TERM SHEET
`TERM
SHEET
DATE [*]
PARTIES
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(1)
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[*]
whose registered office is at [*].
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(2)
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IXI
Mobile (R&D)
(an Israeli company) whose registered office is at 00 Xxxxxxxx Xx.,
Xx'xxxxx, 00000, Xxxxxx • (the
“Reseller”).
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[*]
shall
license the Software [and provide the Maintenance Services] to the Reseller,
in
each case subject to and in accordance with the provisions of this Term Sheet
and the attached [*] Reseller Software Licence Agreement [and Maintenance
Agreement].
Reseller
shall be treated as a Preferred Customer by [*], of which general Roles and
Responsibilities are outlined in Appendix 4 (“Roles and
Responsibilities”).
AGREED
TERMS
| 1 |
SOFTWARE
AND DOCUMENTATION
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Software
[*] version [*],The first release of Software to Reseller will be an earlier
release, the Reseller will be provided releases up to and including version
[*]
under the terms of this agreement as attached in Appendix 1 (“Roadmap”) and
other features as defined in Appendix 2 (“Additional Features”).
| 2 |
LICENCE
FEES
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Payment
of the License Fee will be due in accordance with the terms of this Agreement.
In the event of non-payment [*] shall have the right to terminate this agreement
under the terms set out in Article 20
of the
Agreement.
Reseller
will license the Software to each Licensee of Reseller as an ASP
Service.
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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Table
1
[*]
or
at any
other level that may be agreed in writing between the parties.
[*]
[*]
Licensors
will provide, where agreed by both parties, the Licensed Program for trial
versions, pilots and demo licenses free of charge. Any custom development,
consulting or installation by Licensors will be charged based on the consulting
rates outlined in Article 5
of this
Agreement.
1
| 3 |
SUPPORT
MATERIAL
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Each
copy
of Licenses Programs will include [*]
printed
and one electronic copy of the Support Material. Additional copies of printed
Support Material are available at [*].
Reseller may make additional copies of the Support Material in accordance with
this Agreement.
| 4 |
MAINTENANCE
AND SUPPORT
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The
fee
for support and maintenance is based on [*], which fee level is determined
by
[*] and will include maintenance releases, modification and remote software
support.
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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Table
2
[*]
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5
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INVOICING,
REPORTS AND PAYMENT TERMS
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Reseller
shall provide [*] reports no later than [*] after the end of each month, for
[*].
[*]
shall
provide an invoice no later [*] after receipt of the [*] report for [*].
Payments
are due [*].
Invoice
schedule:
1. [*];
1.1.
[*];
1.2.
[*].
2. [*].
The
payments under 1.2 and 2 above will be fully creditable toward the license
fee
which may be charged to the Reseller under the Agreement.
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6
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CONSULTING
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Licensors
will provide IXI with consulting services during the pre-sales phase and
installation phase [*]. The regular consultancy rate is currently [*] and
therefore Resellers rate will be [*].
Furthermore,
IXI may purchase the following Consulting Services;
1. [*].
2. [*].
3. [*].
2
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7
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INSTALLATION,
COMMISSIONING AND TRAINING
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The
fees
for initial installation, commissioning and training will be [*],
to be
completed in a single, continuous, site visit. Additional support and/or
training will be available at Consulting rates as defined in Clause 5
‘CONSULTING’. Scheduling for any additional support and training to be agreed by
both parties.
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8
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PRICE
ADJUSTMENTS
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Either
Party hereto has the right to request [*]
a
re-negotiation of the consulting fees in connection with the Account
Reviews.
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SIGNED
for and on behalf of [*]
by
a duly-authorised signatory:
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Signature
[*]
Director
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SIGNED
for and on behalf of IXI
Mobile (R&D)
by
a duly-authorised signatory:
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Signature
/s/
Xxxx Xxxxx
CFO
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3
[*]
GATEWAY ASP RESELLER LICENCE AGREEMENT
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INTERPRETATION
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The
definitions and rules of interpretation in this clause apply in the
Agreement.
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Affiliate
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includes
each and any subsidiary or holding company of the Reseller and each
and
any subsidiary of a holding company of the Reseller.
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Agreement
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the
agreement between the parties in respect of the Software and the
Services,
comprising the Term Sheet, the Licence, the Maintenance Agreement
(if
applicable) and any other documents referred to in or attached to
the Term
Sheet.
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ASP
Services
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services
provided by the Reseller by which the Reseller or End Users can Manage
Subscribers on behalf of End Users by means of the Software hosted
by the
Reseller under this Agreement.
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Business
Day
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any
day which is not a Saturday, a Sunday or an English bank or public
holiday.
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Documentation
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the
documentation provided by [*] for the Software, in either printed
text or
machine readable form, as set out in the Term Sheet.
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Effective
Date
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the
date on which the Agreement comes into force, as specified in the
Term
Sheet or (if no such date is specified) the earlier of (i) the date
on
which both parties have confirmed their agreement to the Term Sheet
and
(ii) the date on which the Software is first installed on any equipment
of
the Reseller.
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End
User
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any
person to which the Reseller provides the ASP Services.
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Intellectual
Property Rights
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all
patents, copyrights, design rights, trade marks, service marks, trade
secrets, know-how, database rights and other rights in the nature
of
intellectual property rights (whether registered or unregistered)
and all
applications for the same, anywhere in the world.
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Liability
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any
and all liability of [*] in contract, tort (including, without limitation,
negligence) or otherwise whether arising out of, in connection with
or in
relation to the Software or the Services or the supply or nonsupply
of the
Software or the Services or otherwise under or in connection with
the
Agreement.
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Licence
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the
licence granted by [*] to the Reseller in accordance with these terms
and
the provisions of the Term Sheet.
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4
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Licence
Fees
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the
licence fees payable by the Reseller to [*] upon the grant of this
Licence, as specified in the Term Sheet, including any installation,
commissioning and training fees specified in the Term Sheet but (for
the
avoidance of doubt) excluding any Licence Renewal Fees.
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New
Version Fees
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the
fees payable (if any) by the Reseller under clause 14.1
in
respect of the provision of New Versions, or as notified by [*] to
the
Reseller from time to time under clause 14.4.
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Maintenance
Agreement
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the
form of maintenance agreement (if any) for the Software as attached
to the
Term Sheet.
