SOFTWARE LICENCE AGREEMENT
EXHIBIT
4.12
|
DATED
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6th
October, 2006
|
(1)
ELECTRONIC DATA SYSTEMS LIMITED
and
(2)
CODESTREAM SOFTWARE LIMITED
TABLE
OF CONTENTS
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SECTION
A: TERM, DEFINITIONS AND INTERPRETATION
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1
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1.
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TERM.
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1
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2.
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Definitions
and interpretation.
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1
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2.1
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Definitions
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1
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2.2
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Interpretation
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2
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SECTION
B: Provision of Licensed Software AND
SERVICES
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3
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3.
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Delivery
of the Licensed Software.
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3
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4.
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Grant
and Conditions of Licence.
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3
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5.
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Licensed
Software Support and Maintenance Services.
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3
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6.
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Transfer
of Licensed Software.
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4
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7.
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Proprietary
Markings.
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4
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8.
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Duplication
of Documentation.
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5
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9.
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Protection
of Licensed Software.
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5
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| SECTION C: Warranties, Indemnities, and Liabilities |
5
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10.
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Warranty.
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5
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11.
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INTELLECTUAL
PROPERTY Rights Indemnification.
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6
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12.
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Limitation
of Liability.
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6
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13.
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Survival
of TERMS.
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7
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SECTION
D: CHARGES AND Payment
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7
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14.
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Charges,
Prices, and Fees.
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7
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15.
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PAYMENT.
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7
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SECTION
E: Termination
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8
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16.
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Termination
for Cause.
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8
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17.
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Termination
for Insolvency.
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8
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18.
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Termination
of Software Licence.
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8
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19.
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Rights
Upon Termination.
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8
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20.
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Survival
of Terms.
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8
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SECTION
F: Miscellaneous
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9
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21.
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Binding
Nature, Assignment, and Subcontracting.
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9
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22.
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Confidentiality.
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9
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23.
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PUBLICITY.
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9
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24.
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Notices.
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10
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25.
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Force
Majeure.
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10
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26.
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Severability.
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10
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27.
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Waiver.
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10
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28.
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RELATIONSHIP
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10
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29.
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Governing
Law.
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10
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30.
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COMPLIANCE
WITH LAWS.
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11
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31
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Escrow
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11
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32.
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Entire
Agreement.
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12
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LIST
OF SCHEDULES
SCHEDULE
1
Charges,
Prices and Fees
SCHEDULE
2
Service
Levels
THIS
SOFTWARE LICENCE AGREEMENT
(the
“Agreement”), is made on TBC 2006 (the “Effective Date”)
BETWEEN:
|
(1)
|
ELECTRONIC
DATA SYSTEMS LIMITED,
whose registered office is at 0 Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx,
Xxxxxxxxx XX00 0XX (“EDS”);
and
|
|
(2)
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Codestream
Software Limited,
whose registered office is at 5th Floor, Exchange House, 000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxx XX0 0XX, the (“Supplier”).
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RECITALS:
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(A)
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EDS
desires to have the right to Licence certain computer software programs
and certain support and maintenance services from Supplier;
and
|
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(B)
|
Supplier
is willing to provide computer software programs and services to
EDS in
accordance with the terms and conditions set forth in this
Agreement.
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THE
PARTIES AGREE
as
follows:
SECTION
A: TERM, DEFINITIONS AND INTERPRETATION
| 1. |
TERM.
|
|
The
parties agree that the terms and conditions of this Agreement apply
to the
provision of computer software programs and services to EDS by Supplier
and Supplier agrees that software and services which Supplier generally
makes available to other customers shall be made available to EDS
under
the terms and conditions of this Agreement. Unless terminated earlier
in
accordance with the provisions of this Agreement, the initial term
of this
Agreement shall be six (6) years commencing on the Effective Date.
This
Agreement shall automatically renew for successive one (1) year renewal
terms thereafter unless either party provides the other party with
written
notice of its intent not to renew not less than ninety (90) days
prior to
the expiration of the initial or any renewal
term.
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| 2. |
DEFINITIONS
AND INTERPRETATION.
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| 2.1 |
Definitions
|
The
following definitions apply to this Agreement:
“Affiliate”
means
any corporation or other entity which controls, is controlled by or is under
common control with EDS, and any joint venture or partnership in which EDS
is a
partner or joint venture, or any equity in which EDS has an interest and to
which it supplies or receives information processing services. A corporation
or
other entity shall be deemed to control another corporation or other entity
if
it owns directly or indirectly, more than twenty-five per cent (25%) of the
voting shares or other interests, or has the power to elect more than half
the
directors, of such other corporation.
