AGREEMENT
Company: TecnoChannel Sdn. Bhd
Agreement No. NCORE/TECNOCHANNEL/1999/01
This Agreement is effective as of June 28, 1999 (Effective Date) by and between
Ncore Technology, an Indian corporation, with offices at Xxx Complex, 4th
Floor, 44&45 Xxxxxxxxx (Xxxxx) Xxxx, Xxxxxxxxx 000000, Xxxxx, (hereinafter
called '"Ncore"), and TecnoChannel Sdn Bhd (Company No. 426318-M) of Block G,
units G605/606, Phileo Demansara 1, No. 9, Jin 16/11, Off Xxxxx Xxxxxxxxx,
00000 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, a Malaysian corporation, (hereinafter
called "TecnoChannel").
RECITALS:
WHEREAS, Ncore is engaged in the business of designing, developing and
producing quality software and hardware systems for themselves as well as for
others and rendering consultancy services and promoting hardware and software
exports; and
WHEREAS, TecnoChannel is engaged in the business of designing, developing and
producing quality software and hardware systems for themselves as well as for
others; and
WHEREAS, Ncore is able to procure the services of employees and/or other
contacts within India; and
WHEREAS, TecnoChannel desires to obtain engineering and programming services
from Ncore to develop software for use in or with TecnoChannel products and
Ncore has agreed to provide such services; and
WHEREAS, TecnoChannel desires, and Ncore has agreed, that all software and
documentation developed pursuant to this agreement shall be owned solely and
exclusively by TecnoChannel.
Now, therefore, in consideration of the mutual promises and covenants set forth
herein, the sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. SCOPE OF SERVICES
During the term of this Agreement, Ncore shall furnish the services
set forth in the Schedule, attached hereto and made a part hereof.
Such services shall be performed by individuals as employees of Ncore,
an independent contractor, and not as employees of TecnoChannel.
2. MILESTONES
Ncore will use all reasonable endeavours to achieve completion of each
milestone set out in the Schedule by the relevant milestone. If Ncore
cannot meet the delivery deadline for
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the final delivery (Milestone 3), TecnoChannel shall have the right to
claim delay penalties if the delay is in excess of two weeks of the
scheduled delivery of Milestone 3. The penalty amount shall be equal
to [***] of the total amount of the contract, per week of delay beyond
two weeks, or any part thereof, with a maximum limit of [***] of the
total amount.
3. ACCEPTANCE TESTS
3.1 TecnoChannel shall conduct an acceptance test, as outlined in
the Schedule, at the end of the 20th week from the effective
date of this agreement. If TecnoChannel is dissatisfied with
the performance of the software developed by Ncore,
TecnoChannel shall notify Ncore and elect at its option to:
(a) require Ncore to take all necessary steps and
actions to enable the software to function to the
satisfaction of TecnoChannel at no additional charge
or costs within 28 days of the aforementioned notice
or;
(b) to accept such software or part with an abatement of
the contract price.
3.2 Failing the software passing the acceptance test of
TecnoChannel or written agreement as to abatement,
TecnoChannel may reject the entire software as not being in
conformity with this Agreement in which case TecnoChannel may
terminate this Agreement.
4. WARRANTY
Ncore warrants and undertakes for a period of 12 months from the date
of acceptance of the software that:
(a) The software will run on the hardware, the
specifications of which have been set out in the
Schedule;
(c) The design of the software will be suitable to
fulfil the specifications as set out in the Schedule
and the software will perform and function in
accordance with the specifications;
(c) The software will be free from defects in
workmanship.
In the event that the warranties set out above are not conformed with,
Ncore shall be responsible, without charge to TecnoChannel, for
rectifying any defect of the software to the satisfaction of
TecnoChannel. For the purposes of this clause, a defect means any
non-conformance with the warranties set out above.
5. TERM OF AGREEMENT
This Agreement shall commence on June 21, 1999 and terminate on June
20, 2000. This Agreement may be extended by mutual agreement of the
parties provided in writing.
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6. BILLING AND PAYMENT
6.1 As compensation for services to be performed by Ncore
hereunder, TecnoChannel shall pay Ncore at the rates set
forth in the Schedule and to the extent, if any, expressly
provided for in the Schedule, reimbursements for certain
costs, such as travel expenses incurred in the performance of
services hereunder. TecnoChannel shall not have any liability
for any other expenses or costs incurred by Ncore hereunder,
unless otherwise provided in the Schedule.
6.2 Ncore shall xxxx TecnoChannel as specified in the Schedule.
Invoices shall be faxed to TecnoChannel Sdn Bhd (Company No.
426318-M) of Incubator Xxx X0, Xxxxxxxxxx Xxxx Xxxxxxxx,
Lebuhraya Puchong-Sg Xxxx, Xxxxx Xxxxx, 00000 Xxxxx Xxxxxx,
Malaysia, Attention: Accounts Payable. TecnoChannel shall
make the payment, by wire transfer to Ncore's bank as
indicated in the Schedule, within seven days of receipt of
the invoice by fax.