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Maintenance
Release
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release
of the Software which corrects faults, adds functionality or otherwise
amends or upgrades the Software, but which does not constitute a
New
Version.
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Modification
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any
Maintenance Release, or any other modification of the Software made
or
provided by [*] (whether under the Maintenance Agreement or otherwise)
to
the Reseller for use under this Agreement.
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New
Version
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any
new version of the Software which from time to time is publicly marketed
and offered for purchase by [*] in the course of its normal business,
being a version which contains such significant differences from
the
previous versions as to be generally accepted in the marketplace
as
constituting a new product.
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Representative
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each
party’s representative for the purposes of the Agreement, as specified
in
the Term Sheet or as otherwise notified by that party to the other
from
time to time.
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Services
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any
services supplied by [*] under the Agreement, including without limitation
under the Maintenance Agreement.
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Software
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the
computer programs specified in the Term Sheet, along with any Modification
which is acquired by the Reseller during the term of this Licence
(whether
pursuant to the Maintenance Agreement or otherwise).
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Synchronise
Device
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to
synchronise the pertinent Subscriber data on a device.
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Term
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the
period beginning on the Effective Date and ending on termination
of this
Licence.
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Term
Sheet
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the
term sheet setting out the terms on which [*] is granting the Licence
and
providing any related services.
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5
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UK
Intellectual Property Rights
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any
Intellectual Property Rights arising under English law.
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Warranty
Period
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in
respect of the Software as first supplied to the Reseller under this
Licence, a period of [*] from the installation of the Software, and
in
respect of each New Version, a period [*] from installation of that
New
Version.
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Year
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each
period of twelve months commencing on the Effective Date or the
anniversary of the Effective Date.
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9.2
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Holding
company
shall be construed in accordance with sections 736 and 736A of the
Companies Act 1985, as amended.
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9.3
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Subsidiary
shall be construed in accordance with sections 736 and 736A of the
Companies Act 1985, as amended.
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The
headings in this Licence do not affect its interpretation. Save where
the
context otherwise requires, references to clauses and schedules are
to
clauses and schedules of this
Licence.
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Unless
the context otherwise requires:
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references
to [*] and the Reseller include their permitted successors and
assigns;
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references
to statutory provisions include those statutory provisions as amended
or
re-enacted; and
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references
to any gender include all genders.
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In
the case of conflict or ambiguity between any provision contained
in the
body of this Licence and any provision contained in the Maintenance
Agreement or the Term Sheet, the following descending order of precedence
shall apply:
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9.6.1
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Term
Sheet;
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9.6.2
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Licence
(other than, where applicable, the Maintenance Agreement);
and
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9.6.3
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Maintenance
Agreement.
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Words
in the singular include the plural and in the plural include the
singular.
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LICENCE
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In
consideration of the Reseller agreeing to pay the Licence Fees to [*] and to
comply with the other provisions of this Licence, [*] grants to the Reseller
a
non-exclusive [*] licence for the Term
to use
the Software to provide ASP Services to Reseller’s Customers in
accordance with and subject to the terms of this Licence.
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SCOPE
OF LICENCE
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11.1
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For
the purposes of clause 10 use
of
the Software shall be restricted to use of the Software in object
code
form to provide ASP Services to enable End Users to Synchronise Devices,
or for the Reseller to Synchronise Devices on behalf of End Users
or it’s
Customers.
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The
Reseller may not use the Software other than as specified in clause
11
without the prior written consent of [*] and the Reseller acknowledges
that additional fees may be payable on any change of use approved
by
[*].
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6
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11.3
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The
Reseller shall not permit any End User directly or indirectly to
install
the Software or to use the Software other than by means of the ASP
Services.
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The
Reseller may make a reasonable number of back-up copies of the Software
for its lawful use. The Reseller shall record the number and location
of
all copies of the Software and use its best endeavours to prevent
unauthorised copying.
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Except
as stated in this clause 10, the Reseller has no right (and shall
not
permit any third party) to adapt, reverse engineer, decompile,
disassemble, modify, adapt or make error corrections to the Software
in
whole or in part except
to
the extent that any reduction of the Software to human readable form
(whether by reverse engineering, decompilation or disassembly) is
necessary for the purposes of integrating the operation of the Software
with the operation of other software or systems used by the Reseller.
[*]
is prepared to consider such integration at a reasonable commercial
fee
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DEFINITION
OF SUBSCRIBER
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12.1
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For
the avoidance of doubt, this Licence is granted in respect of unique
end-users, registered on the Software according to the telephone
number,
or IMEI number, whichever is available, for that end-user (“Subscriber”).
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12.2
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[*].
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12.3
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[*].
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12.4
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The
Reseller shall allow an independent pre-approved accountant (Reseller's
approval shall not be unreasonably withheld or delayed) on behalf
of [*],
subject to the undertaking of reasonable confidentiality obligations
by
such accountant, to attend the premises of the Reseller at reasonable
times on reasonable notice for the purpose of auditing the Reseller’s use
of the Software and the Reseller shall grant the accountant access
to its
installation of the Software and its other records reasonably necessary
for this purpose.
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13
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NEW
VERSIONS
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13.1
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Subject
to and in consideration of the Reseller [*], [*] shall make available
to
the Reseller any and all New Versions of the Software that it releases
during the term of this Licence.
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13.2
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Upon
the Reseller acquiring and installing a New Version of the
Software,
that New Version shall become the Software for the purposes of the
Agreement.
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13.3
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[*]
shall determine in its sole discretion (but acting reasonably) whether
any
release of software constitutes a Maintenance Release, a New Version,
or a
wholly different product to which this Licence does not apply, provided
that the core functionality of the licensed product as shown in Clause
1
is maintained. Release of software under this clause 12.3 shall be
[*].
However that the new version to be released by [*] following the
Effective
Date supporting IMAP, webdav and other features discussed and not
specifically identified as a different product shall constitute a
Maintenance Release to be provided free of charge to
Reseller.
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14
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LICENCE
FEES
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In
consideration of the rights granted by [*] under this Licence, the
Reseller shall pay:
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14.1.1
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[*],
the Licence Fees, maintenance and support Fees plus any consultancy
fees
as set out in clause 5; and
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14.1.2
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[*],
the maintenance and support Fees.
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7
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14.1.3
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[*],
to be mutually agreed, in respect of New Versions that become available
as
and when required by the Reseller
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14.2
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[*].