“Applicable
Specifications”
means
the functional, performance, operational, compatibility, and other
specifications or characteristics of the Licensed Software described in
applicable Documentation and such other specifications or characteristics of
the
Licensed Software agreed upon in writing by the partieswhich includes the
“On-Time Solution, Operational Data Store High Level Technical Architecture
Design” document, version 1.3 dated 14 August 2006.
-1
“Documentation”
means
user guides, operating manuals, education materials, product descriptions and
specifications, technical manuals, supporting materials, and other information
relating to the Licensed Software or used in conjunction with the Services,
whether distributed in print, magnetic, electronic, or video format, in effect
as of the date the Licensed Software is shipped, or as amended from time to
time
.
|
“Intellectual
Property Rights”
means patents, trade marks, service marks, rights in semi-conductor
chip
topographies, design rights (whether registrable or otherwise),
applications for any of the foregoing, copyright, know-how, trade
or
business names, goodwill associated with the foregoing and other
similar
rights or obligations whether registrable or not in any country (including
but not limited to the United
Kingdom).
|
“Licensed
Software”
means
computer programs identified in Schedule 1, attached hereto, that are provided
or to be provided by Supplier pursuant to this Agreement. The definition of
Licensed Software also includes any enhancements, translations, modifications,
updates, releases, or other changes to Licensed Software which are provided
or
to be provided as part of Supplier’s performance of warranty Service obligations
or pre-paid support and maintenance Services pursuant to this
Agreement.
|
“Purchase
Order”
means the written order submitted by EDS to Supplier which identifies
the
Licensed Software and Services EDS desires to obtain from
Supplier.
|
“Service
Levels”
means
the level of Licensed Software Services set forth in Schedule 2.
|
“Services”
means the support, maintenance and warranty services, provided or
to be
provided by Supplier pursuant to this Agreement.
|
“Use”
means use, load, transmit, store, display, execute, operate, modify, enhance,
copy (for all such purposes hereby permitted) and merge with other software
and
otherwise translate the software to achieve interoperability (with the right
to
sub-license all such rights of use to a sub-contractor or agent).
| 2.2 |
Interpretation
|
As
used
in this Agreement:
| 2.2.1 |
The
masculine includes the feminine and the
neuter;
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| 2.2.2 |
the
singular includes the plural and vice
versa;
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| 2.2.3 |
A
reference to any statute, enactment, order, regulation or other similar
instrument shall be construed as a reference to the statute, enactment,
order, regulation or instrument as amended by any subsequent statute,
enactment, order, regulation or instrument or as contained in any
subsequent re-enactment or consolidation
thereof.
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| 2.2.4 |
Headings
are included in this Agreement for ease of reference only and shall
not
affect the interpretation or construction of this
Agreement;
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| 2.2.5 |
References
to Clauses, Schedules and Appendices are, unless otherwise provided,
references to clauses, schedules and appendices to this
Agreement.
|
-2
SECTION
B: PROVISION
OF LICENSED SOFTWARE AND SERVICES
| 3. |
DELIVERY
OF THE LICENSED
SOFTWARE.
|
Upon
issuance of one (1) or more Purchase Order(s), Supplier shall deliver the
Licensed Software to EDS on the delivery date set forth in the applicable
Purchase Order or as otherwise agreed upon by the parties. Costs for
transportation of Licensed Software shall be paid by Supplier. All risk of
loss
of, or damage to, the Licensed Software shall be borne by Supplier until receipt
of delivery of such Licensed Software by EDS. EDS may cancel without charge
all
or any portion of the Licensed Software or Services at any time prior to
delivery.
| 4. |
GRANT
AND CONDITIONS OF LICENCE.
|
| 4.1 |
For
each item of Licensed Software received by EDS, Supplier grants EDS
a
non-exclusive, irrevocable, perpetual object code licence to Use
the
Licensed Software (“Licence”), on behalf of EDS and a named customer of
EDS in accordance with the terms and conditions of this Agreement
save
that the Licence may be revocable by Supplier in accordance with
the
provisions of Section E of this Agreement.
|
| 4.2 |
EDS
shall be entitled to copy the Licensed Software as necessary for
archival,
maintenance, disaster recovery testing, or back-up purposes. If EDS
desires to run parallel operations in the process of conducting a
disaster
recovery test or transferring operations from one system to another
system, EDS may operate the Licensed Software on two systems for
the
period of time reasonably necessary to complete the disaster recovery
test
or transfer.
|
| 4.3 |
EDS
shall be entitled to engage a third party to Use the Licensed Software
only with the consent of the Supplier, such consent not to be unreasonably
withheld, subject to and in accordance with this Agreement on behalf
of
EDS provided that such third party are bound by obligations of
confidentiality.
|
| 5. |
LICENSED
SOFTWARE SUPPORT AND MAINTENANCE
SERVICES.
|
| 5.1 |
The
support and maintenance Services set forth in this clause 5 for the
Licensed Software shall be provided by Supplier to EDS during the
Warranty
Period (as later defined) at no charge to EDS. Thereafter, such Services
shall be provided by Supplier, upon receipt of a purchase order from
EDS
at the applicable Charges set forth in Schedule 1. EDS may discontinue
such Services at any time by providing ninety (90) days advance written
notice to Supplier. EDS shall promptly receive a prorated refund
of
pre-paid Charges for support and maintenance
Services.
