1
Exhibit 10.5
Confidential materials omitted and filed
separately with the Securities and Exchange
Commission.
Asterisks denote omissions.
DATED 18th March 1994
--------------------------------------------------------------------------------
LICENCE AND DISTRIBUTION AGREEMENT
FOOTPRINTS INTERNATIONAL LIMITED (1)
(trading as Cambridge CD Publishing)
CASCADE SYSTEMS LIMITED (2)
XXXXXXXX XXXXXX
000 Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000-000 0000
Ref WXB/0004624.01
2
CONTENTS
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No. Heading Page
--- ------- ----
1 DEFINITIONS 1
2 APPOINTMENT 5
3 GRANT OF LICENCES 5
4 CSUK's OBLIGATIONS AND REPRESENTATIONS 6
5 CCDP's OBLIGATIONS 9
6 PAYMENT OF LICENCE FEES 10
7 WARRANTY 13
8 LIMITATION OF LIABILITY 14
9 PATENT, DESIGN RIGHT, COPYRIGHT AND TRADE SECRET INDEMNITY 15
10 PROPRIETARY RIGHTS AND PROTECTION OF PROGRAMS 16
11 TERM AND TERMINATION 18
12 INDEMNITY 20
13 CONFIDENTIALITY 20
14 ENTIRE AGREEMENT 21
15 NON-WAIVER AND AMENDMENT 21
16 NOTICES 21
17 ASSIGNMENT 21
18 CONFLICT WITH STATUTE OR LAW 22
19 COMPLIANCE WITH LAWS 22
20 NO PARTNERSHIP OR AGENCY 23
21 FORCE MAJEURE 23
22 SURVIVAL 23
23 EQUITABLE RELIEF 23
24 APPLICABLE LAW AND JURISDICTION 24
25 HEADINGS 24
SCHEDULE 1: PROGRAMS
SCHEDULE 2: ACCEPTANCE TESTS
SCHEDULE 3: LOCATION OF DEMONSTRATION SITES
ANNEX 1: COPYRIGHT DECLARATION
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THIS AGREEMENT is made the 18th day of March 1994 BETWEEN:
(1) FOOTPRINTS INTERNATIONAL LIMITED whose registered office is at St.
Mary's House, 00 Xxxx Xxxxxx, Xxxxxxxxxxx, XX0 0XX, trading as
Cambridge CD Publishing ("CCDP"); and
(2) CASCADE SYSTEMS LIMITED whose registered office is at 0 Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx XX0 0XX ("CSUK").
WHEREAS:
(A) CCDP has the exclusive world-wide marketing and sub-licensing rights of
certain computer software referred to herein as the "Programs";
(B) CSUK is engaged in the business of systems integration in servicing UK
(and, through its sister company Cascade Systems Inc. formerly known as
Advanced Prepress Systems Inc. USA), newspaper and commercial
publishing companies. It develops, markets and licenses computer
software products for high-end printing techniques in the Territory (as
hereinafter defined); and
(C) CSUK desires to obtain a non-exclusive licence to use the Programs to
develop, market and sub-license software products for newspaper and
commercial publishing companies;
IT IS AGREED as follows:
1. DEFINITIONS
The following terms are defined for the purpose of this Agreement as
follows:
"Acceptance Date" shall mean the date on which the
Program passes the Acceptance Tests
in accordance with Clause 5.3
hereof and incorporating the
Runtime Programs;
"Acceptance Tests" shall mean the tests set forth in
SCHEDULE 2;
"Application Product or Products" shall mean an integrated system
comprising the Index Product linked
with one or more Reader Products,
developed by CSUK using the
Programs in accordance with Clause
3.1.1 hereof and incorporating the
Runtime Programs;
"Customer" shall mean a sub-licensee of one or
more Application Products in the
Territory;
"Index Product" shall mean a server based product
that can extract text from an
Acrobat or other database archive,
apply indexing strategies including
the English stem stripping
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component, to produce an index with
pointers back to the documents held
within the original Acrobat or
other database system archive which
shall have a minimum published list
price of p2500 or the US dollar
equivalent;
"Normal UK Working Hours" shall mean between 9:00 a.m. to
5:00 p.m. (UK time) from Monday to
Friday but excluding public
holidays;
"Product Market" shall mean the newspaper and
magazine prepress industry and
commercial publishing business;
"Program or Programs" shall mean CCDP's indexing and text
retrieval software programs known
as MUSCAT together with a standard
Application Program Interface which
enables the MUSCAT program to be
linked with, and called from, other
programs which use C programming
language as listed in SCHEDULE 1 in
machine readable binary code and
all Updates thereof furnished to
CSUK. "Programs" shall include all
Runtime Programs;
"Proprietary Material" shall mean the Programs, related
instructional and operational
manuals and other documentation,
and all parts, copies and
modifications thereof, and any
other information, in whatever
form, received by CSUK from CCDP
which is identified as being
proprietary or confidential or
which is not generally known or
available to others in the trade;
"Published List Price" shall mean the price set forth in
the local, publically declared and
published price list generally
applicable to purchasers (in US
dollars, Canadian Dollars or pounds
sterling as relevant) (net of Value
Added Tax or any other similar
sales tax payable thereon) for the
Application Product and each part
thereof which is in force from time
to time in that part of the
Territory in which the purchaser
operates;
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"Quarter Day" shall mean 31st March, 30th June,
30th September and 31st December in
any year;
"Reader Product" shall mean a client based product
that can read indexes crated by the
Index Product. The Reader Product
can be created on a number of
different operating system
platforms, each reading the one
index on a central server. The
Reader Product shall have a minimum
published retail list price of p200
or the US dollar equivalent;
"Relevant Part" shall mean that part of the
Application Product which
incorporates, demonstrates and
relates in any other way to the use
and modification of the Runtime
Programs or any part of the Runtime
Programs and which contains an
outline of the basic structure of
the Application Product;
"Runtime Programs" shall mean the Programs or portions
of Programs or other programs which
are derived directly or indirectly
from and which use the technology
incorporated in the Programs, that
are embedded in the Application
Product as a result of CSUK's
operation of the Programs in
accordance with Clause 3.1.1
hereof;
"Sub-Distributor" shall refer to a party which has an
agreement with CSUK to distribute
Application Products to Customers
in accordance with the terms of
this Agreement (including, without
limitation, Cascade Systems
International, Inc.);
"Territory" shall mean the United Kingdom, the
United States of America and
Canada;
"Updates" shall mean error corrections,
modifications, and updates that
CCDP incorporates officially into
its standard UK version of any of
the Programs together with related
documentation.
2. APPOINTMENT
2.1 Subject to the terms and conditions of this Agreement, CCDP hereby
appoints CSUK, and CSUK hereby accepts and agrees to act, as a
non-exclusive value
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added reseller for the Application Product for CCDP in the Product
Market in the Territory for the term of this Agreement.
2.1.1 Notwithstanding anything to the contrary herein, nothing in
this Agreement shall be deemed to limit or prevent CCDP
directly or indirectly, from marketing, distributing,
licensing or selling the Programs anywhere throughout the
world, including in the Territory.
2.1.2 Except as otherwise authorised in writing by CCDP, CSUK shall
not market, demonstrate, advertise, promote, distribute or
engage in other activities to sub-license the Programs outside
the Territory but CSUK may respond to and fill unsolicited
orders for the Runtime Programs as part of or embedded in the
Application Product from Customers and potential Customers in
any member state of the European Community.
2.1.3 CSUK may appoint Sub-Distributors for the sub-licensing of the
Application Product in the Product Market in the Territory,
provided that each Sub-Distributor shall be bound by a written
agreement with CSUK that (i) protects the confidentiality of
CCDP's proprietary rights in, the Proprietary Material to the
same extent as provided herein and (ii) limits the liability
of CCDP to the same extent as provided herein.
3. GRANT OF LICENCES
3.1 CCDP hereby grants to CSUK, and CSUK hereby accepts, the following
non-exclusive and non-transferable licences, to commence on the
Acceptance Date subject to the terms and conditions of this Agreement:
3.1.1 A licence to operate the Programs in the Territory in
accordance with CCDP's instructional and operational manuals
for the purposes of CSUK's internal use, development of
Application Product and providing support services to
Customers.
3.1.2 A licence to market, distribute and sub-license in the Product
Market and in the Territory by itself and through authorised
Sub-Distributors the Runtime Programs as part of and embedded
in Application Products on any operating system. This licence
includes a licence to copy the Runtime Programs in conjunction
with copying Application Products for the purposes of
distributing and sub-licensing Application Products.
3.1.3 A licence to operate the Runtime Programs at two sites in the
UK and at two sites in the USA, such sites to be at the
locations specified in SCHEDULE 3 and at trade shows in the
Territory such as WONA, Xxxxxxx and Ipex for the sole purpose
of demonstrating the operation and capabilities of the
Application Products to prospective Sub-Distributors and
Customers.
3.1.4 A licence to adapt and rewrite but not copy certain related
portions (but not the whole) of the instructional or
operational manuals relating to the Programs in conjunction
with producing documentation for the purposes of distributing
and sub-licensing the Application Products provided that CSUK
shall in each case obtain CCDP's prior written approval of
such documentation, such approval not to be unreasonably
withheld or delayed.
3.2 The licences granted herein do not include the right to distribute or
sub-license Runtime Programs outside the Product Market or separate or
apart from
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Application Products, or as part of rather than the whole of an
Application Product to modify, enhance, translate or crate any works
derivative of the Programs other than Application Products, or to
permit any other person to have access to the Programs by means of time
sharing, remote computing services, networking, batch processing or any
means other than sub-licensing Application Products in accordance with
Clause 3.1.2 hereof.