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If,
after
a determination by foreign tax authorities, any taxes are required to be
withheld, on payments made by Reseller to [*], Reseller may deduct such taxes
from the amount owed [*] and pay them to the appropriate taxing authority;
provided however, that Reseller shall promptly secure and deliver to [*] an
official receipt for any such taxes withheld or other documents necessary to
enable [*] to claim a Foreign Tax Credit. Reseller will make certain that any
taxes withheld are minimized to the extent possible under applicable
law.
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If
the Reseller fails to pay any amount payable by it under the Agreement,
[*] shall be entitled (but not obliged) to charge the Reseller interest
on
the overdue amount, payable by the Reseller [*], at the rate of [*].
Such
interest shall accrue on a [*] basis and be compounded [*].
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[*]
shall be entitled to increase the Licence Fees for any New Version.
Any
such increase shall be notified to the Reseller at least [*] prior
to such
increase.
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MODIFICATIONS
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WARRANTIES
|
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[*]
warrants that:
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16.1.1
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subject
to clause 16.4,
the Software and each New Version shall during the applicable Warranty
Period for that Software or New Version (as the case may be) be capable
of
performing in all material respects the functions described in the
Documentation when operated (i) on a system that complies with the
requirements set out in the Documentation and (ii) in the manner
described
in the Documentation;
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16.1.2
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the
disks, tapes or other media upon which the Software or any New Version
is
provided will be free from defects in workmanship and material during
normal use for a period of [*] from delivery;
and
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16.1.3
|
all
Services shall be provided with reasonable care and
skill.
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16.1.4
|
Performance
shall generally be that a setup to support [*] users shall be [*]
gateways
(single [*] Pentium based machines with [*] RAM each) plus [*] machines
for databases (e.g. [*]) plus a hardware load
balancer
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16.2
|
In
the event that [*] is in breach of any of the express warranty set
out in
clause 16.1.1
above, [*]’s sole liability and the Reseller’s sole remedy shall be for
[*], [*]:
|
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[*];
or
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[*],
|
provided
the Reseller provides all the information that may be reasonably necessary
to
assist [*] in resolving the defect or fault, including sufficient information
to
enable [*] to re-create the defect or fault.
8
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16.3
|
The
Reseller acknowledges that it has assessed for itself the suitability
of
the Software for its requirements. Without derogating from the terms
set
forth in Sections 16.1
and 16.2
above, [*] does not warrant that the Software or the Documentation
will
meet Reseller’s requirements, or that the Software will operate in the
particular circumstances in which the Reseller uses it, or that any
use
will be uninterrupted or error
free.
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16.4
|
The
express warranty in clause 16.1.1
shall not apply to the extent that any failure of the Software to
conform
to the Specification arises from the Reseller or any End User, or
anyone
acting on the authority of the Reseller or any End User, having done
any
of the following:
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16.4.1
|
amended
the Software without [*]'s
approval;
|
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16.4.2
|
used
the Software outside the terms of this
Licence
|
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16.4.3
|
used
the Software for a purpose or in a context other than the purpose
or
context for which it was designed without [*]'s approval; or
|
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16.4.4
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used
the Software in combination with any other software not provided
or
approved in writing by [*] and such software causes the breach of
Warranty.
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16.5
|
The
warranties and conditions stated in this Licence are in lieu of all
other
warranties, conditions or other terms, whether express or implied,
statutory or otherwise, all of which are expressly excluded, including,
without limitation, any implied warranties or conditions as to
satisfactory quality, fitness for a particular purpose or as to the
use of
reasonable skill and care.
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17
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LIMITATIONS
ON LIABILITY
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17.1
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Nothing
in the Agreement shall limit [*]’s liability
for:
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17.1.1
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personal
injury or death caused by its negligence; or
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17.1.2
|
fraudulent
misrepresentation; or
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17.1.3
|
its
indemnification obligation under Section 19.3
hereunder; or
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17.1.4
|
its
confidentiality obligations under Section 22
hereunder..
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17.2
|
[*]’s
Liability for loss or damage to any tangible property, caused either
(1)
by defects in the Software or (2) by the negligence of [*]’s employees
shall be [*].
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17.3
|
Subject
to clause 17.1,
neither party shall have Liability for any of the following losses
or
damage (whether such losses or damage were foreseen, foreseeable,
known or
otherwise):
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17.3.1
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loss
of revenue,
loss of actual or anticipated profits (including for loss of profits
on
contracts), loss of the use of money, loss of anticipated savings,
loss of
business, loss of opportunity, loss of goodwill, loss
of reputation, or loss of, damage to or corruption of data;
or
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17.3.2
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any
indirect or consequential loss or damage howsoever caused (including,
for
the avoidance of doubt, whether or not such loss or damage is of
a type
specified in clause 17.3.1
above).
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17.4
|
Subject
to clauses 17.1
to
17.3
above, either party’s total Liability in aggregate for all claims arising
in any Year shall be [*].
|
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INDEMNITY
BY RESELLER
|
The
Reseller agrees to indemnify and keep indemnified [*] from and against all
costs, claims, demands, liabilities, expenses, damages or losses (including
without limitation any direct or indirect consequential losses, loss of profit
and loss of reputation, and all interest, penalties and legal and other
professional costs and expenses) which are finally awarded against [*] or
finally settled into arising out of or in connection with any claim made against
[*] by any End User or other third party in relation to the ASP Services
provided that [*] promptly notifies Reseller in writing of the claim and
Reseller has sole control of its defense and settlement; and receives reasonable
assistance (at its account) from [*] in its defence and settlement. The
indemnification obligation above shall not apply to any Infringement Claim
(as
defined in clause 19.3
below)
made against [*] by End User or other third party in relation to the ASP
Services.
9
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19
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INTELLECTUAL
PROPERTY RIGHTS
|
|
[*]
warrants that the Software and any Modification do not infringe on
any
copyright, patent or other proprietary rights (including trade secrets)
of
any third party.
|
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19.2
|
The
Reseller acknowledges that all Intellectual Property Rights in the
Software and any Modification belong and shall belong to [*], and
the
Reseller shall have no rights in or to the Software other than the
right
to use it in accordance with the terms of this
Licence.
|
|
[*]
undertakes at its own expense to defend the Reseller or, at its option,
settle any claim or action brought against the Reseller alleging
that the
possession, use, development, modification or maintenance of the
Software
(or any part thereof) in accordance with the terms of this Licence
infringes the intellectual property rights of a third party (Infringement
Claim)
and shall be responsible for any reasonable losses, damages, costs
(including legal fees) and expenses incurred by or awarded against
the
Reseller as a result of or in connection with any such Infringement
Claim.