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| 5.2 |
Supplier
shall promptly notify EDS of any defects, errors or malfunctions
(“Defects”) in the Licensed Software or Documentation and shall promptly
provide to EDS modified versions of Licensed Software or Documentation
which incorporate corrections of any Defects (“Corrections”). Supplier
shall also provide to EDS all operational and support assistance
necessary
to cause Licensed Software to perform in accordance with its
Applicable
Specifications and remedial support designed to provide a by-pass
or
temporary fix to a Defect until the Defect can be permanently
corrected.
|
| 5.3 |
Supplier
shall meet the Service Levels for the performance of support and
maintenance Services. Where no service levels are set forth or attached
to
this Agreement as Schedule 2, Supplier shall use its best efforts
to
respond to requests from EDS for Licensed Software support in a manner
and
time frame which are reasonably responsive considering the nature
and
severity of the Defect which gave rise to such
request.
|
-3
| 5.4 |
Supplier
shall provide to EDS all upgrades, modifications, improvements,
enhancements, extensions, updates, and other changes to Licensed
Software
developed by Supplier (“Improvements”) which are generally made available
to other customers of the Supplier that receive the Supplier’s Gold
support and maintenance Service. .The Licensed Software has a two
digit
numeric designation, for example, 1.2. An issue of the Licensed Software
that changes the digit to the right of the decimal point in the numeric
designation shall be known as a new release (“Release”). The Supplier
shall provide support and maintenance Services for a minimum of two
years
for each Release from the date on which such Release is made generally
available.
|
| 5.5 |
Supplier
shall promptly provide to EDS any revisions to the existing Documentation
to reflect all Corrections or
Improvements.
|
| 5.6 |
Supplier
shall provide telephone hot-line support between 9:00 a.m. and 5:30
p.m.
at the applicable maintenance location. In addition, Supplier shall
provide to EDS, at the request of EDS and at Supplier’s then current
established charges, additional telephone hot-line support for up
to
twenty-four (24) hours per day, seven (7) days per week. The parties
agree
that the Supplier shall have thirty (30) days to implement a 24 x
7
support and maintenance Service from the date on which the parties
execute
an agreement for a 24 x 7 support and maintenance Service.
|
| 5.7 |
If
Supplier no longer provides, or does not appoint a third party to
provide,
support and maintenance Services for the Licensed Software, then
Supplier
or its authorised agent will promptly provide to EDS one (1) copy
of the
most current version of the source code for the Licensed Software.
In
order to ensure compliance with the foregoing, Supplier will promptly
and
continuously update and supplement the source code as necessary with
all
revisions, corrections, enhancements, and other changes that Supplier
has
developed for the Licensed Software. The governing Licence also includes
the right to use the source code version of the Licensed Software
if
received under this clause 5.7 as necessary to modify, maintain,
and
update the Licensed Software in accordance with the terms and conditions
of this Agreement.
|
| 6. |
TRANSFER
OF LICENSED
SOFTWARE.
|
| 6.1 |
During
the performance or upon termination of a contract with an EDS customer
or
upon any transfer of equipment incorporating Licensed Software to
a third
party (such customers and third parties referred to as “Transferee”), (i)
EDS may sub-licence the applicable Licensed Software to such Transferee
pursuant to terms and conditions similar to those contained in this
Section B (excluding the right to sub-licence), (ii) the applicable
Licence (excluding the right to sub-licence) may be assigned or novated
to
such Transferee, or (iii) upon request by EDS, the Licensed Software
will
be Licensed directly by Supplier to such Transferee in accordance
with the
terms and conditions of Supplier’s standard software Licence agreement or
as agreed upon by Supplier and Transferee. Any assignment, novation
or
sublicensing of Licensed Software in accordance with this clause
6 shall
be at no additional charge to EDS or Transferee, and EDS shall have
no
further liability or responsibility with respect to Licensed Software
under (ii) or (iii) above. If the Transferee were not an EDS customer,
then such transfer will require the written approval of the Supplier.
