SOFTWARE LICENSE CONTRACT BETWEEN BBVA PENSIONES CHILE S.A. AND ADMINISTRADORA DE FONDOS DE PENSIONES PROVIDA S.A
Exhibit
4.2
SOFTWARE
LICENSE CONTRACT BETWEEN BBVA PENSIONES CHILE S.A. AND
ADMINISTRADORA
DE FONDOS DE PENSIONES PROVIDA S.A
In
Santiago, on December 1, 2005
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I.
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BBVA
PENSIONES CHILE S.A. (hereinafter called the “Grantor”), a company
incorporated according to Chilean laws, with legal residence at 000, Xxxxx
xx Xxxxxxxx Xxx., Xxxxxxxxxxx, Xxxxxxxx, Xxxxx, Tax Identification (RUT)
No. 96,757,820-7, APPEARS AS PARTY OF THE FIRST
PART.
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The
Grantor is represented by Xx. Xxxxxxx Xxxxxxx Xxxxxxx, Chilean, married,
business administrator, legally of age, bearer of Chilean national identity card
No. 5,894,308-8, and for the purposes hereof, the same legal address as the
company he represents.
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II.
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ADMINISTRADORA
DE FONDOS DE PENSIONES PROVIDA S.A. (hereinafter called the “Licensee”), a company
incorporated according to Chilean laws, with legal residence at 000, Xxxxx
xx Xxxxxxxx Xxx., 00xx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx, Tax Identification (RUT)
No. 98,000,400-7, APPEARS AS PARTY OF THE SECOND
PART.
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The
Licensee is represented by Messrs. Xxxxx Xxxxx Chijner, Peruvian, married,
business administrator, bearer of Chilean foreign identity card
No. 21,828,473-6, and Xxxxxx Xxxxxxxxx Xxxxxxxxx, Chilean, married, lawyer,
bearer of Chilean national identity card No. 8,881,705-2, both legally of
age and domiciled for the purposes hereof as the company they
represent.
The
appearing representatives in turn state that their respective powers have not
been revoked, suspended or restricted, and that the acting capacity of their
respective represented companies has not changed. Thus, acknowledging their
sufficient capacity to enter into this agreement, they state the
following:
WHEREAS:
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I.
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The
Grantor owns the Intellectual Property Rights on the software described in
Appendix 1
(hereinafter the “Software”). For the
purposes hereof, “Intellectual Property
Rights” shall be construed as ownership or trade-related aspects
regarding exploitation of the Software, its modifications and
customizations, as well as directives for using or running the Software
(hereinafter called the “Usage
Manual”).
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II.
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The
Licensee is interested in obtaining a license over the foregoing Software
Intellectual Property Rights, including the right to modify and customize
it to local technical requirements, in order to process information
according to its operational, business and legal compliance
needs.
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THEREFORE, both parties concur
in entering into this software license contract (hereinafter called the “Contract”), whereby they
assent to the following terms and conditions:
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1.
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LICENSCE OBJECTIVE AND
TYPE
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1.1
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Objective:
The Grantor hereby grants the license or right to use the Software and its
Usage Manual to the Licensee, who in turn accepts it, for application on
its computer systems and with the sole purpose described in the foregoing
Recital II (hereinafter called the “License”).
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1
Except
for the rights expressly excluded in the following Sub-clause 1.2, the
License comprises of assignment to the Licensee of all Intellectual Property
Rights on the Software and its Usage Manual, including:
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(i)
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The
right to fully or partially copy the source codes or programs, by any
means and in any manner, whether provisionally or permanently, including
load, presentation, run, transmission and/or storage thereof, making as
many backup copies as deemed necessary, and partially or totally
decompiling the Software, and
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(ii)
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Translating,
adapting, arranging or in any way transforming the foregoing programs,
copying the results of such actions, including the right to make technical
customizations to meet local needs or
requirements.
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The
Licensee may use or in any way exploit any Intellectual Property Right
hereunder, whether directly or through subcontracted third parties, including
outsourcing, to the extent needed for the provision of such services to the
Licensee.
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1.2
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Type:
The License is non-exclusive and valid anywhere in the world, with the
Licensee not being entitled to grant third parties the Software use,
sublicenses or authorizations, whether exclusive or not, without the
written consent of the Grantor.