For the avoidance of doubt, this clause 19.3
shall not apply where the Infringement Claim in question is attributable
to possession, use, development, modification or maintenance of the
Software (or any part thereof) by the Reseller other than in accordance
with the terms of this Licence.
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|
Clause
19.3
is
conditional on:
|
|
the
Reseller notifying [*] in writing, [*], of any Infringement Claim
of which
it has notice;
|
|
the
Reseller not making any admission as to liability or compromise or
agreeing to any settlement of any Infringement Claim without the
prior
written consent of [*], which consent shall not be unreasonably withheld
or delayed; and
|
|
[*]
having, at its own expense, the conduct of or the right to settle
all
negotiations and litigation arising from any Infringement Claim and
the
Reseller giving [*] all reasonable assistance in connection with
those
negotiations and such litigation at [*]’s request and
expense.
|
|
If
any Infringement Claim is made, or in [*]'s reasonable opinion is
likely
to be made, against the Reseller, [*] may at its sole option and
expense:
|
|
procure
for the Reseller the right to continue using, developing, modifying
or
maintaining the Software (or any part thereof) in accordance with
the
terms of this Licence; or
|
|
modify
the Software so that it ceases to be infringing;
or
|
|
replace
the Software with non-infringing software;
or
|
|
terminate
this Licence by notice in writing to the Reseller and refund any
of the
monies paid by the Reseller as at the date of termination on return
of the
Software and all copies thereof,
|
provided
that if [*] modifies or replaces the Software, the modified or replacement
Software must comply with the warranties contained in clause 16.1
and the
Reseller shall have the same rights in respect thereof as it would have had
under those clauses had the references to the date of this Licence been
references to the date on which such modification or replacement was made.
Notwithstanding the above, [*] may not terminate this License in accordance
with
sub-Section 18.5.4 without the prior written consent of Reseller, unless [*]
has
made its best efforts to perform each of the actions listed in
18.5.1-18.5.3.
10
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TERM
AND TERMINATION
|
|
This
Agreement shall continue in full force and effect for a period of
[*] as
of the [*]. The Agreement will automatically extend for an additional
[*]
thereafter, unless mutually terminated by the Parties in writing
at least
[*] prior to the expiration of any additional [*] period.
|
|
20.2
|
Either
party may terminate this Licence at any time on written notice to
the
other if the other:
|
|
is
in material or persistent breach of any of the terms of this Licence
and
either that breach is incapable of remedy, or the other party fails
to
remedy that breach [*] after receiving written notice requiring it
to
remedy that breach; or
|
|
is
unable to pay its debts (within the meaning of section 123 of the
Insolvency Act 1986), or becomes insolvent, or is subject to an order
or a
resolution for its liquidation, administration, winding-up or dissolution
(otherwise than for the purposes of a solvent amalgamation or
reconstruction), or has an administrative or other receiver, manager,
trustee, liquidator, administrator or similar officer appointed over
all
or any substantial part of its assets, or enters into or proposes
any
composition or arrangement with its creditors generally, or is subject
to
any analogous event or proceeding in any applicable jurisdiction;
or.
|
|
20.2.3
|
disputes
the ownership or validity of the party’s Intellectual Property
Rights.
|
|
Termination
by either party in accordance with the rights contained in this clause
20
shall be without prejudice to any other rights or remedies of that
party
accrued prior to termination.
|
|
On
termination:
|
|
all
rights granted to the Reseller under this Licence shall cease
|
|
20.4.2
|
the
Maintenance Agreement shall terminate
automatically;
|
|
notwithstanding
section 19.4.1 the Reseller shall cease all activities authorised
by this
Licence;
|
|
the
Reseller shall immediately pay to [*] any sums due to [*] under this
Licence;
|
|
except
for termination under Section 19.5.4
above,
no amounts paid by the Reseller under the Agreement up to termination
shall be refundable by [*]; and
|
|
20.4.6
|
the
Reseller shall immediately destroy or return to [*] (at [*]’s option) all
copies of the Software then in its possession, custody or control
and, in
the case of destruction, certify to [*] that it has done
so.
|
11
|
20.4.7
|
No
further financial obligations shall be accrued by
Reseller.
|
|
20.4.8
|
Termination
of this Agreement shall not affect any of the parties’ obligations which
exist as of the date of termination, or of those obligations which,
by the
context of this Agreement, are intended to survive its termination.
Specifically, but not limited to, these obligations are covered in
clauses
15,16,18 and 21-24.
|
|
20.4.9
|
Notwithstanding
anything to the contrary in this section 20.4,
Reseller shall, at its option, continue to maintain the service for
existing (at the date of termination) Subscribers. If Reseller so
chooses,
Reseller may keep the copies of the Software required for the said
maintenance of service and Reseller shall accept the corresponding
obligations as set forth in this
Agreement.
|
|
FORCE
MAJEURE
|
|
CONFIDENTIALITY
AND PUBLICITY
|
|
Each
party shall, during the term of this Licence and for [*] thereafter,
keep
confidential all, and shall not use for its own purposes nor without
the
prior written consent of the other disclose to any third party any,
information of a confidential nature (including, without limitation,
trade
secrets and information of commercial value) which may become known
to
such party from the other party and which relates to the other party
or
any of its Affiliates, unless such information is public knowledge
or
already known to such party at the time of disclosure, or subsequently
becomes public knowledge other than by breach of this Licence, or
subsequently comes lawfully into the possession of such party from
a third
party, or independently developed by such party without using such
information.
|
|
The
terms of this Licence are confidential and may not be disclosed by
either
Party without the prior written consent of the other
Party.
|
|
The
provisions of this clause 14 shall remain in full force and effect
notwithstanding termination of this Licence for any
reason.