Such
written approval shall not be unreasonably withheld.
|
| 6.2 |
If
the Licensed Software were subject to a transfer under 6.1, the Supplier
agrees that EDS would be a permitted user of the Licensed Software,
subject to such Use being in accordance with EDS’s services to the
Transferee.
|
| 6.3 |
If
the Licensed Software were subject to a transfer under 6.1, the Supplier
agrees that support and maintenance Services that are available to
EDS
under this Agreement shall be made available to the Transferee under
terms
and conditions similar to those contained in this
Agreement.
|
|
7.
|
PROPRIETARY
MARKINGS.
|
EDS
shall
not remove or destroy any proprietary markings or proprietary legends placed
upon or contained within the Licensed Software or
Documentation.
-4
|
8.
|
DUPLICATION
OF DOCUMENTATION.
|
EDS
may
duplicate Licensed Software Documentation, at no additional charge, for EDS’ use
or for use by a customer of EDS in connection with the provision of Licensed
Software so long as all required proprietary markings are retained on all
duplicated copies.
| 9. |
PROTECTION
OF LICENSED SOFTWARE.
|
| 9.1 |
During
the term of a Licence, EDS will treat the Licensed Software and
Documentation with the same degree of care and confidentiality which
EDS
provides for similar information belonging to EDS which EDS does
not wish
disclosed to the public, but not less than reasonable care. This
provision
shall not apply to Licensed Software and Documentation, or any portion
thereof, which is (i) already known by EDS without an obligation
of
confidentiality, (ii) publicly known or becomes publicly known through
no
unauthorised act of EDS, (iii) rightfully received from a third party
without obligation of confidentiality, (iv) disclosed without similar
restrictions by Supplier to a third party, (v) approved by Supplier
for
disclosure, or (vi) required to be disclosed pursuant to a requirement
of
a governmental agency or law so long as EDS provides Supplier with
timely
prior written notice of such
requirement.
|
| 9.2 |
In
relation to each Licence granted under this Agreement, it will not
be a
violation of this Agreement if EDS provides access to and the Use
of the
Licensed Software or Documentation to third parties providing services
to
EDS on the same EDS customer engagement for which the Licence has
been
granted, so long as EDS secures execution by such third parties of
a
confidentiality agreement as would normally be required by
EDS.
|
SECTION
C: WARRANTIES,
INDEMNITIES, AND LIABILITIES
| 10. |
WARRANTY.
|
| 10.1 |
Supplier
represents and warrants that throughout the term of this
Agreement:
|
|
10.1.1
|
the
Supplier has full capacity and authority and all necessary consents
(including but not limited to, where its procedures so require, the
consent of its parent company) to enter into and to perform this
Agreement
and that this Agreement is executed by a duly authorised representative
of
the Supplier;
|
|
10.1.2
|
the
Licensed Software shall perform in accordance with its Applicable
Specifications and Documentation for a period of one (1) year from
the
date of receipt of the Licensed Software by EDS (the “Warranty
Period”);
|
|
10.1.3
|
no
portion of the Licensed Software contains, at the time of delivery,
any
“back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,”
“virus,” or other computer software routines or hardware components
designed to (i) permit access or use of either the Licensed Software
or
EDS’ computer systems by Supplier or a third party not authorised by this
Agreement, (ii) disable, damage or erase the Licensed Software or
data, or
(iii) perform any other such
actions;
|
|
10.1.4
|
the
Licensed Software and the design thereof shall not contain preprogrammed
preventative routines or similar devices which prevent EDS from exercising
the rights granted to EDS under this
Agreement;
|
|
10.1.5
|
neither
the performance nor the functionality of the Licensed Software will
be
affected by any changes to the date format or date calculations within
any
part of the Licensed Software;
|
-5
|
10.1.6
|
each
item of Licensed Software and its media shall be new and shall be
free
from material defects in manufacture, materials, and
design;
|
|
10.1.7
|
Supplier
has all right, title, ownership interest, and/or marketing rights
necessary to provide the Licensed Software and Documentation to
EDS;
|
|
10.1.8
|
each
License, the Licensed Software and Documentation and their License
and use
hereunder, do not and shall not infringe upon any copyright, patent,
trade
secret, or other proprietary or Intellectual Property Right of any
third
party; and
|
|
10.1.9
|
the
Services shall be supplied and rendered with all due skill, care
and
diligence by appropriately experienced, qualified and trained
personnel.
|
| 11. |
INTELLECTUAL
PROPERTY RIGHTS
INDEMNIFICATION.
|
|
11.1
|
Supplier
shall fully indemnify EDS against any and all actions, claims, demands,
losses, damages, liabilities, awards, costs, and expenses (including
legal
fees) arising from or incurred by reason of any infringement or alleged
infringement of any Intellectual Property Rights in connection with
the
Licensed Software and Services.