3.3 The licences granted herein shall commence on the Acceptance Date.
4. CSUK'S OBLIGATIONS AND REPRESENTATIONS
4.1 CSUK shall, at its own expense, promote, publicise and market the
Application Products in the Territory.
4.2 When delivery by CSUK of a copy of a Runtime Program to a
Sub-Distributor or Customer is authorised hereunder, CSUK may copy the
Application Product in which the Runtime Program is embedded, provided
that every such copy of the Runtime Programs provided to a
Sub-Distributor or Customer by CSUK shall include clearly legible
reproductions within the local routine, on related documentation, on
the disc and on the packaging, of CCDP's and, as the case may be, Xx.
Xxxxxx Xxxxxx'x copyright and proprietary rights notices and (unless
CCDP give CSUK not less than 30 days notice in writing not to use such
logo or xxxx) a copy of CCDP's logo and trademark "MUSCAT" as provided
to CSUK from time to time.
4.3 It is acknowledged by CSUK and CCDP that from the Acceptance Date, CSUK
shall own all copyright in the Application Product except for the
Runtime Programs.
4.4
4.4.1 Prior to or upon delivery of an Application Product to a
Customer, CSUK shall or shall ensure that a Sub-Distributor
shall enter into a binding agreement with the Customer to
sub-license the Runtime Programs, which agreement shall
incorporate standard software end-user licence terms which are
adequate to protect CCDP's rights to no lesser extent than in
this Agreement and the form of such agreement shall be
approved by CCDP prior to such agreement becoming binding.
4.4.2 CSUK shall, at its own expense, enforce the obligations of
each Sub-Distributor under the agreement described in Clause
2.1.3 hereof and each Customer under the agreement described
in Clause 4.4.1 hereof, and shall promptly report to CCDP any
breach of such a Sub-Distributor or Customer agreement that
arises out of or relates to the confidentiality of, or CCDP's
or Xx. Xxxxxx Xxxxxx'x proprietary rights in, the Proprietary
Materials or the limitation of CCDP's liability. CSUK shall
assign to CCDP, at CCDP's sole option, any rights that CSUK
has against its Sub-Distributors and Customers under such
agreements arising from any of CCDP's or Xx. Xxxxxx Xxxxxx'x
confidentiality or proprietary rights provisions and, after
any such assignment, CSUK agrees to co-operate fully with CCDP
in any proceedings or actions connected therewith at CCDP's
expense;
4.4.3 CSUK may grant to a Customer an Application Product temporary
trial sub-licence at no charge, provided that:
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(a) the Customer enters into a sub-licence agreement in
accordance with Clause 4.4.1 hereof;
(b) at any one time, the total trial sub-licences in the
Territory shall not exceed sixteen;
(c) each trial sub-licence shall be for a period not to
exceed sixty days; and
(d) CSUK shall pay to CCDP a sub-licence fee as described
in Clause 6.3 hereof for each copy of an Application
Product that a trial sub-licence Customer retains for
longer than sixty days.
4.5 CSUK shall report to CCDP on a quarterly basis the identity, address
and customer contacts of Sub-Distributors. CSUK shall report to CCDP on
a quarterly basis the identity and address of all Customers who have
entered into an agreement with CSUK in accordance with Clauses 2.1.3 or
4.4.1 hereof. At CCDP's request, CSUK shall provide CCDP with periodic
forecasts estimating value and closing dates of Runtime Program
sub-licences and such other information relating to Customers and the
marketing and distribution of the Runtime Programs as CCDP shall
reasonably request from time to time.
4.6 For the term of this Agreement and one year thereafter, CCDP shall have
the right, at its own expense and under reasonable conditions of time
and place from time to time to have a mutually agreed to independent
auditor audit and copy all records of CSUK and its Sub-Distributors
relating to any of CSUK's obligations under this Agreement. In the
event any such audit discloses any material breach of this Agreement by
CSUK or its Sub-Distributors, employees or agents, CSUK shall, in
addition to such other rights and remedies as may be available to CCDP
as the result of such breach, pay to CCDP the full cost of such audit
and copying. CCDP shall use such information only to verify and enforce
CSUK's compliance with the terms of this Agreement, to comply with any
governmental reporting requirement or for such other purposes as
required by law.
4.7 CSUK shall, at its own cost, provide full and adequate maintenance and
support services for the Runtime Programs as part of the Application
Product.
4.8 CSUK shall provide CCDP with a copy (in a form easily readable by CCDP)
of the Relevant Part of each and every version of the Application
Product including related documentation within 90 days of the
completion of each applicable version. CCDP agrees to use such copies
solely for the purposes of back up and reference to be able to support
the Programs and not to sell or part with the possession of such copies
to any third party.
4.9 CSUK and CCDP agree that CSUK shall pay a fee in an amount to be
reasonably agreed from time to time with CCDP, in respect of any copies
of Runtime Programs licensed to third parties where CCDP was directly
or indirectly, the effective cause of such licence or licences.
5. CCDP's OBLIGATIONS
5.1 CCDP shall provide to CSUK a copy of the Programs indicated in
SCHEDULE 1 in binary form for use by CSUK in accordance with Clause
3.1.1 hereof.
5.2 CCDP shall provide to CSUK copies of the related instructional and
operational manuals and other reference documentation which can only be
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copied in accordance with Clause 3.1.4. CCDP will be responsible for
maintaining and updating such reference documentation as it deems
necessary.
5.3 CCDP shall carry out the installation of the Program promptly after
delivery and shall carry out the Acceptance Tests in the presence of
CSUK as soon as possible after installation. CCDP & CSUK agree to take
all reasonable steps to ensure that the Programs pass the Acceptance
Tests. CSUK shall be deemed to accept the Programs upon the date on
which such Programs pass the Acceptance Tests and CCDP shall reasonably
agree on whether such tests have been passed or not provided that if
agreement has not been reached by that date which is thirty calendar
days after the date of this agreement, then this Agreement shall
automatically terminate. Upon such termination, CSUK shall promptly
return all Proprietary Material to CCDP in accordance with Clause 10.7,
the provisions of Clause 11 shall not apply and CCDP shall have no
obligation to refund the amounts set forth under Clauses 6.1.1 and
6.1.2 hereof.
5.4 CCDP shall provide, free of charge, CSUK with any Updates as soon as
reasonably practicable.
5.5 CCDP shall, subject to the availability of personnel and other
resources, provide to CSUK, during Normal UK Working Hours, consulting
services per day or per half day at CSUK's request. Up to and including
31st December 1994 the cost of such consulting services shall be
p350.00 per man day and p175.00 per half day and from 1st
January 1995 onwards the cost shall be such amount as is agreed between
CSUK and CCDP.
5.6 CCDP shall, subject to the availability of personnel and other
resources, provide to CSUK during normal UK working hours a reasonable
amount of hotline support and advice by telephone on the Programs and
such advice shall be free of charge to CSUK.
5.7 CCDP agrees to provide, free of charge, CSUK with 10 man-days of
training in the use of the Programs. The timing of such days shall be
reasonably agreed between CCDP and CSUK. Any further training required
by CSUK shall be on terms and at a charge to be agreed from time to
time by CCDP and CSUK.
5.8 Notwithstanding Clause 7.4, CCDP agrees to use all reasonable
endeavours to rectify any errors or defects in the Programs which are
reported in writing to CCDP by CSUK, by the issue of fixes or a
corrected version of the Programs or the applicable part of the Program
provided that CCDP shall have no obligation to assist CSUK in the
circumstances set forth in Clauses 7.3.2, 7.3.3 or 7.3.4 or 7.3.5.
5.9 CCDP shall within 2 months of the date of this Agreement deposit the
source code of the Programs in human readable form with the National
Computing Centre ("NCC") and enter into a source code deposit agreement
with the NCC. Such agreement will all CSUK to have right of access to
the source code solely for the purpose of maintaining the Runtime
Programs if CCDP shall be the subject of any of the events set forth in
Clause 11.3.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
6. PAYMENT OF LICENCE FEES
6.1 CSUK shall pay to CCDP ******* as a non-refundable licence fee and
maintenance fee for the licence granted in Clause 3.1.1 hereof. These
fees are due and payable (or due and paid in the case of 6.1.1 only) as
follows:
6.1.1 as to ******* on the signing of the heads of agreement between
CCDP and CSUK;
6.1.2 as to ******* on the date hereof; and
6.1.3 as to ******* on the Acceptance Date.
6.2 On account and in anticipation of the licence fees due under this
Agreement in accordance with Clause 6.3 CSUK agrees to pay CCDP the sum
of ******* of which ******* is payable not later than 16th May 1994 and
******* is payable on whichever is the earlier of 31st December 1994 or
the date on which the first sale of Application Product is made in
accordance with Clause 3.1.2 of this Agreement. Such sums shall not be
refundable to CSUK under any circumstances.
6.3
6.3.1 CSUK shall provide CCDP with a copy of its current Published
List Price for the Application Product in each part of the
Territory as soon as such price has been determined. CSUK
shall not amend the Published List Price more often than once
in any period of 3 months ending on a Quarter Day;
6.3.2 On any licence of an Application Product or any part thereof
granted by CSUK to a Sub-Distributor or Customer (except for
an Application Product delivered pursuant to a trial licence
unless payment of a sub-licence fee is required by Clause
4.4.3) CSUK shall pay to CCDP a licence fee of ***** of the
Published List Price.
6.4 CSUK shall within 30 days after each Quarter Day during the continuance
of this Agreement and after the end of each month falling within one
year after its termination send to CCDP a statement showing the
aggregate Published List Price of each Application Product or any part
sold in the Territory by CSUK to a Sub-Distributor or Customer during
that quarter and the licence fee thereon to which CCDP is entitled
pursuant to Clause 6.3 and at the same time send to CCDP a remittance
in sterling in respect to that amount.