|
|
22.4
|
Each
party grants the other party the right to use its name and the deployment
of the [*] Gateway Solution in public company statements, press releases
and other media publications. The precondition is that the other
party has
to agree on a case-by-case basis to all such public announcements
as
described above. Such agreements shall not to be unreasonably
withheld
|
|
DISPUTE
RESOLUTION
|
|
In
the event of any dispute arising between the parties that the
Representatives for each party are unable to resolve within a reasonable
time, the parties shall refer the dispute to their respective managing
directors, who shall attempt to resolve the dispute
[*].
|
|
23.2
|
If
the parties are unable to resolve the dispute by negotiation within
[*],
then the parties will attempt to settle it by mediation in accordance
with
the LCIA
Mediation
Procedure.
|
If
the
dispute is not settled by mediation within [*]
of
the
appointment of the mediator, or such further period as the parties shall agree
in writing, the dispute shall be referred to and finally resolved by arbitration
under the LCIA Rules, which Rules are deemed to be incorporated by reference
into this clause. The language to be used in the mediation and in the
arbitration shall be English. In any arbitration commenced pursuant to this
clause, the number of arbitrators shall be three; and the seat, or legal place,
of arbitration shall be New York, United States
12
|
NOTICES
|
|
24.1
|
Any
notice or other communication given under the Agreement shall be
in
writing and shall be served by delivering it personally or sending
it by
pre-paid recorded delivery, registered post (or registered airmail
where
dispatch or delivery takes place outside the United Kingdom), fax
or
(subject to clause 24.4)
email to the address and for the attention of the relevant party
set out
in the Term Sheet (or as otherwise notified by that party from time
to
time).
|
|
24.2
|
Any
such notice or other communication shall (subject to clause 24.3)
be deemed to have been received:
|
|
24.2.1
|
if
delivered personally, at the time of
delivery;
|
|
24.2.2
|
in
the case of pre-paid recorded delivery or registered post, 48 hours
from
the time of posting;
|
|
24.2.3
|
in
the case of registered airmail, 72 hours from the time of
posting;
|
|
24.2.4
|
in
the case of fax, at the time of transmission;
and
|
|
24.2.5
|
in
the case of email, twelve hours from the time of
posting.
|
|
24.3
|
If
deemed receipt occurs before 9am on a Business Day the notice shall
be
deemed to have been received at 9am on that day, and if deemed receipt
occurs after 5pm on a Business Day, or on a day which is not a Business
Day, the notice shall be deemed to have been received at 9am on the
next
Business Day.
|
|
24.4
|
Notice
given under clauses 20
(Termination) of this Licence or clause 13 (Termination) of the
Maintenance Agreement shall not be validly served if sent by
email.
|
|
25
|
GENERAL
|
|
Assignment
and sub-licensing
|
|
The
Reseller has no right to sub-license or to assign the benefit or
burden of
the Agreement in whole or in part, or to allow the Software to become
the
subject of any charge, lien or encumbrance without the prior written
consent of [*], which consent shall not be reasonably
withheld.
|
|
[*]
may sub-license, assign, charge or otherwise transfer any of its
rights or
obligations under the Agreement, provided it gives written notice
to the
Reseller of any sub-licence, assignment, charge or other transfer
and that
assignee, sub-licensee or transferee, as the case may be, assumes
and
performs all obligations of [*] under this Agreement.
|
|
25.1.3
|
Either
party may assign its rights and obligations hereunder to any of its
Affiliates; or in connection with a merger or other business combination
in which it is not the surviving entity, or
to the purchaser of substantially all of its assets to which this
Agreement relates, provided that the assignee or purchaser is not
a
competitor of the other party.
|
|
25.2
|
Waiver
|
13
|
Severability
|
|
If
any provision of the Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect
the
other provisions of the Agreement which shall remain in full force
and
effect.
|
|
25.3.2
|
If
any provision of the agreement is so found to be invalid or unenforceable
but would be valid or enforceable if some part of the provision were
deleted, the provision in question shall apply with such modification(s)
as may be necessary to make it valid and
enforceable.
|
|
Amendments
|
|
Third
party rights
|
|
Entire
agreement
|
|
25.6.1
|
For
the purposes of this clause 25.6,
“Pre-Contractual Statement” means any undertaking, promise, assurance,
statement, representation, warranty or understanding (whether in
writing
or not) of any person (whether party to the Agreement or not) relating
to
the subject matter of the Agreement other than as expressly set out
in the
Agreement.
|
|
25.6.2
|
The
Agreement constitutes the entire agreement and understanding of the
parties and supersedes any previous agreement between the parties
relating
to the subject matter of the
Agreement.
|
|
25.6.3
|
Each
of the parties acknowledges and agrees that in entering into the
Agreement
it does not rely on any Pre-Contractual
Statement.
|
|
25.6.4
|
Each
of the parties acknowledges and agrees that the only remedy available
to
it for breach of the Agreement shall be for breach of contract under
the
terms of the Agreement and it shall have no right of action against
any
other party in respect of any Pre-Contractual
Statement.
|
|
25.6.5
|
Nothing
in the Agreement shall operate to limit or exclude any liability
for
fraud.
|
|
Governing
law and jurisdiction
|
14
[*]
GATEWAY ASP RESELLER MAINTENANCE AGREEMENT
|
INTERPRETATION
|
|
In
this Maintenance Agreement, in addition to the definitions and rules
of
interpretation set out in the Licence, the following expressions
shall
have the following meanings:
|
|
Additional
Service
|
any
services other than the Support Service and the Updating Service
that the
Reseller and [*] may from time to time agree shall be supplied to
the
Reseller by [*] under the terms of this Maintenance
Agreement.
|
||
|
Error
|
any
fault or loss of functionality in the Software.
|
||
|
Legacy
Software
|
Software
that [*] designates as Legacy Software, pursuant to clause 33.
|
||
|
Permanent
Fix
|
a
fully-tested and quality-controlled repair or replacement of object
or
executable code in the Software that provides a substantial resolution
of
an Error.
|
||
|
Service
Levels
|
those
standards of performance that [*] shall endeavour to achieve in performing
the Support Service as set out in Schedule Two.
|
||
|
Severity
Level
|
the
category to which an Error is assigned by [*], as set out in Schedule
One.
|
||
|
Support
Charges
|
the
charges payable for the Support Services under this Maintenance Agreement,
being (where the context so requires) each or any of the
following:
in
each case as the same may be amended from time to time in accordance
with
the provisions of clause 14.4.