|
|
11.2
|
Supplier
shall forthwith notify EDS in writing if any claim or demand is made
or
action brought against the Supplier for infringement or alleged
infringement of any Intellectual Property Rights in connection with
the
Licensed Software and Services.
|
|
11.3
|
EDS
shall forthwith notify the Supplier if any claim or demand or action
brought against EDS or EDS’ customer for infringement or alleged
infringement of any Intellectual Property Rights in connection with
the
Licensed Software and Services. Supplier shall at its own expense,
conduct
any litigation arising therefrom and all negotiations for settlement
of
the same and EDS hereby grants to the Supplier exclusive control
of any
such litigation and the negotiation for the settlement of the
same.
|
|
11.4
|
If
a claim, demand or action for infringement or alleged infringement
of any
Intellectual Property Rights is made by any third parties or in the
reasonable opinion of the Supplier is likely to be made, the Supplier
shall at its own expense:
|
|
11.4.1
|
procure
for EDS and Transferees of the Licensed Software, or Documentation
the
right to continue to use the infringing Licensed Software or Documentation
as set forth in this Agreement, or
|
|
11.4.2
|
replace
or modify the infringing Licensed Software or Documentation to make
its
use non-infringing while being capable of performing the same function
without degradation of performance.
|
| 11.5 |
If
a modification or replacement in accordance with clause 11.4.2 is
not
possible so as to avoid the infringement or the Supplier has been
unable
to procure a License in accordance with clause 11.4.1, the Supplier
shall
be liable for all costs of substitute software and services during
the
period of this Agreement..
|
| 12. |
LIMITATION
OF LIABILITY.
|
|
12.1
|
Subject
to clause 12.2, in the event one party is liable to the other party
for
any matter relating to or arising in conjunction with this Agreement,
then
the amount of damages recoverable against the liable party for all
events,
acts and omissions shall not exceed in the aggregate the greater
of (a)
two million pounds (£2,000,000); or (b) the aggregate amount of all
purchases made by EDS under this Agreement up to the date of the
event,
act or omission giving rise to the
liability.
|
-6
|
12.2
|
Neither
party:
|
12.2.1 excludes
or limits liability to the other party for fraud, death or personal
injury;
12.2.2 shall
be
liable for amounts representing
|
(a)
|
loss
of profits, business, revenue, goodwill or anticipated savings; and/or
|
|
(b)
|
indirect
or consequential loss or damage
|
| 12.3 |
Any
limitation or exclusion set forth in this clause 12, shall not apply
to
the indemnification obligations set forth in clause
11.
|
| 13. |
SURVIVAL
OF TERMS.
|
The
provisions of this Section C, shall survive the term or termination of this
Agreement for any reason.
SECTION
D: CHARGES
AND PAYMENT
| 14. |
CHARGES,
PRICES, AND FEES.
|
Charges,
prices, and fees (“Charges”) and discounts, if any, for Licensed Software and
Services shall be determined as set forth in Schedule 1, in a Purchase Order,
or
as otherwise agreed upon by the parties in writing. Any increase in a Charge
shall not occur unless a minimum of twelve (12) months has elapsed since the
effective date of the previously established Charge. Any increase on list price
shall not exceed the current Retail Price Index. In no event shall Charges
exceed Supplier’s then current established charges, prices, and
fees.
| 15. |
PAYMENT.
|
| 15.1 |
Any
undisputed sum due to Supplier pursuant to this Agreement shall be
payable
within thirty (30) days after receipt by EDS of a correct invoice
from
Supplier.
|
| 15.2 |
Supplier
shall invoice EDS on or after the applicable acceptance date for
the
Licensed Software covered by such invoice.
|
| 15.3 |
Payment
for any other Services shall be invoiced as agreed upon by the parties
or,
in the absence of an agreement, upon completion of such Services.
|
| 15.4 |
A
“correct” invoice shall contain (i) Supplier’s name and invoice date, (ii)
the specific Purchase Order number if applicable, (iii) description
including serial number as applicable, price, and quantity of the
Licensed
Software or Services actually delivered or rendered, (iv) credits
(if
applicable), (v) name (where applicable), title, phone number, and
complete mailing address of responsible official to whom payment
is to be
sent, and (vi) VAT details. A correct invoice must be submitted to
the
appropriate invoice address listed on the applicable Purchase
Order.
|
| 15.5 |
Value
added tax shall be paid by EDS on those sums at the rate and in the
manner
prescribed by law from time to
time.
|
-7
SECTION
E: TERMINATION
| 16. |
TERMINATION
FOR CAUSE.