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1.3
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Evolutionary
Developments: The Grantor does not undertake any obligations to
produce new or enhanced Software versions. If it did, it shall be through
its AFP (Pension-Fund Administrator) Maintenance Center (“CMA”), which
shall be responsible for both evolutionary/regulatory development and
corrective maintenance.
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In this
case and whenever the Grantor has new or enhanced Software versions, no new
license shall be necessary and any such versions shall be automatically
comprised herein. In the latter case, the Licensee must pay to the CMA the new
development price, equivalent to actual man/hour unit-rate costs in
dollars.
The
Software corrective maintenance shall be governed by the provisions of a
separate document executed by the parties.
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2.
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INSTALLATION AND
DELIVERY OF USAGE MANUAL
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2.1
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Installation:
The Grantor commits to install the Software in the equipment specified by
the Licensee. The installation shall be deemed complete when the Software
can be correctly used in the Licensee’s computer systems for the purposes
stated herein.
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Any
developments required to adapt or install the Software in the Licensee’s systems
shall be deemed comprised in the price specified in Clause 4 hereof, but
any transportation expenses of the Grant or, its personnel or that of service
providers to the Licensee’s premises to perform such installation shall be
invoiced separately.
Upon
completion of the installation, the parties shall sign off a document of
acceptance by the Licensee.
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2.2
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Usage
Manual: The Grantor shall deliver soft copies of the Usage Manual
to the Licensee upon installation completion. The following contents shall
be included in the Usage Manual, as a
minimum:
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(i)
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Source
codes, the modification right of which is licensed
herein;
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(ii)
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Functional
design of the various Software
modules;
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2
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(iii)
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User
manual of the various Software
modules;
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(iv)
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Operation
manual of the Software;
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(v)
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Data
model (general and detailed), and
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(vi)
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Component
details (tables, folders, etc.).
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3.
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EFFECTIVE
TERM
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The
License hereunder is indefinitely granted, and if a term was mandatory, then for
as long as legally permitted.
Notwithstanding,
this Contract shall be terminated, hence the License revoked, in the following
cases:
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(i)
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By
the Licensee at any time giving prior reliable notice to the other party
of its decision to terminate the Contract at least twelve (12) months
in advance of the effective termination date, without any compensation
right vested for any of the
parties.
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(ii)
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By
the Grantor if the Licensee separated from the group of companies led by
Banco Bilbao Vizcaya Argentaria, S.A., or of which the latter is a member.
For the purposes hereof, the Grantor shall be deemed to be part of such
group in any of the cases provided in Article 4th* of the Spanish Law on
the Stock Market (LMV) No. 24/1988, enacted July 28, any amendments
or replacing regulation thereof. In this case, the Contract shall be
terminated by prior reliable notice of the Grantor to the Licensee,
stating its decision to terminate the Contract effective upon twelve
(12) months of such notice.
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In the
latter case, the Licensee may demand compensation from the Granter as provided
in Appendix II
hereof according to the Contract lapsed effective period, from execution to
termination, without any further compensation right vesting
thereto.
Upon
termination hereof as provided herein, the Licensee shall abstain from using the
Software hereunder, delete any backup copies from its systems and return to the
Grantor the copies of the Usage Manual with any other Software documentation
that it may have at the time.
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4.
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PRICE, PAYMENT AND
TAXES
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4.1 License
Price and Payment: As consideration for granting the license and all
other obligations herein undertaken by the Grantor (excluding the Software
installation), the Licensee shall pay the Grantor the amounts specified in Appendix III
hereof, as provided therein.
4.2 Price of
New Versions (Evolutionary Development): If the CMA produced new or
improved Software versions, no new license shall be necessary and any such
versions shall be automatically comprised herein, as provided in
sub-clause 1.3.
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4.3 Taxes:
The Licensee shall bear all existing and future taxes hereunder. Consequently,
should any applicable law require encumbering, deducting or withholding any
amounts for tax purposes, the price to be paid by the Licensee shall be
increased accordingly, so that the amount received by the Grantor remains
exactly as provided in Appendix III
hereof.
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5.