6.5 CSUK shall keep separate records and accurate accounts of all sales of
the Application Product or any part made by it or its Sub-Distributors
in the Territory and shall permit CCDP or its duly appointed
representatives to inspect all such records and accounts and take
copies thereof at all reasonable times and all such records and
accounts shall be kept confidential by CCDP in accordance with the
terms of Clause 13.2 hereof.
6.6 In addition to the provisions of Clause 4.6 hereof, CSUK shall, if so
requested by CCDP within 30 days after the end of any calendar year of
this Agreement or after the end of the 12 month period following the
termination of this Agreement, provide to CCDP a report from its
external auditors as to accuracy of the information submitted by it in
respect of that year or period pursuant to
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Clause 6.4. Such report shall be at CCDP's expense unless the
information submitted by CSUK in respect of that year or period
pursuant to Clause 6.4 is found to be inaccurate in any material way in
which case CSUK shall bear the full cost of such report.
6.7 CSUK shall pay the amounts due to CCDP hereunder without any deduction
other than such amount (if any) as it is required to deduct by law. IF
CSUK is required to make such deduction, it shall do all things in its
power which may be reasonably necessary to enable or assist CCDP to
claim exemption therefrom under any double tax or similar agreement
from time to time in force and shall from time to time give to CCDP
proper evidence as to the deduction and payment over of the tax or sums
withheld.
6.8 CCDP shall have no obligation to refund to CSUK any licence fees for
Application Products.
6.9 CSUK shall pay, as and when chargeable, all import duties, levies or
imposts, and all sales, use, value added, property, or other taxes of
any nature, assessed upon or with respect to any Programs, Application
Products or other products or services ordered by CSUK from CCDP
(including, without limitation, the licence fees in Clause 6.3) which
are imposed by any community of nations, nation, or political
subdivision thereof, but excluding taxes based on CCDP's net income or
profits. CSUK shall, and shall cause its Sub-Distributors to, pay on or
before their due dates all such taxes, fees, duties and charges which
arise out of or in connection with this Agreement or any licence or
sub-licence granted herein or any use of the Programs. In the event
CCDP is required at any time to pay any such tax, fee, duty or charge,
CSUK shall promptly reimburse CCDP therefor. If any successor of CSUK
which is resident outside the United Kingdom is required by law to make
any deduction or to withhold from any sum payable to CCDP by CSUK or
any successor hereunder, then the sum payable by CSUK or any successor
upon which the deduction or withholding is based shall be increased to
the extent necessary to ensure that, after all deduction and
withholding, CCDP receives and retains, free from liability for any
deduction or withholding, a net amount equal to the amount CCDP would
have received and retained in the absence of required deduction or
withholding.
6.10 Save insofar as otherwise expressly provided in this Agreement, all
amounts stated in this Agreement are expressed exclusive of value added
tax or other applicable sales tax.
6.11 CSUK shall pay to CCDP interest on any amount payable to CCDP hereunder
which is not paid promptly and when due at a rate equal to 3% per annum
over the base rate from time to time of Barclays Bank Plc.
6.12 All payments to CCDP hereunder shall be paid in pounds sterling unless
otherwise agreed by CCDP in writing.
6.13 All shipments to CSUK hereunder shall be ex-works CCDP's offices in
Cambridge and all costs for shipping and insurance shall be paid for by
CSUK.
7. WARRANTY
7.1 Subject to the other provisions of this Clause 7, CCDP warrants that:
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7.1.1 for ninety days after delivery of the Programs to CSUK in
accordance with Clause 5.1 above, the media in which the
Programs are stored shall be free from defects in materials,
design and workmanship; and
7.1.2 that CCDP has the right power and authority to license the
Programs upon the terms and conditions of this Agreement; and
7.1.3 that to its knowledge and belief the Programs do not infringe
the copyright of any third party.
7.2 CCDP's sole responsibility under this warranty shall be to replace any
defective media returned by CSUK during the ninety day period free of
charge.
7.3 CCDP shall have no liability under the foregoing warranty, to the
extent permitted by applicable law, to anyone other than CSUK or to the
extent that:
7.3.1 within ninety days after delivery of the Programs to CSUK,
CSUK has failed to report in writing any defect claimed to be
a breach of warranty.
7.3.2 the Program has been misused or exposed to environmental or
operating conditions other than those specified by CCDP;
7.3.3 the Program has been damaged, altered by accident, neglect,
misuse or other abuse;
7.3.4 the claimed defect has been caused, in whole or in part, by a
person or persons other than CCDP, or by CSUK or the
Application Product developed by CSUK or other products or
equipment not manufactured or developed by CCDP;
7.3.5 the claimed defect is in a superseded version of the Program.
7.4 CSUK acknowledges and understands that software in general, including
the Programs is not error free and agrees expressly that the existence
of any errors or defects in the Programs shall not under any
circumstances constitute a breach of this Agreement.
7.5 THE EXPRESS WARRANTY SET FORTH IN THIS CLAUSE 7 IS THE ONLY WARRANTY
MADE BY CCDP WITH RESPECT TO THE PROGRAMS AND ANY SERVICES PROVIDED BY
CCDP. CCDP MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY
CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CCDP'S EXPRESS
WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO
OBLIGATION OR LIABILITY SHALL ARISE OUT OF, CCDP RENDERING TECHNICAL OR
OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PROGRAMS.
7.6 CSUK and its Sub-Distributors shall make no representation or warranty
concerning the quality, performance or other characteristics of the
Runtime Programs as embedded in the Application Product other than
those which are consistent in all respects with, and do not expand the
scope of, the warranties of CCDP set forth in this Agreement.
7.7 CSUK acknowledges that it has considerable expertise in producing
software products for the Product Market and that it has carefully
considered and accepted the provisions of Clause 7 and Clause 8 as
being commercially reasonable in view of the purposes of this
Agreement.
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8. LIMITATION OF LIABILITY
8.1 CCDP's liability (including liability for the acts and omissions of its
employees, agents and sub-contractors), whether in contract, tort
including negligence, or otherwise, arising out of or in connection
with the Programs or this Agreement shall not exceed the amounts paid
to CCDP by CSUK for the applicable copy of the Program that gave rise
to any claim.
8.2 IN NO EVENT SHALL CCDP OR ITS LICENSORS BE LIABLE FOR SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES,
INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE,
LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS SUFFERED BY CSUK
AS A RESULT OF AN ACTION BROUGHT BY A THIRD PARTY OR LOSS OF BUSINESS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF
THE PROGRAMS OR CCDP'S PERFORMANCE OF SERVICES OR OF ANY OTHER
OBLIGATIONS RELATING TO THIS AGREEMENT OR THE PROGRAMS, WHETHER OR NOT
CCDP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Nothing in this Agreement shall be taken to exclude any liability for
death or personal injury which cannot be excluded or restricted under
the terms of the Unfair Contract Terms Xxx 0000.
8.4 CSUK shall include in each Customer sub-license agreement and each
Sub-Distributor agreement relating to any of the Programs appropriate
provisions effective to limit the liability of CCDP as provided in this
Agreement.
8.5 IN NO EVENT SHALL CCDP BE LIABLE FOR ANY DAMAGES OR CLAIMS ARISING OUT
OF OR RELATED TO CSUK'S UNAUTHORISED USE OF CCDP'S TRADEMARKS.
8.6 CCDP shall always be afforded reasonable opportunity to correct any
deficiency in the Programs before it is considered to be in breach of
its obligations under this Agreement.
8.7 With the exception of claims in respect of death or personal injury,
the parties shall be discharged of all liability in respect of any
transaction subject to this Agreement, whether in contract or in tort,
including negligence, unless suit is brought within three years after
the party bringing the suit first becomes, or should reasonably have
become aware of the facts constituting the cause of action.
9. PATENT, DESIGN RIGHT, COPYRIGHT AND TRADE SECRET INDEMNITY
9.1 CCDP shall defend or, at it option, settle, any claim, action or
proceeding brought against CSUK on grounds (a) that the Program
infringes a United Kingdom patent, design right, copyright or trade
secret or (b) that CCDP does not have the right to grant the licenses
granted herein, and shall indemnify CSUK against all damages and costs
reasonably incurred (to be taxed if not agreed) against CSUK in any
such action or proceeding which results from any such claim. CCDP shall
have no liability under this Clause 9 unless CSUK (c) promptly notifies
CCDP in writing of the claim (d) gives CCDP full authority, information
and assistance to defend such claim and (e) gives CCDP
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14
sole control of the defence of such claim and all negotiations for the
compromise or settlement thereof. If a Program or any part thereof
becomes, or in CCDP's opinion is likely to become, the subject of a
valid claim of infringement or the like under any patent, design right,
copyright or trade secret law, CCDP shall have the right, at its option
and expense, either to obtain for CSUK a licence permitting the
continued use of the Program or such part, to replace or modify it so
that it becomes non-infringing, or to refund an amount equal to the
depreciated licence fee paid by CSUK for the Program (calculated on a
straight line basis over a five-year life) and to terminate the license
therefor. CCDP shall have no liability hereunder for any costs incurred
or settlement entered into without its prior written consent. CCDP
shall have no liability hereunder with respect to any claim based upon
(f) the operation of an Application Program or the combination of the
Program with other products insofar as such claims relate to other
products not furnished by CCDP (g) any addition to or modification to
the Program by any person or entity other than CCDP or (h) CCDP
furnishing to CSUK any information, data, service and applications
assistance, other than the Programs and the instructional and
operational manuals relating thereto.