|
In
the
event that either party materially or repeatedly defaults in the performance
of
any of its duties or obligations set forth in this Agreement, and such default
is not substantially cured within thirty (30) days, or such other period as
may
be agreed between the parties, after written notice is given to the defaulting
party specifying the default, then the party not in default may, by giving
written notice to the defaulting party:
|
a)
|
agree
such additional period to enable the defaulting party to cure such
default; or
|
|
b)
|
terminate
the applicable Licence or Purchase Order relating to such default
as of a
date specified in such notice of
termination.
|
| 17. |
TERMINATION
FOR INSOLVENCY.
|
Either
party may immediately terminate this Agreement and any Purchase Order by giving
written notice to the other party if the other party, being a company, passes
a
resolution, or a court makes an order that the other party or its parent company
be wound up otherwise than for the purposes of a bona fide reconstruction or
amalgamation, or a receiver, manager or administrator on behalf of a creditor
is
appointed in respect of the business or any part thereof of the other party
or
its parent company, or circumstances arise which entitle a court or a creditor
to appoint a receiver, manager or administrator or which entitle a court
otherwise than for the purposes of a bona fide reconstruction or amalgamation
to
make a winding-up order, or the other party or its parent company is unable
to
pay its debts within the meaning of Section 123 of the Insolvency Xxx 0000
or
any similar event occurs under the law of any other jurisdiction.
| 18. |
TERMINATION
OF SOFTWARE LICENCE.
|
EDS
may
terminate any Licence for any reason by providing written notice to Supplier
subject to no outstanding fees being owed by EDS. If EDS elects to so terminate
a Licence, EDS shall return to Supplier or, at EDS’ option, destroy, all copies
of the Licensed Software and Documentation in EDS’ possession which are the
subject of the terminated Licence, except as may be necessary for archival
purposes. In such event, Supplier shall refund to EDS a prorated amount of
any
prepaid Maintenance Fees.
| 19. |
RIGHTS
UPON TERMINATION.
|
Unless
specifically terminated as set forth in this Section E, all Licences (and EDS’
right to use the Licensed Software in accordance with such Licences) and
Purchase Orders which require performance or extend beyond the term of this
Agreement shall, at EDS’ option, be so performed and extended and shall continue
to be subject to the terms and conditions of this Agreement.
| 20. |
SURVIVAL
OF TERMS.
|
Termination
or expiration of this Agreement for any reason shall not release either party
from any liabilities or obligations set forth in this Agreement which (i) the
parties have expressly agreed shall survive any such termination or expiration,
or (ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
-8
SECTION
F: MISCELLANEOUS
| 21. |
BINDING
NATURE, ASSIGNMENT, AND
SUBCONTRACTING.
|
This
Agreement shall be binding on the parties and their respective successors in
interest and assigns. Neither party shall have the power to assign this
Agreement without the prior written consent of the other party, which shall
not
be unreasonably withheld. If either party subcontracts or delegates any of
its
duties or obligations of performance in this Agreement or in a Purchase Order
to
any third party, that party shall remain fully responsible for complete
performance of all of it’s obligations set forth in this Agreement or in such
Purchase Order and for any such third party’s compliance with the non-disclosure
and confidentiality provisions set forth in this Agreement.
| 22. |
CONFIDENTIALITY.
|
Supplier
acknowledges that in the course of performance of its obligations pursuant
to
this Agreement, Supplier may obtain confidential and/or proprietary information
of EDS or its affiliates or customers. “Confidential Information” includes:
information relating to development plans, costs, finances, marketing plans,
equipment configurations, data, access or security codes or procedures utilised
or acquired, business opportunities, names of customers, research, and
development; proprietary software; the terms, conditions and existence of this
Agreement; the pricing provisions included within or incorporated into this
Agreement; any information designated as confidential in writing or identified
as confidential at the time of disclosure if such disclosure is verbal or
visual; and any copies of the prior categories or excerpts included in other
materials created by the recipient party. Supplier hereby agrees that all
Confidential Information communicated to it by EDS, its affiliates, or
customers, whether before or after the Effective Date, shall be and was received
in strict confidence, shall be used only for purposes of this Agreement, and
shall not be disclosed by Supplier, its agents or employees without the prior
written consent of EDS. This provision shall not apply to Confidential
Information which is (i) already known by Supplier without an obligation of
confidentiality, (ii) publicly known or becomes publicly known through no
unauthorised act of Supplier, (iii) rightfully received from a third party
(other than an EDS customer or an EDS affiliate) without obligation of
confidentiality, (iv) disclosed without similar restrictions by EDS to a third
party (other than an EDS customer or an EDS affiliate), (v) approved by EDS
for
disclosure, or (vi) required to be disclosed pursuant to a requirement of a
governmental agency or law so long as Supplier provides EDS with timely prior
notice of such requirement. Except with respect to Licensed Software, which
shall be governed by clause 9 (Protection of Licensed Software), information
received by EDS from Supplier shall only be considered proprietary and/or
confidential after a separate non-disclosure agreement, has been executed by
a
duly authorised representative of each party for the specific purpose of
disclosing such information. The provisions of this clause 21 shall survive
the
term or termination of this Agreement for any reason.