|
||
|
Support
Hours
|
8.00
am to 6.00 pm on any Business Day.
|
||
|
Support
Request
|
any
request from the Reseller for Support Services under this Maintenance
Agreement.
|
||
|
Support
Services
|
the
support service more particularly described in Schedule One which
is to be
provided by [*] to the Reseller pursuant to clause 29.
|
||
|
Supported
Software
|
has
the meaning set out in clause 27.
|
||
|
Temporary
Fix
|
a
repair or replacement of object or executable code in the Software
that
provides a substantial resolution of an Error but which is not intended
to
be a Permanent Fix or has not yet been subjected to full testing
or
quality control.
|
15
|
Updating
Service
|
the
service to be supplied by [*] to the Reseller pursuant to clause
30.
|
|
For
the avoidance of doubt, this Maintenance Agreement forms part of
the
Agreement (as defined in the Licence) and the provisions of the Licence
shall apply to this Maintenance Agreement so far as applicable, including
without limitation the provisions of clause 1.6 (order of precedence)
of
the Licence.
|
|
27
|
SUPPORTED
SOFTWARE
|
|
the
Software;
|
|
any
Modification which is acquired (or received free of charge under
Article
15
of
the Agreement) by the Reseller (whether under the Licence or this
Maintenance Agreement) during the course of the Licence and which
accordingly becomes part of the software defined as the “Software” under
the Licence; and
|
|
any
other software which [*] and Reseller agree should be Supported Software
for the purposes of this Maintenance Agreement.
|
|
SERVICES
|
|
[*]
shall supply and the Reseller shall take and pay for the following
Services:
|
|
the
Support Service;
|
|
such
of the Additional Services as are included from time to time within
an
order for Additional Services agreed between [*] and the Reseller
pursuant
to clause 31.
|
|
[*]
shall be entitled, on prior written notice to and agreement by the
Reseller, which agreement shall not be unreasonably withheld, to
make
changes to the Support Services, provided such changes do not have
a
material adverse affect on the Reseller’s business
operations.
|
|
[*]
shall have no obligation to provide the Support Services where faults
arise from:
|
|
misuse,
incorrect use of or damage to the
Software;
|
|
failure
to maintain the necessary environmental conditions for use of the
Software;
|
|
use
of the Software in combination with any software not provided or
approved
by [*], or any fault in any such software or Reseller’s
equipment;
|
|
relocation
or installation of the Software by any person other than [*] or a
person
acting under [*]’s instructions; or
|
|
any
breach of the Reseller’s obligations under this Maintenance
Agreement.
|
|
SUPPORT
SERVICES
|
|
The
Support Services shall be provided during the Support Hours and shall
comprise:
|
|
a
telephone help desk to provide first-line technical support to users
of
the Supported Software;
and
|
|
remote
diagnosis and, where possible, correction of
Errors
|
all
as
more particularly defined in the Schedule.
16
|
If
on-site support is required then this will be provided (and charged
for)
by [*] as an Additional Service.
|
|
Where
an Error of Severity Level 3 or Severity Level 4 is to be corrected
in a
forthcoming Maintenance Release, then for a reasonable period prior
to the
issue of such Maintenance Release [*] shall be entitled to decline
to
provide assistance in respect of that
Error.
|
|
[*]
shall use all reasonable endeavours to ensure that the Support Services
meet the Service Levels.
|
|
UPDATING
SERVICE
|
|
[*]
shall issue Maintenance Releases and other Modifications of the Software
as and when required in the absolute discretion of [*].
|
|
The
Reseller shall install the Maintenance Release
or Modification within one month, or at such time that it is practical
to
Reseller, of [*]’s notifying the Reseller that such Maintenance Release or
Modification is available for installation provided that such release
does
not affect or degrade the existing service or
features.
|
|
The
Updating Service shall include the supply to the Reseller of all
revisions
to the Documentation which are necessary in order to reflect any
Modification acquired by the Reseller.
|
|
For
the avoidance of doubt, the cost of the Updating Service including
without
limitation the delivery of any Maintenance Release or any other
Modification (in accordance with Article 15
of
the Agreement) is included in the Support Charges payable for the
Support
Service.
|
|
Once
any Modification has been installed by the Reseller, the Reseller
shall
not use the Software or any part of the Software which is superseded
by
that Modification in production without prior agreement of
[*].
|
|
30.6
|
Each
release provided to Reseller shall be accompanied by a test report,
including any performance and load testing performed by
[*].
|
|
ADDITIONAL
SERVICES
|
|
The
Reseller may from time to time request [*] to supply Additional
Services.
[*] shall use its reasonable endeavours to comply with the Reseller’s
request, but the Reseller acknowledges that [*]’s ability to supply the
Additional Services shall depend on the availability of appropriate
resources at the time in question.
|
|
Where
[*] agrees to provide Additional Services, such agreement shall be
embodied in an order for Additional Services. Each order for Additional
Services shall be made under, and shall incorporate, the terms of
this
Maintenance Agreement.
|
|
32
|
EXCLUSIONS
|
|
32.1
|
any
Error arising wholly or partly from a failure by the Reseller to
comply
with its obligations under clause 30.2;
|
|
32.2
|
any
Error arising wholly or partly from the Reseller, or anyone acting
on the
authority of the Reseller, having done any of the following without
[*]'s
approval:
|
|
32.2.1
|
amended
the Software;
|
|
32.2.2
|
used
the Software outside the terms of the
Licence
|
17
|
32.2.3
|
used
the Software for a purpose or in a context other than the purpose
or
context for which it was designed; or
|
|
32.2.4
|
used
the Software in combination with any other software not provided
or
approved in writing by [*]; or
|
|
32.3
|
any
error arising wholly or partly from any other failure of the Reseller
to
comply with its obligations under the Agreement (including without
limitation clause 35
below);
|
|
32.4
|
any
Error relating to Software that has become Legacy
Software.
|
|
33
|
LEGACY
SOFTWARE
|
|
33.1
|
If
[*] releases a New Version of the Software and the Reseller decides
not to
acquire and install such New Version,
then:
|
|
33.1.1
|
(subject
to clause 33.1.2)
that decision shall not give rise to any right for [*] to terminate
this
Maintenance Agreement
or
to reduce the Service Levels in respect of the Software;
and
|
|
33.1.2
|
at
any time after [*], if the Reseller has still yet to acquire and
install
that New Version, then [*] may by not less than [*] notice in writing
to
the Reseller designate the version of the Software then in use by
the
Reseller as Legacy Software, such notice to expire no sooner than
[*].