9.2 THE PROVISIONS OF THIS CLAUSE 9 STATE THE EXCLUSIVE LIABILITY OF CCDP
AND THE EXCLUSIVE REMEDY OF CSUK OR ITS SUCCESSORS WITH RESPECT TO ANY
CLAIM OF PATENT, DESIGN RIGHT, COPYRIGHT, TRADE SECRET OR ANY OTHER
INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY THE PROGRAMS OR CLAIM THAT
CCDP LACKS THE RIGHT TO GRANT THE LICENCES GRANTED HEREIN, ANY PART
THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND INDEMNITIES WITH RESPECT THERETO.
10. PROPRIETARY RIGHTS AND PROTECTION OF PROGRAMS
10.1 CSUK agrees that the Programs, related documentation, manuals and other
Proprietary Material provided to CSUK hereunder are proprietary
information of CCDP and its licensors and that CCDP and its licensors
shall retain all title, copyright, design, patent and other proprietary
rights to all Proprietary Material and to all copies thereof.
10.2 CSUK acknowledges that the Proprietary Material constitutes a valuable
asset of CCDP. CSUK shall hold the Proprietary Material strictly
confidential and shall utilise it only in accordance with the terms of
this Agreement. Except as expressly permitted by this Agreement, CSUK
shall limit the use of, and access to, the Programs and all other
Proprietary Material to its employees or agents whose use of or access
to the Programs and all other Proprietary Material is necessary for
CSUK's business. CSUK shall, by all appropriate means, prevent
unauthorised disclosure, publication, display or use of any Proprietary
Material including, where applicable, obtaining written binding
agreements for any disclosees to keep such Proprietary Material in
confidence to the same extent at least as CSUK is so bound hereunder.
10.3 CSUK shall not remove any copyright, proprietary rights or
confidentiality notices included in or affixed to any Proprietary
Material, and shall legibly
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15
reproduce all such notices on any copies of Proprietary Material which
CSUK shall make.
10.4 Except as specifically permitted in Clause 3.1, Clause 10.5 and in this
Clause 10.4, CSUK shall not copy, alter, modify, adapt or reverse
engineer any Programs, including, without limitation, any related
documentation, whether by converting, translating, de-compiling,
disassembling, creating derivative works, or merging the Programs or
any part thereof with any other software. If CSUK wishes to obtain
information necessary to achieve interoperability of an independently
created computer program with the Programs or other programs
("Interoperability Information"), then CSUK shall notify CCDP in
writing, specifying the nature of the Interoperability Information it
needs and the purposes for which it will be used. CCDP may, at its
option, make available such Interoperability Information to CSUK and
CSUK shall provide all information and assistance reasonably requested
by CCDP to enable CCDP to make such Interoperability Information. If
CCDP decides not to make such Interoperability Information available to
CSUK, then provided that CSUK complies with the conditions set forth in
Clause 50B(3) of the Copyright, Designs and Patents Xxx 0000, CSUK
shall be entitled to reverse engineer the Programs solely to obtain
such Interoperability Information and to use such Interoperability
Information to the extent necessary for the purpose of achieving
interoperability of an independently created computer program with the
Programs or other programs.
10.5 Except as specifically permitted in Clause 3.1, Clause 10.4 and this
Clause 10.5, CSUK shall not copy any of the Proprietary Material
without the prior written permission of CCDP. CSUK shall have the right
to make copies of the object code of the Programs for back-up purposes,
to replace a defective copy or for program error verification (but
excluding error correction) so far as is necessary for the purposes of
CSUK as a lawful user as defined in Clause 50A of the Copyright,
Designs and Patent Xxx 0000.
10.6 CSUK shall use CCDP's trademark MUSCAT in accordance with the terms of
Clause 4.2 only but not otherwise.
10.7 Within thirty days after the termination or expiration of this
Agreement for any reason, CSUK shall return to CCDP all materials
provided to it by CCDP hereunder, including, without limitation, all
Proprietary Material and all copies thereof in the possession, custody
or control of CSUK and shall destroy or render unusable all other
Proprietary Material and copies thereof which for any reason cannot be
delivered to CCDP. In such event, an executive officer of CSUK shall
certify in writing to CCDP that all Proprietary Material has been
delivered to CCDP or destroyed and that use of the Program has been
discontinued by CSUK. In no event shall CSUK be entitled to any refund
or credit against any portion of the licence fees by reason of the
return or destruction of Programs pursuant to this Clause 10.7.
11. TERM AND TERMINATION
11.1 This Agreement shall, subject to clause 5.3, be effective from the date
hereof and shall remain in effect for an initial five year period
thereafter, unless earlier terminated as provided herein.
11.2 If CSUK shall:
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16
11.2.1 disclose, publish, display or otherwise make available any
Proprietary Material to any person in violation of Clause 10
hereof; or
11.2.2 materially fail to perform, or be in material breach of any of
its obligations hereunder (including any payment obligation)
and, if such breach is capable of remedy, fail to remedy such
failure or breach within thirty days after receipt of notice
from CCDP with respect thereto
then CCDP may terminate this Agreement and the licences granted to CSUK
and its Sub-Distributors hereunder by giving written notice of
termination to CSUK, effective immediately.
11.3 This Agreement may be terminated by CCDP if CSUK shall convene a
meeting of its creditors, or if a proposal shall be made for a
voluntary arrangement within Part I of the Insolvency Xxx 0000, or a
proposal for any other composition scheme or arrangement with (or
assignment for the benefit of) its creditors, or if CSUK shall be
unable to pay its debts within the meaning of Clause 123 of the
Insolvency Xxx 0000, or if a trustee receiver administrative receiver
or similar officer is appointed in respect of all or any part of the
business or assets of CSUK, or if a petition is presented or a meeting
is convened for the purpose of considering a resolution, or other steps
are taken for the winding up of CSUK, or for the making of an
administration order (otherwise than for the purpose of an amalgamation
or reconstruction), or upon the occurrence of the equivalent events
under any other relevant jurisdiction.
11.4 Expiration or termination of this Agreement (a) shall not relieve
either party of any obligation to pay amounts due as a result of
transactions occurring prior to such expiration or termination and (b)
shall not, subject to Clause 5.3, terminate the Application Product
licences granted to Customers in accordance with this Agreement.
Following any termination or expiration of this Agreement, CSUK shall
return all Proprietary Material to CCDP as set forth in Clause 10.7 and
CSUK shall supply CCDP with a complete listing of all Customers and
Sub-Distributors who have copies of the Runtime Programs. Such listing
shall include each Customer and Sub-Distributor's name, address,
telephone number, customer contact, and the Program, platform operating
system and host identification number for each Application Program
licensed to each such Customer or Sub-Distributor.
11.5 CSUK acknowledges that this Agreement is for a limited period only. The
expiration or termination of this Agreement at the end of the original
term or any renewal term shall not give rise to the payment of any
indemnity, compensation or damages whatsoever by either party to the
other. Without limiting the generality of the foregoing, CSUK agrees
that the expiration of this Agreement or the termination of this
Agreement by either party at the end of the original term or any
renewal term shall not entitle CSUK to any termination or severance
compensation or to any payment in respect of any goodwill established
by CSUK during the initial term of this Agreement, or any renewals
hereof, or render CCDP liable for damages on account of the loss of
prospective profits loss of opportunity or any consequential loss or on
account of any expenditure, investment or obligation incurred or made
by CSUK. CSUK further agrees to make every effort to minimise its costs
and
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expenses related to this Agreement in the event this Agreement is
terminated or not extended for an additional term.
11.6 Following expiration of this Agreement, but not termination pursuant to
Clauses 11.2.1 or 11.3 hereof, CCDP shall grant to CSUK a license to
use the Programs for the sole purpose of providing Application Product
maintenance services to CSUK's Customers, provided that (a) such
licence shall be subject to the terms and conditions of CCDP's
then-standard written licence agreement for such Programs (b) CSUK
shall enter into and execute such agreement (c) CSUK shall pay CCDP
maintenance fees in accordance with CCDP's then-current price list and
(d) CSUK shall comply with all the other terms of Clause 11 hereof.
12. INDEMNITY
CSUK agrees to indemnify and hold harmless CCDP and its officers,
directors, employees and agents, from and against any and all claims,
demands, costs and liabilities (including all reasonable legal fees)
arising out of or related to any representation, action or omission by
CSUK or a Sub-Distributor inconsistent with the terms of this
Agreement, including, without limitation, CSUK's unauthorised use of
CCDP's trademarks, CSUK's failure to perform its obligations under
Clause 4.4 hereof provided that (a) CCDP shall notify CSUK in writing
of such a claim and (b) CCDP shall, to the extent reasonable,
co-operate with CSUK in the defence or settlement of such claim.
13. CONFIDENTIALITY
13.1 Both parties agree that neither CSUK nor CCDP shall disclose the nature
or substance matter of this Agreement or mention the other party's name
in connection with this Agreement in any marketing or publicity
material or other similar communications to third parties, without the
other party's prior consent in writing, such consent not to be
reasonably withheld or delayed provided that CSUK and CCDP hereby agree
that a formal public announcement of this Agreement shall be made
during the week following the date of this Agreement and the content of
that formal public announcement may be repeated without further
consent.
13.2 CSUK may from time to time impart to CCDP certain confidential
information relating to the Application Products, and any other
software developed by CSUK including specifications therefor. CCDP
agrees that it shall for the duration of this Agreement and for a
period of 5 years after the date of termination or expiration of this
Agreement, use all such confidential information which is clearly
identified as being proprietary or confidential solely for the purposes
of this Agreement and shall not disclose, whether directly or
indirectly to any third party such information other than as required
to carry out the purposes of this Agreement. In the event of such
disclosure, CCDP will obtain from such third parties duly binding
agreements to maintain in confidence the information to be disclosed to
the same extent at least as CCDP is so bound hereunder.