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GUARANTEES
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5.1
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The
Grantor expressly assures the
Licensee:
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(i)
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That
it owns the Software Intellectual Property Rights, including source and
executable programs thereof, and that no legal or contractual restriction
exists under any jurisdiction preventing its full or partial transfer,
assignment or any other arrangement as provided herein, nor any full or
partial transfer, assignment or other arrangement of the source and
executable programs that form the
Software;
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(ii)
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That
the Intellectual Property Rights hereunder are free of any burden,
encumbrance or charge;
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(iii)
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That
the Software use provided herein does not infringe any legal provisions or
third-party rights, nor is it in any way unfair competition,
and
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(iv)
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That
the Software features and services are suitable for the intended use
thereof stated in Recital II.
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The
foregoing guarantees solely relate to the Software licensed by the Grantor at
this time, and therefore, shall not extend to any modifications or alterations
performed by the Licensee.
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5.2
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The
Grantor commits to compensate the Licensee for any loss or damage
resulting from any infringement of the guarantees provided in the
foregoing sub-clause, number 5.1, including all expenses and costs
paid by the Licensee to the Grantor or disbursed defending any third-party
claim (for instance: expert studies, legal counsel fees, court expenses,
etc.).
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5.3
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The
Grantor promises to cooperate with the Licensee in defending its interests
should any third party, judicial or government authority start any
proceedings against the latter, as a result of an infringement of the
guarantees herein. In any case, the Licensee shall decide, at its sole
discretion, whether to comply with the claim or oppose it, acting
therefore in good faith.
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6.
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CONTRACT
ADMINISTRATION
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The
parties appoint the following liaison persons to resolve any matter regarding
the licensed Software installation or operation:
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(i)
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For
the Grantor:
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| Xxxxxxxxx Xxxxx |
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(ii)
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For
the Beneficiary:
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| Xxxx Xxxxxx Xxxxx Madriaza |
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7.
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CONFIDENTIALITY
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Any
information furnished to one party by the other shall be considered
confidential, regardless of the support media and whether it relates to the
Software or hereto. Any public domain information as of the date hereof is
excluded.
Neither
party may disclose such information to any third party without consent from the
other party, unless such disclosure is (i) essential to abide by law or
(ii) required by a judicial or government authority.
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8.
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MISCELLANEOUS
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8.1
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Representations
and Guarantees of the Parties: Each party states and assures the
other:
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(i)
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That
it is duly incorporated society according to its national laws, legally
capable of granting this License and fulfilling this Contract, as well as
of exercising the rights and meeting the obligations hereunder, and that
it has completed all processing and met all the requirements needed for
the grant and fulfillment hereof;
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(ii)
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That
the grant and fulfillment hereof does not infringe any current legal
provision, their by-laws, nor any other agreement or commitment entered or
undertaken by each party;
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(iii)
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That
the individuals executing this Contract are legally empowered and mandated
to bind the party that they respectively represent,
and
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(iv)
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That
the obligations undertaken by each party herein are fully effective,
binding and enforceable, without requiring any further authorizations,
approvals, formalities, records or registrations by anyone or any
authority.
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8.2
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Sole
Document: All the Grantor’s and Licensee’s rights and obligations
are contained in this Contract and its appendices, which jointly form only
one regulating document between both parties that replaces and revokes any
previous agreement or document regarding the Software
License.
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8.3
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Partial
Nullity: Should any provision herein be declared null, the
remaining ones shall prevail in their own terms. If the nullity involved
an essential part hereof, the parties shall negotiate to find a reasonable
good-faith solution always considering the spirit hereof and the purpose
of the cancelled provision.
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8.4
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No
Other Beneficiaries: Unless otherwise expressly stated herein, no
provision hereof may be construed as granting any rights or resorts to any
non-party, except for legal successors of each
party.
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8.5
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Independence:
This Contract is not intended to establish any mandate or entrustment
relationship of any kind between the parties. None thereof shall be
considered as representative of the
other.
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8.6
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Assignment:
The Grantor may fully or partially assign this Contract to an organization
member of the group of companies led by Banco Bilbao Vizcaya Argentaria,
S.A., or of which the latter is a member, pursuant to Clause 3
hereof, by simply giving written notice to the
Licensee.
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On the
other hand, the Licensee may not partly or fully assign this Contract to any
third party, whether a member of the group of companies led by Banco Bilbao
Vizcaya Argentaria, S.A. or not, without the prior express and reliably given
consent of the Grantor.