|
|
33.2
|
In
respect of any Software designated by [*] as Legacy
Software:
|
|
33.2.1
|
the
Support Services and the Updating Service shall cease upon that Software
becoming Legacy Software;
|
|
33.2.2
|
the
Support Charges shall cease to be payable by the Reseller;
and
|
|
33.2.3
|
[*]
may (subject to clause 31)
provide support in respect of the Legacy Software as Additional Services
on request from the Reseller, but [*] is under no obligation to do
so.
|
|
34
|
SUPPORT
CHARGES
|
|
In
consideration of the Support Services (excluding for this purpose
any
Additional Services), the Reseller shall pay the Support Charges
as set
out in the Term Sheet. The
Support Charges shall be paid within
[*].
|
|
Support
Charges for any New Version or Additional Service supplied by [*]
to the
Reseller shall be agreed
in writing prior to performance or supply by [*], via Reseller’s written
order for such New Version or such Additional Service (as the case
may
be).
|
|
The
Reseller shall pay [*] for work carried out by [*] in connection
with any
fault which is not covered by this Maintenance Agreement.
Any such work must have Reseller’s prior written approval before being
carried out.
|
|
The
Reseller shall reimburse any reasonable travel or subsistence expenses
incurred by [*] where such expenses are incurred wholly and exclusively
for the purpose of providing on-site support as part of the Support
Services, provided that any request for reimbursement is in the form
of a
proper invoice accompanied by appropriate
receipts.
|
|
RESELLER’S
RESPONSIBILITIES
|
|
35.1
|
Where
any Services are to be performed at any of the Reseller’s premises, the
Reseller shall provide adequate working space and office (including
telephone) facilities for use by [*]’s personnel and take reasonable care
to ensure their safety.
|
18
|
The
Reseller shall ensure that appropriate environmental conditions are
maintained for the Supported Software and shall take all reasonable
steps
to ensure that the Supported Software is operated in a proper manner
by
the Reseller's employees.
|
|
The
Reseller shall:
|
|
co-operate
with [*] in performing the Support Services and provide any assistance
or
information as may reasonably be required by
[*];
|
|
report
faults promptly to [*]; and
|
|
keep
full back-up copies of all of its customers data for a period of
[*].
|
|
WARRANTIES AND
LIABILITY
|
|
37
|
NON-SOLICITATION
|
|
TERMINATION
|
|
The
Reseller may terminate this Maintenance Agreement at any time on
[*]
notice in writing to [*].
|
|
38.2
|
Each
party shall have the right, without prejudice to its other rights
or
remedies, to terminate this Maintenance Agreement [*] by notice to
the
other if the other:
|
|
is
in material or persistent breach of any of its or its obligations
under
this Maintenance Agreement and either that breach is incapable of
remedy,
or that other party has failed to remedy that breach within [*] after
receiving written notice requiring it to do so;
or
|
|
is
unable to pay its debts (within the meaning of section 123 of the
Insolvency Act 1986), or becomes insolvent, or is subject to an order
or a
resolution for its liquidation, administration, winding-up or dissolution
(otherwise than for the purposes of a solvent amalgamation or
reconstruction), or has an administrative or other receiver, manager,
trustee, liquidator, administrator or similar officer appointed over
all
or any substantial part of its assets, or enters into or proposes
any
composition or arrangement with its creditors generally, or is subject
to
any analogous event or proceeding in any applicable
jurisdiction.
|
|
38.3
|
For
the avoidance of doubt:
|
|
38.3.1
|
this
Maintenance Agreement shall terminate automatically, without the
need for
notice, upon any termination of the Licence;
but
|
|
38.3.2
|
termination
of this Maintenance Agreement shall not in itself terminate the
Licence.
|
|
On
expiry or termination of this Maintenance
Agreement:
|
|
the
Reseller’s right to receive the Support Services shall cease
automatically;
|
19
|
all
amounts due from the Reseller under this Maintenance Agreement shall
be
paid immediately by the Reseller.
|
|
Any
termination of this Maintenance Agreement (howsoever occasioned)
shall not
affect any accrued rights or liabilities of either party, nor shall
it
affect the coming into force or the continuance in force of any provision
of this Maintenance Agreement which is expressly, or by implication,
intended to come into force or continue in force on or after that
termination.
|
20
SCHEDULE
ONE
Support
Services
SEVERITY
LEVELS
The
Parties shall (acting reasonably) assign a Severity Level to any Error reported
by the Reseller, according to the following categories of Severity
Level:
Severity
Level 1:
a
critical Error that prevents or severely restricts the operation and use of
the
Software, for which no immediate or reasonable (in Reseller’s sole discretion)
Workaround is available.
Severity
Level 2:
a
critical Error that prevents or severely restricts the operation and use of
the
Software, for which a reasonable Workaround is available.
Severity
Level 3:
means a
non-critical or minor Error that results in the Software not operating as
designed but that does not have a significant adverse effect on the operation
and use of the Software, and/or for which an acceptable Workaround is
available.
Severity
Level 4:
means a
minor Error or other problem with the Software of a cosmetic or trivial nature,
or a question or issue relating to documentation, general information, requests
for new or enhanced features or other request.
|
39
|
RESPONSE
|
|
39.1
|
Upon
receipt of a Support Request, [*]
shall:
|
|
39.1.1
|
assign
personnel to investigate the Error reported in that Support Request;
|
|
39.1.2
|
assign
an identifying name or number to that Error for tracking and reporting
purposes; and
|
|
39.1.3
|
notify
the Reseller’s Contract Manager of:
|
|
39.1.3.1
|
the
Severity Level assigned to that Error;
and
|
|
39.1.3.2
|
the
steps that [*] proposes to take to rectify the
Error.
|
|
39.2
|
[*]
shall use reasonable endeavours to carry out its obligations under
paragraph 2.1 within the target response timescale for the relevant
Severity Level, as set out in the Service
Levels.
|
|
40
|
RESOLUTION
|
|
40.1
|
[*]
shall use reasonable endeavours to provide either a Workaround,
a
Temporary Fix or a Permanent Fix of each Error within the target
resolution timescale for the applicable Severity Level, as set out
in the
Service Levels.