-17-
18
14. ENTIRE AGREEMENT
This Agreement, including the Schedules and Annex attached hereto, sets
forth the entire agreement and understanding of the parties with
respect to the subject matter hereof, and supersedes all prior oral and
written agreements and understandings relating thereto.
15. NON-WAIVER AND AMENDMENT
No waiver, alteration, modification, or cancellation of any of the
provisions of this Agreement shall be binding unless made in writing
and signed by both CCDP and CSUK. The failure of either CCDP or CSUK at
any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce such
provision. No remedy referred to in this Agreement is intended to be
exclusive, but each shall be cumulative and in addition to any other
remedy referred to herein or otherwise available at law, in equity or
otherwise.
16. NOTICES
All notices to be given in connection with this Agreement shall be
effective upon receipt, shall be made in writing and shall be
sufficiently given if personally delivered or if sent by courier or
other express mail service, postage prepaid, addressed to the party
entitled or required to receive such notice at the address for such
party set forth on the signature page hereof. Either party may by such
notice to the other change such address.
17. ASSIGNMENT
Neither CSUK or CCDP may assign any of their respective rights under
this Agreement to any person and delegate any of their respective
duties hereunder to any person or entity without the express prior
written consent of the other party. CCDP acknowledges that CSUK may
want to assign its rights and delegate its duties to Cascade
International Inc. or Cascade Systems Inc., formerly known as Advanced
Prepress Systems Inc. in the USA and CCDP shall not unreasonably refuse
its consent to assignment or delegation to such third parties. The
parties agree that, in particular but without limitation, it shall be
reasonable for CCDP to withhold its consent if such assignment or
delegation would increase its liabilities or reduce its rights
(including enforcement rights) under this Agreement under any relevant
anti-trust or competition laws or intellectual property laws. Subject
to the foregoing, this Agreement shall be binding upon, and inure to
the benefit of, CCDP and CSUK and their respective legal
representatives, successors and permitted assigns.
18. CONFLICT WITH STATUTE OR LAW
In the event that any provisions contained in this Agreement or any
part thereof shall for any reason be held invalid, illegal or
unenforceable in any respect by a court or administrative body of
competent jurisdiction, to such extent such provision shall be deemed
null and void and severed from this Agreement, and the remainder of
this Agreement shall remain in full force and
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19
effect. The parties hereby agree to attempt to substitute for any
invalid or unenforceable provision a valid or enforceable provision
which achieves to the greatest extent possible the economic, legal and
commercial objectives of the invalid or unenforceable provision.
19. COMPLIANCE WITH LAWS
19.1 CSUK shall comply with all applicable export control laws, including
export controls imposed by the United Kingdom government or any other
relevant jurisdiction. Without limiting the generality of the
foregoing, CSUK agrees that it shall not export or re-export any
Programs, or the direct product thereof, to any country without first
obtaining all necessary and required licences, consents and approvals.
CSUK acknowledges that shipments of the Programs are subject to the
export laws of the United Kingdom and that such laws could delay or
preclude delivery of Programs in the future. CSUK shall, at its sole
cost and expense, obtain and maintain in effect all permits, licences
and other consents necessary to the conduct of its activities
hereunder.
19.2 CSUK shall inform CCDP of any and all government requirements, approval
procedures or filings in the Territory relevant to this Agreement. If
any approval of this Agreement or related agreements is required to
make it effective or to make CCDP's rights hereunder enforceable
(including, without limitation, for any licences to the US Federal
Government or an agency thereof), or otherwise to protect CCDP's
proprietary rights hereunder, or to comply with exchange regulations or
other requirements so as to allow payments to CCDP in connection with
the licensing of the Application Product, CSUK shall immediately take
all such required action, and any charges incurred shall be or the
account of CSUK. CSUK shall keep CCDP currently informed of its efforts
in this area. CCDP shall have no obligation to export Programs to any
country in the Territory until CSUK has provided CCDP with satisfactory
evidence that either any such approval or filing is not required or all
such requirements have been met and all such approvals and filings have
been obtained.
20. NO PARTNERSHIP OR AGENCY
CSUK agrees that it, and each Sub-Distributor, is an independent
contractor and that this Agreement and the relations between CCDP and
CSUK hereby established do not constitute a partnership, joint venture,
agency or contract of employment between them, or any other similar
relationship.
21. FORCE MAJEURE
Neither CSUK nor CCDP shall be liable for any delays in the performance
of any of their respective obligations hereunder due to causes beyond
their reasonable control, including, without limitation, fire, strike,
war, riots, acts of any civil or military authority, acts of God,
judicial action, unavailability or shortages of labour, materials or
equipment, failure or delays in delivery of vendors and suppliers or
delays in transportation.
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20
22. SURVIVAL
CSUK agrees that the provisions of Clauses 6, 7, 8, 9, 10, 11, 12,
13.1, 19, 22, 23 and 24 shall survive the expiration or earlier
termination of this Agreement for any reason.
23. EQUITABLE RELIEF
23.1 The covenants and agreements of CSUK and CCDP in Clauses 4.4, 10 and
13.2 hereof are of a special and unique character, and CSUK and CCDP
acknowledge that money damages alone will not reasonably or adequately
compensate CCDP or CSUK for any breach of such covenants and
agreements.
23.2 CCDP and CSUK expressly agree that in the event of the breach or
threatened breach of any such covenants or agreements, in addition to
other rights or remedies which CCDP or CSUK may have, at law, in
equity, or otherwise, CCDP or CSUK shall be entitled to injunctive or
other equitable relief compelling specific performance of, and other
compliance with, the terms of such Clauses.
24. APPLICABLE LAW AND JURISDICTION
24.1 This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of England and the parties hereto agree to
submit to the non-exclusive jurisdiction of the English Courts.
25. HEADINGS
25.1 Headings to sections in this Agreement are for the purposes of
information and identification only and shall not be construed as
forming part of this Agreement.
AS WITNESS the parties hereto have caused this Agreement to be signed the date
first above written by their respective duly authorised signatories.
CCDP: CSUK:
XX. XXXXXX XXXXXX XXXX XXXXX
/s/ Xxxxxx Xxxxxx /s/ Xxxx Xxxxx
------------------------------------- ---------------------------------------
XXXX XXXXXX XXXX XXXXXXXX
/s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxxxx
------------------------------------- ---------------------------------------
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SIGNED by Xx. Xxxxxx Xxxxxx and Xxxx SIGNED by Xxxx Xxxxx and Xxxx
Xxxxxx for and on behalf of Xxxxxxxx for and on behalf of
FOOTPRINTS INTERNATIONAL LIMITED CASCADE SYSTEMS LIMITED of
(trading as Cambridge CD Publishing) of St. Xxxxx Yarn Mill
St. Xxxxx Innovation Centre Whitefriars
Xxxxxx Xxxx Xxxxxxx XX0 0XX
Xxxxxxxxx XX0 0XX in the presence of:
in the presence of:
/s/ X.X. Xxxxxx /s/ Xxxxxx Xxxx
X.X. Xxxxxx Xxxxxx Xxxx
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SCHEDULE 1
The Programs delivered to Cascade Systems Ltd. under this agreement comprise the
following items:
A. Muscat modules as listed below in List 1, delivered as binary modules
for both little-endian and big-endian machines.
B. "C" software drivers for the MUSCAT API, including machine code
interpreter. These enable Muscat to be implemented on most machines which
recognise "C".
C. Executables for MUSCAT running under DOS, Windows and SUN OS4.1.1.
23
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
LIST 1
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
*******
24
DATED 28th April 1994
--------------------------------------------------------------------------------
DEED OF ASSIGNMENT AND AMENDMENT
relating to
a Software Licence and Distribution Agreement
FOOTPRINTS INTERNATIONAL LIMITED (1)
(trading as Cambridge CD Publishing)
CASCADE SYSTEMS LIMITED (2)
CASCADE SYSTEMS INCORPORATED (3)
XXXXXXXX XXXXXX
000 Xxxxxx
Xxxxxx
XX0X 0XX
Tel: 000 000 0000
Ref: WXB/0008894.01
25
THIS DEED OF ASSIGNMENT AND AMENDMENT is made this 28th day of April 1994
BETWEEN:
(1) FOOTPRINTS INTERNATIONAL LIMITED whose registered office is at St.
Mary's House, 00 Xxxx Xxxxxx, Xxxxxxxxxxx, XX0 0XX, trading as
Cambridge CD Publishing ("CCDP");
(2) CASCADE SYSTEMS LIMITED whose registered office is at 0 Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx XX0 0XX ("CSUK"); and
(3) CASCADE SYSTEMS INCORPORATED whose principal place of business is at
0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000, XXX ("CSUSA")
WHEREAS:
(A) By virtue of a Software Licence and Distribution Agreement (the
"Agreement") dated 18th March 1994 between CCDP and CSUK, CCDP has
granted to CSUK the right to use the Programs in the Product Market in
the Territory (as all such terms are therein defined) upon the terms
and conditions of this Agreement.
(B) CSUK wishes to assign and grant to CSUSA all rights and benefits and
delegate to CSUSA all duties in and to the Agreement and CCDP consents
to such assignment on the terms and conditions and subject to the
amendments to the Agreement hereinafter appearing.
NOW THIS DEED WITNESSETH as follows:
1. In consideration of the sum of P1 (receipt of which is hereby
acknowledged) CSUK hereby assigns and grants to CSUSA all those rights
and benefits contained in the Agreement.