6.3 Upon TecnoChannel's acceptance of the software and
documentation identified in the Schedule, Ncore shall return
to TecnoChannel all copies of TecnoChannel Specifications
provided to Ncore and remaining in its possession.
7. PUBLICITY
Ncore shall not, without the prior written consent of TecnoChannel, in
any manner advertise or publish the fact that TecnoChannel has entered
into this Agreement with Ncore.
8. TERMINATION
8.1 TecnoChannel shall have the right to terminate this Agreement
or any part thereof at any time without cause. In case of
termination by TecnoChannel of all or any part of this
Agreement without cause, any termination claim must be
submitted to TecnoChannel within sixty (60) days after the
effective date of termination. The provision of this clause
shall not limit or affect the right of TecnoChannel to
terminate this Agreement pursuant to clause 8.2.
8.2 This Agreement may be terminated by either party: (i) for
breach of the provisions hereof; or (ii) in the event that an
assignment is made of either party's business for the benefit
of creditors, or if a receiver or trustee in bankruptcy is
appointed to take charge of all or part of either party's
property.
8.3 In the event of termination, either with or without cause,
Ncore shall immediately transfer to TecnoChannel all
software, including all complete and partial copies thereof,
documentation or other technical information developed
pursuant to or in association with this Agreement. Each party
shall also return to the other any confidential information
of the other party in the receiving party's possession;
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provided, however, the party may retain one copy of such
confidential information for archival purposes only.
9. CHANGES
TecnoChannel, within the general scope of this Agreement, may at any
time, by written notice to Ncore, require additional services to be
covered by this Agreement. Ncore may require a reasonable amount of
time to provide these additional services.
10. NOTICES
All notices or correspondence pertaining to this Agreement shall be
addressed as follows:
to TecnoChannel:
TecnoChannel Sdn Bhd
(Company No. 426318-M) of
Block G, units G605/606
Phileo Demansara 1
No. 9, Jin 16/11
Off Xxxxx Xxxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxxx
Attn.: Mr. Xxxxx Xxxx
to Ncore:
Ncore Technology Pvt Ltd.
Xxx Xxxxxxx, 0xx Xxxxx
00&00 Xxxxxxxxx (Xxxxx) Xxxx
Xxxxxxxxx - 000000
Xxxxx
Attn.: Xx. Xxxxx Xxxxxxxxx
11. GOVERNING LAWS
This Agreement shall be construed and the rights of the parties
hereunder governed by the laws of India applicable to agreements made
and to be performed in that country.
12. INDEMNITY AND LIABILITY
Ncore hereby indemnifies and holds TecnoChannel, its directors,
officers, agents and employees, harmless against any and all claims,
actions or demands against TecnoChannel, its directors, officers,
agents and employees and against any and all damages, liabilities or
expenses, including counsel fees, for injury to or death of any person
and for loss of or damage to any and all property, arising out of the
acts or omissions of Ncore under this Agreement.
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NEITHER PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER, ITS
CUSTOMERS, OR TO ANY OTHER PERSON OR COMPANY FOR LOST PROFITS OR ANY
INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING
THEREFROM, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF
WARRANTY, BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT TORT LIABILITY
OR OTHERWISE, EXCEPT WITH RESPECT TO DAMAGES FOR WRONGFUL DISCLOSURE
OR MISUSE OF INTELLECTUAL PROPERTY. NO ACTION OR PROCEEDING AGAINST
TECNOCHANNEL MAY BE COMMENCED MORE THAN TWENTY FOUR (24) MONTHS AFTER
THE DATE OF ACCRUAL OF THE CAUSE OF ACTION OR THE TERMINATION OF THIS
AGREEMENT, WHICHEVER IS EARLIER, THIS CLAUSE SHALL SURVIVE FAILURE OF
AN EXCLUSIVE REMEDY,
13. STANDARDS
All services hereunder shall be performed by employees of Ncore who
are experienced and highly skilled in their profession and in
accordance with the highest standards of workmanship in their
professions.
Ncore's total liability under this section for any reason, regardless
of the form of action, however arising, will not exceed the amount
paid by TecnoChannel to Ncore for non-conforming service.
14. INTELLECTUAL PROPERTY RIGHTS
All software, documentation, information and data, regardless of form,
generated in the performance of or delivered under this Agreement, as
well as any information provided to Ncore by TecnoChannel, shall be
and remain the sole property of TecnoChannel. Ncore shall keep all
such software, documentation, information and data in confidence and
not disclose or use it for any purpose other than in performing this
Agreement, except with TecnoChannel's prior written approval.