| 23. |
PUBLICITY.
|
Except
for any announcement intended solely for internal distribution by either EDS
or
Supplier, or any disclosure required by legal, accounting, or regulatory
requirements beyond the reasonable control of either party, all press releases,
public announcements, or public disclosures (including, but not limited to,
promotional or marketing material) by either party or its employees or agents
relating to this Agreement or its subject matter, or including the name, trade
name, trade xxxx, or symbol of either party or any affiliate of each party,
shall be coordinated with and approved in writing by both parties prior to
the
release thereof. Supplier shall not represent directly or indirectly that any
Licensed Software or Service provided by Supplier to EDS has been approved
or
endorsed by EDS or include the name, trade name, trade xxxx, or symbol of EDS
or
any affiliate of EDS on a list of Supplier’s customers without EDS’ express
written consent.
-9
| 24. |
NOTICES.
|
Any
notice or other communication to be given under this Agreement must be in
writing and may be delivered or sent by pre-paid first class letter post or
facsimile transmission to the party to be served at that party’s last known
address. In the case of EDS all notices and other communication must be marked
to the attention of the Global Purchasing UK Director. Any notice or document
shall be deemed served if delivered, at the time of delivery; if posted, 48
hours after posting; and if sent by facsimile transmission, at the time of
transmission.
| 25. |
FORCE
MAJEURE.
|
The
term
“Force Majeure” shall be defined to include fires or other casualties or
accidents, acts of God, severe weather conditions, strikes or industrial
disputes, war or other violence, or any law, or requirement of any governmental
agency. A party whose performance is prevented, restricted, or interfered with
by reason of a Force Majeure condition shall be excused from such performance
to
the extent of such Force Majeure condition so long as such party provides the
other party with prompt written notice describing the Force Majeure condition
and takes all reasonable steps to avoid or remove such causes of nonperformance
and immediately continues performance whenever and to the extent such causes
are
removed.
| 26. |
SEVERABILITY.
|
If,
but
only to the extent that, any provision of this Agreement is declared or found
to
be illegal, unenforceable, or void, then both parties shall be relieved of
all
obligations arising under such provision, it being the intent and agreement
of
the parties that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable while
preserving its intent. If that is not possible, another provision that is legal
and enforceable and achieves the same objective shall be substituted. If the
remainder of this Agreement is not affected by such declaration or finding
and
is capable of substantial performance, then the remainder shall be enforced
to
the extent permitted by law.
| 27. |
WAIVER.
|
No
omission or delay on the part of any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver by it of ay right
to
exercise it in future or of any other of its rights under this Agreement. No
waiver of any term, provision or condition of this Agreement shall be effective
except to the extent to which it is made in writing and signed by the waiving
party.
| 28. |
RELATIONSHIP
|
EDS
and
Supplier acknowledge and agree that this Agreement shall not constitute, create
or give effect to a joint venture, pooling arrangement, principal/agency
relationship, partnership or formal business organization of any kind and
neither EDS nor the Supplier shall have the right to bind each other without
the
other’s express prior written consent.
| 29. |
GOVERNING
LAW.
|
This
Agreement shall be considered as a contract made in England and according to
English law and subject to the exclusive jurisdiction of the English courts,
to
which both parties hereby submit.
-10
| 30. |
COMPLIANCE
WITH LAWS.
|
| 30.1 |
In
the performance of Services or the provision of Products pursuant
to this
Agreement, Supplier shall comply with the requirements of all applicable
laws, ordinances, and regulations of England or any country, or other
governmental entity.
|
| 30.2 |
Supplier
represents and warrants that it is familiar with the terms and provisions
of the U.S. Foreign Corrupt Practices Act (as amended, the "FCPA"),
and
further specifically agrees that it will comply with the FCPA.
|
| 30.3 |
Supplier
agrees that no payment shall be made to it by EDS except as provided
in
this Agreement, and that all such payments shall be made by check
or
through normal banking channels not involving the payment of cash.
Supplier represents and warrants that Supplier is and will remain
the
record owner of each account specified by it for payments under this
Agreement. No assignment by Supplier of funds under this Agreement
to any
person other than a recognized financial institution is permitted
without
the prior approval of EDS.
|
| 30.4 |
If
so requested, Supplier
shall certify annually for the benefit of EDS, the continued accuracy
of
the representations and warranties and full performance of all covenants
and agreements set forth in this Section. Supplier
also agrees that its books and records with respect to its performance
under or related to this Agreement shall be subject to audit by EDS
or
appropriate authorities annually to ensure compliance with this Section.