2. The Agreement shall from the date above written be amended to
incorporate the following changes:
2.1 In Clause 1 the words "which shall have a minimum published list price
of P2,500 or the US dollar equivalent" at the end of the
definition of the "Index Product" shall be deleted;
2.2 In Clause 1 the words "The Reader Product shall have a minimum
published retail list price of P200 or the US dollar equivalent"
at the end of the definition of the "Reader Product" shall be deleted;
2.3 In Clause 3.2 the words "part of rather than the whole of" shall be
deleted and the following words shall be substituted therefor "a
separate Index Product or Reader Product which is not part of";
26
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
2.4 An additional Clause 5.10 shall be added as follows: "In this
Agreement, the reasonable food, lodging, travel and incidental costs
and expenses incurred by CCDP's employees or agents in connection with
the provision of any consulting or training services shall be borne by
CSUK";
2.5 In Clause 6.3.1 the words "CSUK shall not amend the Published List
Price more often than once in any period of 3 months ending on a
Quarter Day" shall be deleted;
2.6 In Clause 6.3.2 after the words "licence fee of ***** of the Published
List Price" the following words shall be added" and such licence fee
shall in no event be less than ***** for each Index Product and *****
for each Reader Product";
2.7 In Clause 6.4 the words "in sterling in respect of that amount" shall
be deleted and the following words shall be added in substitution
therefor "in the same currency, namely US dollars, Canadian Dollars or
pounds sterling as the currency of the Published List Price applicable
to the sale."
2.8 All other terms and conditions of the Agreement shall remain in full
force and effect and references herein shall be references to the
Agreement as amended and/or supplemented by the terms hereof.
3. CSUSA hereby agrees to observe and comply with all the terms of the
Agreement and to perform from the date hereof all obligations on the
part of CSUK to be performed by virtue of the Agreement as if CSUSA had
been a party to the Agreement and had been defined therein as "CSUK"
and shall keep CCDP indemnified against any non-observance or
non-performance of the same.
IN WITNESS whereof this document has been executed and delivered as a Deed the
day and year first before written.
EXECUTED as a Deed
for and on behalf of FOOTPRINTS
INTERNATIONAL LIMITED
in the presence of:
Director: /s/ Xxxx Xxxxxx
Director
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27
EXECUTED as a Deed
for and on behalf of CASCADE
SYSTEMS LIMITED
in the presence of:
Director: /s/ Xxxx Xxxxx
Director: /s/ X.X. Xxxxx
EXECUTED as a Deed
for and on behalf of CASCADE
SYSTEMS INCORPORATED
in the presence of:
Director: /s/ Xxxxxxx X. XxXxxxx
Director: /s/ Xxxxxx Xxxxxx
-3-
28
DATED: 2ND FEBRUARY 1996
(1) MUSCAT LIMITED
(2) CASCADE SYSTEMS INCORPORATED
(3) CASCADE SYSTEMS LIMITED
-------------------------------------------
FIRST ADDENDUM TO A LICENCE AND
DISTRIBUTION AGREEMENT
DATED 18TH MARCH 1994
-------------------------------------------
29
THIS FIRST ADDENDUM is made the 2nd day of February 1996
BETWEEN:
(1) MUSCAT LIMITED whose registered office is at Xx. Xxxx'x Xxxxx, 00 Xxxx
Xxxxxx, Xxxxxxxxxxx XX0 0XX ("CCDP"); and
(2) CASCADE SYSTEMS INCORPORATED whose principal place of business is at
0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 XXX ("CSUSA"); and
(3) CASCADE SYSTEMS LIMITED whose registered office is at 0 Xxx Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx XX0 0XX ("CSUK")
WHEREAS:
(A) CCDP and CSUK entered into a Licence and Distribution Agreement on 18th
March 1994 ("the Licence Agreement") and CCDP, CSUK and CSUSA assigned
and amended the Agreement by a Deed of Assignment and Amendment on the
28th April 1994 ("the Deed of Assignment"). The Deed of Assignment and
the Licence Agreement shall jointly be referred to as "the Agreement".
(B) The Parties hereby wish to amend and extend certain terms of the
Agreement.
NOW THIS DEED WITNESSETH AS FOLLOWS:
PART I
1. CCDP, CSUK and CSUSA agree that with effect from 28th April 1994, the
Deed of Assignment be amended to incorporate the following changes:
1.1 Clause 1 shall be deleted and the following shall be
substituted therefor: "In consideration of the sum of P1
(receipt of which is hereby acknowledged) CSUK hereby assigns
and grants to itself and CSUSA to be held jointly as tenants
in common all those rights and benefits contained in the
Agreement as if CSUSA and CSUK had both been parties to the
Agreement and both had been defined therein as "CSUK".
1.2 Clause 3 shall be deleted and the following shall be
substituted therefor: "CSUSA and CSUK hereby agree to comply
with all the terms of the Agreement and to be jointly and
severally liable to CCDP for and to perform from the 28th
April 1994, all the obligations on the part of CSUK to be
performed by virtue of the Agreement as if CSUSA and CSUK both
had been parties to the Agreement and both had been defined
therein as "CSUK".
PART II
30
1. CCDP, CSUK and CSUSA agree that this First Addendum is supplementary to
and forms part of the Agreement which from the date above written be
amended to incorporate the following changes.
2. Clause 1 of the Licence Agreement ("Definitions") is amended with
effect from the date above written as follows:
"Application Product
or Products" shall mean an integrated product comprising the Index
Product linked with one or more Reader Products
developed by CSUK using the Programs in accordance
with Clause 3.1.1 hereof and incorporating the
Runtime Programs.
"CCDP MUSCAT
WebExplorer Code" shall mean the C and Perl code and any Updates
supplied by CCDP to CSUK upon the signing of this
Addendum to assist CSUK to develop the CCDP MUSCAT
WebExplorer Extension.
"CCDP MUSCAT
WebExplorer Extension" shall mean a software program which is a customised
version of the CCDP MUSCAT WebExplorer Code
integrated with CSUK's MediaSphere system providing
the ability to search using free text and fielding
searches across the data set, using HTTP and HTML
protocols.
"CDROM Client Product" shall mean an information storage product which
includes one or more Reader Products and one or more
indexes created by an Application Product, already
purchased by a Customer or produced internally by
CSUK, where the Index Product used to create the
index(es) is not linked via electronic cable,
satellite or other communications means to the Reader
Product on the information storage medium. The CDROM
Client Product definition includes CD-ROM, CD-I and
other mass distribution digital storage products
produced by CSUK or a Customer which include any part
of the Runtime Programs or any binary files created
using any part of the Application Product.
"Customer" shall mean a sub-licensee of one or more Application
Products or CDROM Client Product or CCDP MUSCAT
WebExplorer Extension, in the Territory.
"MediaSphere" An example of an Application Product developed by
CSUK using the Runtime Programs as demonstrated
31
by CSUSA at Xxxxxxx Boston 1994 and publicised and
documented as "MediaSphere" in recent editions of the
national press and trade journals.
"Net Selling Price" shall mean the price at which the Application
Product, CDROM Client Product and CCDP MUSCAT
WebExplorer Extension and each part thereof is
actually invoiced (excluding local sales taxes) by
CSUK to a Customer or Sub-Distributor.
"Product Market" shall mean any and all markets.
"Program or Programs" shall mean CCDP's indexing and text retrieval
software programs known as MUSCAT together with the
CCDP MUSCAT WebExplorer Code, a standard Application
Program Interface which enables the MUSCAT program to
be linked with, and called from, other programs (as
listed in Schedule 1 and Schedule 1A) in machine
readable binary code and all Updates thereof
furnished to CSUK. "Programs" shall include all
Runtime Programs and any Updates to the Programs.
"Runtime Programs" shall mean the Programs or portions of the Programs
or other programs which are derived directly or
indirectly from and which use the technology
incorporated in the Programs that are embedded in the
Application Product, the CDROM Client Product or the
CCDP MUSCAT WebExplorer Extension as a result of
CSUK's operation of the Programs in accordance with
Clause 3.1.1 hereof.
"Sub-Distributor" shall refer to a party which has an agreement with
CSUK to distribute Application Products or CDROM
Client Products or CCDP MUSCAT WebExplorer
Extensions.
"Territory" shall mean worldwide.
"Updates" shall mean error corrections, modifications and
updates that CCDP incorporates officially into its
standard English language version of any of the
Programs or the CCDP MUSCAT WebExplorer Code, as
applicable, together with related documentation if
any.
3. Clause 2.1.2 of the Licence Agreement shall be deleted.
4. Clause 3.1 of the Licence Agreement shall be supplemented as follows:
32
"3.1.5 A licence to operate the Programs and the CCDP MUSCAT
WebExplorer Code in accordance with CCDP's instructional and
operational manuals for the purposes of CSUK's internal use
for development of CDROM Client Product and CCDP MUSCAT
WebExplorer Extension, excluding any right to operate or
develop any product or system that involves the remote
indexing of web servers or that crawls amongst web servers.
3.1.6 A licence to market and sub-license in the Product market and
in the Territory the Runtime Programs as part of and embedded
in the CDROM Client Product.
3.1.7 A licence to market and sub-license in the Product Market and
in the Territory the Runtime Programs as part of and embedded
in the CCDP MUSCAT WebExplorer Extension excluding any right
to market or sub-license the Runtime Programs as part of and
embedded in any product or system that involves the remote
indexing of web servers or that crawls amongst web servers."
5. Clause 3.2 of the Licence Agreement shall be amended so that after
every reference to "Application Products" the words "or CDROM Client
Product or CCDP MUSCAT WebExplorer Extension" shall be added.