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8.7
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Breach:
Each party shall be liable for compensating the other for any direct loss
or damage resulting from any breach hereof. Indirect damages, loss of
profit and non-pecuniary loss are not
compensable.
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9.
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COMMUNICATIONS
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9.1
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All
requests, notifications, notices and generally any communications between
the parties hereto shall be deemed duly given when transmitted by fax and
addressed to their respectively specified addresses and numbers, without
prejudice to the subsequent ratification by letters signed by authorized
individuals with regard to the communications themselves or acknowledging
receipt thereof.
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5
Original
faxed documents showing receipt at the corresponding fax numbers are sufficient
proof of notice.
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9.2
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The
following are the parties’ respective addresses, telephone and fax
numbers:
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BBVA
PENSIONES CHILE
Xx. Xxxxx
xx Xxxxxxxx 000, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx
Phone:
(00-0) 000-0000
Fax:
(00-0) 000-0000
A.F.P.
PROVIDA S.A.
Xx. Xxxxx
xx Xxxxxxxx 000, Xxxx 00, Xxxxxxxxxxx, Xxxxxxxx, Xxxxx
Phone:
(00-0) 000-0000
Fax:
(00-0) 000-0000
Any
change of address, phone or fax number must be reliably notified in writing to
the other party.
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10.
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APPLICABLE LAW AND
JURISDICTION
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10.1
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Applicable
Law: This Contract shall be construed and fulfilled according to
its own terms and conditions, and shall be governed by Chilean law, as
applicable.
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10.2
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Jurisdiction:
Any difficulty, doubt, issue or dispute that may arise between the parties
regarding the application, interpretation, fulfillment, performance,
effective period, termination, cancellation, nullity or validity hereof,
or any other related matter, shall be submitted for consideration and
resolution to a joint arbitrator, namely fact arbitrator for the
proceedings, whose ruling in law abidance may be ordinarily and
extraordinarily appealed, including
complaints.
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The
arbitrator shall be appointed by mutual agreement of the parties, failing which,
the Santiago Courts of Record shall appoint an individual having taught Civil or
Commercial Law at the University of Chile or Chilean Catholic University for at
least five years.
In
acceptance of the foregoing, the parties execute this agreement in duplicate, on
the date and in the place stated in the preamble hereof.
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BBVA
PENSIONES CHILE S.A.
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ADMINISTRADORA
DE
FONDOS
DE PENSIONES
PROVIDA
S.A.
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Xxxxxxx
Xxxxxxx Lemarie
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Xxxxx
Xxxxx Chijner
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Xxxxxx
Xxxxxxxxx Xxxxxxxxx
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APPENDIX I
DESCRIPTION OF THE LICENSED
SOFTWARE
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APPENDIX II
COMPENSATIONS IN CASE OF
AGREEMENT TERMINATION BY THE GRANTOR FOR THE LICENSEE SEPARATION FROM THE BBVA
GROUP
If the
Licensee were separated from the group of companies led by Banco Bilbao Vizcaya
Argentaria, S.A., of which the latter is a member, as provided in Clause 3
of the License Contract (the “Contract”), and the Grantor exercised its right to
terminate the Contract pursuant thereto, the Licensee shall be entitled to
compensation by the Grantor according to the number of effective years. The
following distinctions apply to compensation for
termination:
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1.
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In
case of termination during the first two years of the Contract effective
date, including the twelve months upon separation from the BBVA Group:
100% of the License Price shall be
compensated.
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2.
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In
case of termination during the third year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 80% of
the License Price shall be
compensated.
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3.
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In
case of termination during the fourth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 60% of
the License Price shall be
compensated.
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4.
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In
case of termination during the fifth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 40% of
the License Price shall be
compensated.
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5.
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In
case of termination during the sixth year of the Contract effective date,
including the twelve months upon separation from the BBVA Group: 20% of
the License Price shall be
compensated.
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6.
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In
case of termination over six years after the Contract effective date,
including the twelve months upon separation from the BBVA Group: there
shall be no compensation.
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APPENDIX III
PRICE PAYABLE BY THE
LICENSEE
The Price
to be paid by the Licensee to the Grantor in the national currency, namely peso,
is equivalent of seven million, two-hundred and fifty-nine thousand Euros
(€ 7,259,000), after taxes. This amount shall be paid against receipt of
the pertinent invoice, to be issued during the month of December
2005.
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