Supplier shall
inform EDS promptly (i) of any change in the ownership or control
of
Supplier
or
(ii) if it becomes aware of any facts indicating that a violation
of any
of the requirements of this Section may
have occurred. Any out of the ordinary costs for compliance with
this
section 30.4 provision will be repaid to Supplier by EDS. This includes,
but is not limited to audit
services.
|
| 30.5 |
EDS
shall be excused from performance of its obligations under this Agreement,
and may terminate this Agreement without penalty upon written notice
to
Supplier,
in the event Supplier
fails
to comply with its obligations under this Section, or if any change
in
ownership or control of Supplier
occurs
which is reasonably determined by EDS to present a risk of non-compliance
by Supplier
with
applicable laws.
|
| 31 |
ESCROW
|
| 31.1 |
Supplier
shall add EDS as a third party beneficiary to its escrow arrangement.
Where Supplier has no escrow arrangement, Supplier shall enter into
an
escrow arrangement with an escrow agent. In the event that
the:
|
| a. |
Supplier
ceases to make available support and maintenance Services for the
Licensed
Software during a period in which EDS is entitled to receive or to
purchase, or is receiving or purchasing, such support and maintenance
Services and Supplier has not promptly cured such failure despite
EDS’s
demand that Supplier make available or perform such support and
maintenance Services; or
|
| b. |
the
Supplier files or is the subject of a petition of bankruptcy, makes
a
general assignment for the benefit of creditors, appoints or has
appointed
a general receiver or trustee in bankruptcy for Supplier’s business or
property, provided that any such events shall not apply if within
ten (10)
days thereafter Supplier or its receiver or trustee provides assurances
to
EDS, in writing, of Supplier’s continuing ability to fulfill all material
obligations under this Agreement; or
|
| c. |
Supplier
ceases business operations generally and stops providing support
and
maintenance Services to EDS; or
|
| d. |
Supplier
has transferred all or substantially all of its assets or obligations
set
forth in this Agreement to a third party and such third party has
not
assumed all the obligations of Supplier set forth in this Agreement
under
substantially similar terms; then
|
-11
| e. | If any of the events detailed in 31.1.a) to 31.1.d) occur EDS shall be entitled to receive a copy of the most current version of the source code for the affected Licensed Software. |
| 31.2 |
Each
Licence granted under the Agreement includes the right to use the
source
code version of the Licensed Software received under this Escrow
clause as
necessary to modify, maintain and update the Licensed Software in
accordance with the terms and conditions of this
Agreement.
|
| 32. |
ENTIRE
AGREEMENT.
|
| 32.1 |
This
Agreement constitutes the entire understanding between the parties
relating to the subject matter and there are no oral or written
representations, understandings or agreements relating to this Agreement
which are not fully expressed in the Agreement.
|
| 32.2 |
Each
party unconditionally waives any rights it may have to claim
damages or to
seek to rescind this Agreement on the basis of any statement
made by the
other (whether made carelessly or not) unless such statement
was made
fraudulently.
|
| 32.3 |
This
Agreement shall not be amended except by a written agreement signed
by
both parties.
|
| 32.4 |
All
documents and schedules referenced in this Agreement or attached
to this
Agreement, and each Purchase Order are an integral part of this Agreement.
In the event of any conflict between the terms and conditions of
this
Agreement and any such documents or schedules, the terms of this
Agreement
shall be controlling unless otherwise stated or agreed. In the event
of a
conflict between the terms and conditions of this Agreement and a
Purchase
Order, the Purchase Order shall be controlling with respect to those
transactions covered by that Purchase Order. Any other terms or conditions
included in any shrink-wrap Licence agreements, quotes, invoices,
acknowledgments, bills of lading, or other forms utilised or exchanged
by
the parties shall not be incorporated in this Agreement or be binding
upon
the parties unless the parties expressly agree in writing or unless
otherwise provided for in this
Agreement.
|
IN
WITNESS
of which
this Agreement has been duly executed by the parties.
|
Signed
for and on behalf of
|
||
|
ELECTRONIC
DATA SYSTEMS LIMITED
|
Codestream
Software Limited
|
|
|
Signed:
/s/
|
Signed:
/s/
|
|
|
Printed
Name:________________________________
|
Printed
Name:________________________________
|
|
|
Title:_______________________________________
|
Title:_______________________________________
|
|
|
Date:_______________________________________
|
Date:
_______________________________________
|
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