6. Clause 3.3 of the Licence Agreement shall be amended as follows:
"The licences granted herein in Clauses 3.1.1, 3.1.2, 3.1.3 and 3.1.4
shall commence on the Acceptance Date and the licences granted herein
in Clauses 3.1.5 and 3.1.6 shall commence on the date of the First
Addendum".
7. A new Clause 4.2.1 shall be added as follows:-
"4.2.1 CSUK shall (unless otherwise requested by CCDP) include and
use the trademark MUSCAT to refer to the MUSCAT search engine
or any part included as a Runtime Program in any Application
Product or CCDP MUSCAT WebExplorer Extension or CDROM Client
Product in all marketing material, publicity material (whether
in paper or electronic form) which is produced by or on behalf
of CSUK and which (i) describes or refers to the Application
Product or CDROM Client Product or CCDP MUSCAT WebExplorer
Extension, or (ii) refers to the MUSCAT search engine
integrated within the Application Product or CDROM Client
Product or CCDP MUSCAT WebExplorer Extension in any way, or
(iii) refers to any other trade xxxx used in connection with
technologies incorporated as part of the Application Product
or CDROM Client Product or CCDP MUSCAT WebExplorer Extension
including, without limitation, Adobe Acrobat and Sybase. Each
reference to the trademark MUSCAT shall be in a form approved
by CCDP from time to time, shall clearly acknowledge that it
is a trademark of CCDP and shall appear with no less
prominence than any references to the other trademarks
described in (iii) above."
33
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
8. Clause 4 of the Licence Agreement (except for Clause 4.4.3) shall be
amended so that after every reference to the "Application Products" the
words "CCDP MUSCAT WebExplorer Extension and the CDROM Client Product"
shall be added.
9. Clause 5 of the Licence Agreement shall be amended as follows:
9.1 Clause 5.3 shall be amended to add the words "(excluding the
CCDP MUSCAT WebExplorer Code) after the words "Program" in the
first line thereof.
9.2 Clause 5.9 shall be amended to add the words "(excluding the
CCDP MUSCAT WebExplorer Code) after the word "Programs" in
line 2 thereof.
10. The wording of Clause 6.3.2 of the Licence Agreement shall be replaced
by the following clauses:-
"6.3.2.1 On any licence of an Application Product or any part
thereof granted by CSUK to a Sub-Distributor or
Customer (except for an Application Product delivered
pursuant to a trial licence unless payment of a
sub-licence fee is required by Clause 4.4.3) CSUK
shall pay to CCDP a licence fee as follows:
6.3.2.1.1 ***** of the Net Selling Price for Local
Area Networks ("LAN")-based applications
with a minimum payment of the amount payable
for LAN based applications in CCDP's latest
published MUSCAT Prices VAR list current at
the time of the Licence, appended hereto as
Appendix 1, as the same may vary from time
to time ("xxx XXXXXX List");
6.3.2.1.2 ***** of any rental payments, lease
payments, licence payments, technology
access fees or any other charge for access
to or the use of the Runtime Programs or any
part which are invoiced by CSUK to a third
party for Wide Area Network ("WAN")-based
applications for remote access by clients
with a minimum payment of the amount payable
for LAN based applications in the then
current MUSCAT List.
6.3.2.1.3 ***** of the Net Selling Price for any other
Application Product or any part not included
in Clauses 6.3.2.1.1 or 6.3.2.1.2 above with
a minimum payment of the amount payable for
such Application Products (or the nearest
equivalent thereto) in the then current
MUSCAT List.
34
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
6.3.2.2 For the avoidance of doubt:-
6.3.2.2.1 A single organisation, company or
group of companies located on more
than one site connected by a WAN
("Organisational WAN") will be
treated as a LAN for the purposes of
calculating the licence fee under
this Clause 6.3.
6.3.2.2.2 Servers for Organisational Wan
applications are to be deemed to be
servers for LAN-based applications
for the purpose of determining the
price in the MUSCAT List.
6.3.2.2.3 Foreign Language Algorithms forming
part of any Application Product will
be priced in accordance with the
MUSCAT List."
11. A new Clause 6.3.3 of the Licence Agreement shall be added as follows:
"6.3.3 CCDP undertakes:
6.3.3.1 not to increase the prices in the MUSCAT
List more than once every quarter;
6.3.3.2 if it shall license the same products
contained in the MUSCAT List as form part of
the Application Products to any other person
for the same type of application or product
as the Application Product and in the same
market sector as that in which CSUK licenses
to Customers, at a price which is less than
the price offered to CSUK then CCDP will
offer such products to CSUK at such lower
price.
6.3.3.3 to give 30 days' written notice to CSUK of
any increase in the prices in the MUSCAT
List."
12. A new Clause 6.3.4 of the Licence Agreement shall be added as follows:
"6.3.4.1 CSUK shall pay to CCDP ***** of all technology access
fees, rental payments, lease payments, royalties or
other licence fees or any other charge for access to
or the use of the Runtime Programs or any part which
are invoiced by CSUK to a third party in respect of
CDROM Client Products with minimum payments of such
technology access fees or licence fees of the amount
payable (or the nearest equivalent thereto) as set
out in CCDP's then current MUSCAT List.
35
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
6.3.4.2 CSUK shall pay to CCDP licence fees for any
Application Products used by CSUK to collate, index
or master the CDROM Client Product as if such
products were LAN-based Applications as defined in
6.3.2.1."
13. A new Clause 6.3.5 of the Licence Agreement shall be added as follows:
"6.3.5.1 For sales of CCDP MUSCAT WebExplorer Extension where
all accesses are made exclusively by employees of a
single Customer which has previously purchased, or is
in the process of purchasing as part of the sale,
MediaSphere then CSUK shall pay to CCDP ***** of the
Net Selling Price of the CCDP MUSCAT WebExplorer
Extension to MediaSphere with a minimum payment of
the amount payable for the WebExplorer Extension
(Integrators) OEM product in the then current MUSCAT
List.
6.3.5.2 For all access to the CCDP MUSCAT WebExplorer
Extension by any third party except that defined in
6.3.5.1 CSUK shall pay to CCDP ***** of any licence
fees, royalty, access, rental and lease fees which
are invoiced by CSUK for CCDP MUSCAT WebExplorer
Extension with a minimum payment of the amount
payable for the CCDP MUSCAT WebExplorer Extension
(Integrators) OEM product in the then current MUSCAT
List."
14. Clause 6.4 of the Licence Agreement is amended as follows:
"6.4 CSUK shall within 30 days after each Quarter Day during the
continuance of this Agreement and after the end of each
Quarter Day falling within one year after its termination send
to CCDP a statement showing the aggregate Net Selling Price,
rental payments, lease payments, licence payments, royalties,
technology access fees or any other charge for access or for
the use of the Runtime Programs or any part which are invoiced
by CSUK to a third party or CCDP MUSCAT WebExplorer Extension
or any part or the CDROM Client Product or any part, in the
Territory by CSUK during that quarter and the licence fee due
thereon to which CCDP is entitled pursuant to Clause 6.3 and
at the same time send to CCDP remittance in pounds sterling,
converted at the closing mid point on the normal Quarter Day
as published in the Financial Times".
15. A new Clause 6.4.1 of the Licence Agreement shall be added as follows:-
"6.4.1 The statement referred to in Clause 6.4 above is a completed
written statement taking substantially the form of that shown
in Schedule 4 of this Agreement".
36
16. Clause 11.1 of the Licence Agreement is amended as follows:-
"11.1 This Agreement shall be effective from the 18th March 1994 and
shall remain in effect for an initial ten year period
thereafter unless earlier terminated as provided herein."
17. Clauses 6.5, 6.8, 6.9, 7.6, 11.4, 11.6 and 19.2 shall be amended so
that after the reference to the "Application Product" the words "the
CCDP MUSCAT WebExplorer Extension and the CDROM Client Product" shall
be added.
18. Clause 7.1 shall be amended so that after every reference to the
"Programs" the words (CCDP MUSCAT WebExplorer Code)" shall be added.
19. Schedule 1A attached to this Addendum shall be added to Schedule 1 of
the Licence Agreement.
20. Schedule 3 attached to this Addendum shall replace Schedule 3 in the
Licence Agreement.
21. All other terms of the Agreement remain unaffected by this First
Addendum and shall remain in full force and effect.
37
AS WITNESS whereof this document has been executed and delivered as a Deed the
date first above written by their respective duly authorised signatories
CCDP:
/s/ Xxxxxx Xxxxxx
--------------------------------------
SIGNED as a deed by Xx. Xxxxxx Xxxxxx,
director for and on behalf of
MUSCAT LIMITED
/s/ Xxxx Xxxxxx
------------------------------------
SIGNED as a deed by Mr. Xxxx Xxxxxx,
director for and on behalf of
MUSCAT LIMITED
CSUSA:
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Executed as a deed under seal by XXXXXX XXXXXX,
a director for and on behalf of
CASCADE SYSTEMS INCORPORATED
CSUK:
/s/ Xxxxxx Xxxxxx
---------------------------------
SIGNED as a deed by XXXXXX XXXXXX
a director for and on behalf of
CASCADE SYSTEMS LIMITED
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
SIGNED as a deed by XXXXXX XXXXXXXXX
a director for and on behalf of
CASCADE SYSTEMS LIMITED
38
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
SCHEDULE 1A
The following files contain all the source code to the MUSCAT WEBEXPLORER
(version 2) product using the Local Site indexer (version 4)
*************************************
*************************************
*************************************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********* *******
********* *******
********* *******
********* *******
********* *******
********* *******
********* *******
********
*******
*****
This source code does not permit indexing of remote web-sites. The supply of
this source code to CSUK is purely to facilitate Web access to data already
stored or indexed by the Mediasphere Application Product on a local server. A
licence for CSUK to use this source code in any other way is not permitted.