In the event that the copyright or other intellectual property
right(s) other than patents in any software, documentation, data or
other information generated in the performance of this Agreement does
not vest in TecnoChannel by law, Ncore hereby assigns to TecnoChannel
all right, title and interest worldwide, in and to any copyright or
other intellectual property right(s), other than patents, which Ncore
may have in such software, documentation, data or other information.
Ncore hereby assigns to TecnoChannel the entire right, title, and
interest, worldwide, in any invention or patent thereunder conceived
or first actually reduced to practice in performing this Agreement.
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In connection with actual inventions or patents conceived or first
actually reduced to practice in connection with this Agreement, Ncore
will furnish TecnoChannel with information sufficient to file and
prosecute patent applications, and will execute all documents incident
to such filing and prosecution and, in connection with the license
granted under this Agreement, Ncore will furnish information
sufficient to enable TecnoChannel to avail itself of such license.
These obligations shall survive the termination of this Agreement.
15. CONFIDENTIALITY
15.1 Notwithstanding that this Agreement shall have terminated or
expired, Ncore agrees that it will keep in confidence and
prevent the disclosure to any person or persons outside
Ncore, or to any unauthorized person or persons, any and all
data or information generated, specified for delivery or
delivered hereunder. Ncore also agrees to keep in confidence
all other TecnoChannel data that is designated in writing, or
by an appropriate stamp or legend, to be of a proprietary
nature. TecnoChannel shall reduce to writing any oral
disclosure of proprietary or confidential data within thirty
(30) days of such disclosure, and shall identify the
proprietary or confidential data in writing, or by an
appropriate stamp or legend, to be of a proprietary or
confidential nature, and such data shall be treated in
confidence hereunder.
15.2 Notwithstanding the foregoing paragraph, the above
confidentiality restrictions shall not be applicable to any
such data if such used or disclosed data:
a. Is or becomes available to the public without breach
of this Agreement; or
b. Is known to Ncore at the time of disclosure; or
c. Is used or disclosed with the prior, written
approval of TecnoChannel; or
d. Is independently developed by Ncore without access
to or use of any confidential information of
TecnoChannel
15.3 Ncore shall not be liable for inadvertent, accidental, or
mistaken use or disclosure of data obtained under this
Agreement despite the exercise of the same reasonable
precaution as it takes to safeguard its own proprietary
information.
15. DISPUTE RESOLUTION
If any claim or controversy arises out of, or relates to, this
Agreement, the parties shall make a good faith attempt to resolve the
matter through their management. The managers having cognizance of the
subject matter of the Agreement for the party shall first meet and
make a good faith attempt to resolve such controversy or claim. In the
event that the parties are unable to resolve such a dispute, the
matter shall be referred to arbitration. Such arbitration shall be
conducted by a panel of three arbitrators, one selected by each party
and a neutral arbitrator selected by the party arbitrators, if the
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arbitration panel shall conduct its proceedings as expeditiously as
possible, and no prehearing discovery shall be held except as ordered
by the arbitration panel, which shall limit discovery except as it
determines to be essential to a just result and not unduly burdensome.
The arbitral panel shall not be empowered to award exemplary or
punitive damages. The arbitration shall take place at a mutually
agreed upon location, or, if the parties are unable to agree on such a
location, or if none, then within thirty miles of Bangalore, India.
The arbitral panel shall not have the right decide issues of
arbitrability. Notwithstanding this dispute resolution procedure,
either party shall have the right to seek an injunction in a court of
appropriate jurisdiction, in the event that it believes that its
intellectual property rights are at risk.
17. NOTICE TO TECNOCHANNEL OF LABOR DISPUTES
Whenever Ncore has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of
this Agreement, Ncore shall immediately give notice thereof, including
all relevant information with respect thereto, to TecnoChannel.
18. BOOKS AND RECORDS
In circumstances under this Agreement where Ncore is entitled to
reimbursement of costs incurred in connection with this Agreement,
Ncore's records of the insurance of such costs shall be subject to
inspection by TecnoChannel or its representatives.
19. RELATIONSHIP OF PARTIES
It is agreed that this Agreement does not constitute a partnership,
joint venture or agency between the parties thereto, nor shall either
of the parties hold itself out as such, contrary to the terms hereof,
by advertising or otherwise, nor shall either of the parties be bound
or become liable because of any representation, action or omission of
the other.
20. ENTIRE AGREEMENT
This Agreement (together with the Schedule attached hereto)
constitutes the entire Agreement and supersedes all prior
negotiations, representations, agreements and understanding, oral or
written, between the parties hereto with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Ncore Technology Pvt. Ltd. Tecnochannel Sdn Bhd
BY: /s/ illegible BY: /s/ illegible
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TYPED NAME: Xxxxx X. Xxxxxxxxx TYPED NAME: X.X. Xxxx
TITLE: Chairman & CEO TITLE: CEO
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SCHEDULE
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Portions of this page have been omitted pursuant to a request for Confidential
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