|
|
40.2
|
An
Error shall be deemed resolved when a Temporary Fix or a Permanent
Fix is
made available by [*] to the Reseller in respect of that
Error.
|
|
40.3
|
Where
an Error is resolved by means of a Temporary Fix, then [*] shall
use all
reasonable endeavours to replace that Temporary Fix with a Permanent
Fix
as soon as reasonably practicable, and in any event no later than
the next
Maintenance Release.
|
21
|
41
|
STATUS
REPORTS
|
|
41.1
|
Pending
resolution of each Error, [*] shall provide the Reseller with periodic
reports on the status of that Error, in accordance with the reporting
frequencies for each Severity Level set out in the Service
Levels.
|
|
41.2
|
In
addition to the periodic reports under paragraph 29.1,
[*] shall notify the Reseller as soon as reasonably practicable
of:
|
|
41.2.1
|
any
significant developments in resolving the Error;
or
|
|
41.2.2
|
any
indication that a Workaround, Temporary Fix or Permanent Fix will
not be
available within the applicable target resolution timescale for that
Error, with details of any revised estimated timescale for resolution;
or
|
|
41.2.3
|
where
an Error has been resolved by a Temporary Fix, any delay in the
anticipated timescale for replacing that Temporary Fix with a Permanent
Fix.
|
|
42
|
END-USER
SUPPORT
|
|
42.1
|
The
Reseller shall provide first-line technical support to End Users
by means
of a telephone help desk, email, user forum or such other means as
the
Reseller may consider appropriate.
|
|
42.2
|
The
Reseller shall use reasonable endeavours to resolve all End User
support
queries by means of its own first-line technical support provided
under
paragraph 42.1
above, including without limitation support requests relating
to:
|
|
42.2.1
|
functionality
and/or operation of the Software or of any interface by which the
End User
Synchronises Devices;
|
|
42.2.2
|
resolution
of known issues that do not require action by
[*];
|
|
42.2.3
|
customer
service issues between the Reseller and the End
User;
|
|
42.2.4
|
complaints,
compliments, feature requests or general observations by End Users
relating to the Software (though the Reseller may pass any such request
to
[*] as a Severity Level 4 Support Request);
or
|
|
42.2.5
|
irrelevant,
frivolous or malicious requests (which the Reseller shall not pass
on to
[*]).
|
|
42.3
|
The
Reseller shall ensure that it engages sufficient support staff of
sufficient training, skill and experience to provide the first-line
technical support described above.
|
|
42.4
|
[*]
shall not be required to provide any second- or third-line technical
support in respect of requests for support made by End Users, save
to the
extent any such request arises from an issue to which the Reseller
is
entitled to receive Support Services under this Agreement, in which
case
the Reseller shall submit that issue as a Support Request and the
provisions of paragraphs 0
to
41
above shall apply accordingly.
|
22
SCHEDULE
TWO
Service
Levels
|
Severity
|
Target
Response
|
Target
Resolution
|
Reporting
Frequency
|
|||||||
|
Severity
Level 1
|
[*]
|
|
|
[*]
|
|
|
[*]
|
|||
|
Severity
Level 2
|
[*]
|
|
|
[*]
|
|
|
[*]
|
|
||
|
Severity
Level 3
|
[*]
|
|
|
[*]
|
|
|
[*]
|
|
||
|
Severity
Level 4
|
[*]
|
|
|
[*]
|
|
|
[*]
|
|
||
23
Appendix
1
Roadmap
IMAP
functional Specification
[*]
Gateway Roadmap [*]
[*]
Gateway IMAP Support - Functional Specification
24
Appendix
2
Additional
Features
The
following functionality shall be delivered to IXI as mutually agreed to at
no
additional charge, but in no case later than [*];
|
1.
|
Changes
to the duplication algorithm
|
|
2.
|
Delivery
of the fix for HTTP chunked
|
|
3.
|
Pre-release
version of the IMAP functionality (release due [*]) to be made
available
|
25
Appendix
3
Additional
Developments
IQR
iXi Mandatory Requirements for OGO
IQR
iXi Reporting Requirements for OGO
IQR
iXi Monitoring Requirements for OGO
26
Appendix
4
Roles
and
Responsibilities
This
Appendix defines how [*] (S) and Reseller (R) will work in mutual co-operation
to ensure Reseller is provided with in-sight and input into [*]’s Gateway
product life-cycle.
For
avoidance of any doubt, all activities relating to delivery of Gateway product
and services will be at [*]’s sole discretion.
|
Task
Definition
|
Responsibility
Description
|
Resp.
|
||
|
Product
Management activities
|
· Involvement
in pre-roadmap discussions and input into the potential scope of
new
roadmap features
· Supply
of technical specifications of confirmed major new roadmap
developments
· Input,
including high level descriptions, of any new features sought, including
priorities
· Formal
response to pre-roadmap proposals
|
S
S
R
R
|
||
|
Development
activities
|
· Delivery
of Release candidates to enable early testing and feedback (Alpha
releases
maybe made available at [*]’s discretion)
· Supply
of a minimum of [*]
sample devices to be used to support development testing
· Feedback
on Release candidates, to include quality, performance and identified
issues
|
S
X
X
|
||
|
Change
Requests
|
· The
responsibility includes the management of Reseller’s Change Request
(CR):
· Management
of CR on quarterly basis
· Decision
basis for approval or non-approval of CR and eventual requirements
(investment or other) for reinvestigating a non-approval
decision
· Technical
description for approved CR
· Release
date for approved CR
|
S/R
|
||
|
Integration
testing
|
· Delivery
of load testing data of major new features predicated, to significantly
effect Server performance
· Responsibility
for system testing of any Gateway product integration
|
S/R
S/R
|
||
|
Release
Material and Documentation
|
· Provision
of necessary product release material and documentation
· Product
Architecture
· Product
User Manuals
· Product
Installation Guide
· Product
Interface Documentation
|
S
|
27
|
Handover
to support
|
· Upon
release of a new product version a hand-over of the product will
comprise:
· A
handover meeting to hand over the new release and set up or update
communication interfaces and routines.
· Training,
if required, on the new product release
· Support
documentation; including but not limited to troubleshooting guidelines,
product manuals, support and maintenance procedures
|
S
|
28