This source code is supplied to CSUK on one 3.5" floppy disc at the time of
signature of the FIRST ADDENDUM on 2nd February 1996.
39
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
Appendix 1 2 February 1996
MUSCAT OEM PRICE LIST
API TECHNOLOGY
----------------------------------------------------------------------------------------------------------------------
MUSCAT OEM PRICE LIST
----------------------------------------------------------------------------------------------------------------------
API TECHNOLOGY RPL OEM
----------------------------------------------------------------------------------------------------------------------
P STERLING P STERLING
----------------------------------------------------------------------------------------------------------------------
I) CORE TECHNOLOGY
----------------------------------------------------------------------------------------------------------------------
MULTI-PLATFORM API DEVELOPMENT KIT (OEMS)
----------------------------------------------------------------------------------------------------------------------
licence for any platform (ref: market sector & territory) *****
----------------------------------------------------------------------------------------------------------------------
C source code for interpreter
----------------------------------------------------------------------------------------------------------------------
on-board BCPL compiler
----------------------------------------------------------------------------------------------------------------------
full documentation and on-line help
----------------------------------------------------------------------------------------------------------------------
telephone support
----------------------------------------------------------------------------------------------------------------------
re-distribution of Runtime Programs in bespoke applications
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
II) SERVERS
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
BESPOKE "NATIVE" SERVERS
----------------------------------------------------------------------------------------------------------------------
SUN & other UNIX ***** *****
----------------------------------------------------------------------------------------------------------------------
VMS & mainframes ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
MACHINE-CODE INTERPRETER SERVERS
----------------------------------------------------------------------------------------------------------------------
SUN, OS/2, Windows 32, Dos 32 ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
C INTERPRETER SERVERs
----------------------------------------------------------------------------------------------------------------------
Windows 00, XXX 00, XXX, XXXX, XX/0, Mac ***** *****
----------------------------------------------------------------------------------------------------------------------
40
----------------------------------------------------------------------------------------------------------------------
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
----------------------------------------------------------------------------------------------------------------------
III) CLIENTS
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOCAL AREA NETWORK (LAN) PER SINGLE SERVER INSTALLED
----------------------------------------------------------------------------------------------------------------------
SUN, Windows NT, Windows 32 & 16
----------------------------------------------------------------------------------------------------------------------
DOS 32 & 16, OS/2 & other UNIX
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
1-4 ***** *****
----------------------------------------------------------------------------------------------------------------------
5-10 ***** *****
----------------------------------------------------------------------------------------------------------------------
11-25 ***** *****
----------------------------------------------------------------------------------------------------------------------
16-50 ***** *****
----------------------------------------------------------------------------------------------------------------------
51-100 ***** *****
----------------------------------------------------------------------------------------------------------------------
>100 ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
IV) REMOTE CLIENTS
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
CD-ROM RUNTIME
----------------------------------------------------------------------------------------------------------------------
i. Royalty on net selling price ***** *****
*****
----------------------------------------------------------------------------------------------------------------------
ii. Technology fee for each CD-ROM title (ISBN no.) ***** *****
----------------------------------------------------------------------------------------------------------------------
iii. Minimum runtime fee ***** *****
----------------------------------------------------------------------------------------------------------------------
(ii + (i or ii, whichever >))
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
WIDE AREA NETWORK (WAN)
----------------------------------------------------------------------------------------------------------------------
i. Equivalent fee per id user (over 20 months) *****
----------------------------------------------------------------------------------------------------------------------
ii. Technology fee for each WAN service ***** *****
----------------------------------------------------------------------------------------------------------------------
(i or ii, whichever >)
----------------------------------------------------------------------------------------------------------------------
41
----------------------------------------------------------------------------------------------------------------------
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
----------------------------------------------------------------------------------------------------------------------
ADDITIONAL API COMPONENTS
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
WEBEXPLORER EXTENSION (INTEGRATORSOEM)
----------------------------------------------------------------------------------------------------------------------
"Explorers" server code, with source CGI ***** *****
----------------------------------------------------------------------------------------------------------------------
Additional to UNIX Server Cost
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LANGUAGE ALGORITHMS
----------------------------------------------------------------------------------------------------------------------
French on a single server ***** *****
----------------------------------------------------------------------------------------------------------------------
Italian on a single server ***** *****
----------------------------------------------------------------------------------------------------------------------
Russian C on a single server ***** *****
----------------------------------------------------------------------------------------------------------------------
Spanish on a single server ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
MAINTENANCE
----------------------------------------------------------------------------------------------------------------------
20% of software cost per annum
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
CONSULTANCY
----------------------------------------------------------------------------------------------------------------------
Daily rate ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
OTHER MUSCAT PRODUCTS ***** *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
INDEX-ME ***** *****
----------------------------------------------------------------------------------------------------------------------
quarterly
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
WEBEXPLORER LITE ***** *****
----------------------------------------------------------------------------------------------------------------------
free-text, single index on local server
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
42
----------------------------------------------------------------------------------------------------------------------
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
----------------------------------------------------------------------------------------------------------------------
WEBEXPLORER ***** *****
----------------------------------------------------------------------------------------------------------------------
free-text and Boolean, multiple indexes on single server
----------------------------------------------------------------------------------------------------------------------
plus consultancy (indexing scripts & Boolean filters)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
WEBRETRIEVER ***** *****
----------------------------------------------------------------------------------------------------------------------
single index of multiple remotes webservers
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
WEBCRAWLER
----------------------------------------------------------------------------------------------------------------------
multi-processing, multi-site web indexing *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOTUS EXPLORER
----------------------------------------------------------------------------------------------------------------------
Server and Client software ***** *****
----------------------------------------------------------------------------------------------------------------------
Unlimited client use
----------------------------------------------------------------------------------------------------------------------
43
SCHEDULE 3
Location of Demonstration Sites
In the United Kingdom
1) Headquarters Office: 00 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
XX00 0XX
2) Main Marketing Office: South Quay Plaza II, 000 Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxx X00 0XX
In the United States of America
1) Headquarters Office: 0 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, XXX
2) Main Marketing Office: (to be notified)
or such other substituted addresses (but not more than two in each country at
any one time) as CSUK shall notify to CCDP in writing from time to time.
44
SCHEDULE 4
QUARTERLY REPORTING SHEET
QUARTERLY REPORTING FORM - INSTALLATION SUBSTANTIALLY COMPLETE
Customer Name
Location
No. of Index Products
No. of Clients
No. of Reader Products
Price Quoted/Invoiced
Revenue Recognised
Royalty to CCDP
Any other comments
QUARTERLY REPORTING FORM - SYSTEMS SOLD BUT NOT INSTALLED OR FOR EVALUATION ONLY
Customer Name
Location
Date of Order
Planned Installation Date
No. of Clients quoted
No. of Reader Products quoted
Price Quoted/Invoiced
Royalty to CCDP
Revenue Recognised
Any other comments
45
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
Company No. 2345573
The Registrar of Companies for England and Wales hereby certifies that
CAMBRIDGE CD PUBLISHING LIMITED
having by special resolution changed its name, is now incorporated under the
name of
MUSCAT LIMITED
Given at Companies House, Cardiff, the 6th December 1995
/s/ X. Xxxxx
XXX. X. XXXXX
For the Registrar of Companies
46
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
Company No. 2345573
The Registrar of Companies for England and Wales hereby certifies that
FOOTPRINTS INTERNATIONAL LIMITED
having by special resolution changed its name, is now incorporated under the
name of
CAMBRIDGE CD PUBLISHING LIMITED
Given at Companies House, Cardiff, the 6th December 1995
/s/ X. Xxxxx
X. XXXXX
For the Registrar of Companies
47
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
SCHEDULE 2
BENCHMARK TESTS FOR MUSCAT
The Benchmark tests to be run for acceptance of Muscat by Cascade Systems Ltd
are defined as the following:
1. The tests will be run on the following combinations of hardware and
operating systems.
SPARC Station LX with SunOS 4.1.3
486 PC 33 MHz with 32 bit OS (OS/2 or Windows 32)
2. The first test will consist of ****************************************
************************************ and ********************.
3. The second test will consist of ***************************************
which contains a *****************************************************.
This second acceptance test should be *******************************
**********************************.
4. The criterion for acceptance is the following: ************************
*********************************************************.
48
SCHEDULE 3
Location of Demonstration Sites
In the United Kingdom
1) Headquarters Office: Xx Xxxxx Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx
XX0 0XX
2) Main Marketing Office: Little Hyde Farm, Little Hyde Lane,
Ingatestone, CM4 ODU
In the United States of America
1) Headquarters Office: 0, Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000,
XXX.
2) Main Marketing Office: [to be notified]
or such other substituted addresses (but not more than two in each country at
any one time) as CSUK shall notify to CCDP in writing from time to time.
49
ANNEX I
COPYRIGHT DECLARATION
I, Xx. Xxxxxx Xxxxxx, hereby declare for the purposes of the Licence and
Distribution Agreement between CCDP and CSUK dated 18th March 1994 that to the
best of my knowledge and belief, I own the copyright in the Programs and I have
licensed such copyright to CCDP to the extent necessary to allow CCDP to carry
out the terms of such agreement and I warrant that Clause 7.1.2 is correct. I
make no other declaration whatsoever in connection with the terms of such
agreement.
/s/ Xxxxxx Xxxxxx
-----------------------------
XX. XXXXXX XXXXXX
Dated 18th day of March 1994.
