SOFTWARE LICENCE AGREEMENT
THIS AGREEMENT is made the 18th day of January, 2000;
B E T W E E N :
1. WEB2U Limited a Company incorporated under the laws of United Kingdom having
its registered office at Elder House, 000-000 Xxxxx Xxxx, Xxxxxx Xxxxxx, XX0
0XX, Xxxxxxx (which expression shall unless repugnant to the context or
meaning thereof mean and include its successors and assigns ('WEB2U') of One
part and
2. XxxxxXxx.xxx Limited a company registered under the Companies Act, 1956
having its registered office is at Mathurdas Mill Compound Ground Floor SB
Marg Lower Parel Bombay 400013 ('JADOO') of the Other part;
WHEREAS
(a) Subject to all the applicable corporate and statutory approvals, WEB2U
agrees to grant a license to JADOO on an exclusive basis to sub license the
software for use with the Product in the Territory subject to clause 3.2
herein below;
(b) WEB2U is a leading manufacture of software products set and as such owner of
the intellectual property rights in respect thereof;
(c) The Parties have agreed to enter into the commitments of this Agreement and
regulate their rights in the manner appearing below.
IT IS AGREED as follows :-
1. Interpretation
1.1 "Intellectual Property Rights" (IPR'S) shall mean industrial and other
rights in the Software including but not limited to copyright, confidential
information, patents and the right to apply for patents, protected designs
(whether registered or not) semi conductor and topography rights and
technical know-how.
1.2 "ISP Chip Set" shall mean the WEB2U propriety Internet Services Processor
as described in the ISP Chip Set reference manual.
1.3 Product" shall mean the WEB2U proprietary Internet Access Device
incorporating the ISP Chip Set
1.4 "Royalty" shall mean the Royalty provided for in clause 6.1 hereof
1.5 "Software" shall mean WEB2U proprietary Internet Access Devise software
including Browser, e-mail, printer driver, enhancements and operating
system
1.6 "Technical Information" shall mean technical knowledge and data
specifications of the software and other information of a secret and
confidential nature in existence at the date of this Agreement which are
necessary to enable JADOO to use the software properly and efficiently
1.7 'Territory' means the territories of India Sri Lanka Bangladesh and Nepal
and such other territories as may be agreed in writing by the parties from
time to time
1.8 "The Trust and Confidence Agreement" shall mean the trust and confidence
agreement to be entered into by JADOO relevant contractors pursuant to clause
3.5 hereinbelow and in the form set out in Schedule A hereto
1.9 "Product Know-How Agreement" shall mean the Product Know-how Agreement of
even date which grants JADOO the Know-how to manufacture the Product
2. Commencement Date and Term
2.1 This agreement shall be effective only upon execution by the authorised
representative of both Parties on the date first above shown
("Commencement Date").
2.2. The term of this Agreement shall be for an initial period of five years
from the Commencement Date and shall automatically renew for further
periods of one year unless three months prior notice in writing of
termination is given by either Party.
3. Grant of License
3.1. Subject to all applicable corporate and statutory approvals, WEB2U
hereby grants Jadoo an exclusive license to sub-license the software
for use with the Product during the continuance of this Agreement in
the Territory.
3.2. For so long as JADOO shall demonstrate the ability to produce a minimum
of [ ** ] units of the Product in the first two years of the Term the
License shall remain exclusive in the Territory
3.2.1 In the event of JADOO manifestly failing to demonstrate the
ability to achieve production of [ ** ] units during the first
two years of the Term or having failed to achieve production of
[ ** ] units during the first two years of the Term the License
shall at the option of WEB2U become non exclusive
3.2.2 To maintain exclusivity in subsequent years of the Term JADOO
will have to demonstrate the ability to produce [** ] units in
each year of the Term
3.3 Where JADOO has failed in any period to achieve the volumes to retain
exclusivity set out in 3.2 above JADOO shall be given a six month cure
period to remedy any shortfall
3.4 Engagement by Jadoo of sub-contractors and agents who will have access
to Technical Information shall be subject to the prior approval of
WEB2U. Such approval shall not be unreasonably withheld provided the
provisions of Clauses 1.8 and 3.5 herein are complied with.
3.5 Jadoo shall ensure that all sub-contractors and agents who will have
access to Technical Information shall enter into direct covenants of
confidentiality with WEB2U in the form of the Confidentiality and Trust
Agreement set out in Schedule A hereto.
** The omitted information is confidential and has been filed separately with
the Securities and Exchange Commission.
4. Improvements
4.1. It is anticipated that WEB2U will continue to develop the software.
Improvements arising from the developments carried on by WEB2U shall
remain exclusive property of WEB2U.
4.2. The Software shall be the most current version from time to time but
shall not include features representing custom enhancements where such
enhancements are proprietary to any specific WEB2U customer
5. Technical Support
5.1 WEB2U shall provide technical support in relation to the Technical
Information free of charge provided that JADOO shall treat such
information as trade secrets and shall not disclose such information to
any third party without any prior written consent of WEB2U or pursuant
to the terms of clause 3.4 above.
5.2 Upon WEB2U's request, JADOO, its employees, officers, directors,
Contractors, Sub-Contractors, representatives or other agents who may
have obtained the Technical Information in the course of their
employment and/or business with JADOO shall return to WEB2U all of the
Technical Information provided with all copies or duplicate
documentation on the expiry or termination date of this Agreement.
6. Royalty
JADOO shall pay to WEB2U royalty in respect of the Software in the
following manner for each unit of the Product manufactured in the
Territory:
Up to first [ ** ] units of the Product [ ** ] per unit
Beyond [ ** ] units [ ** ] per unit
7. Interest
7.1. All sums due from either of the Parties to the other which are not paid
on the due date shall bear interest from day to day at the annual rate
of 1.5% (one point five percent) over the current National Westminster
Bank Plc daily base rate with a minimum of 7% (seven percent) per
annum.
8. Approvals/Permissions
It is understood and agreed between the Parties herein that all the payments
including Royalty/License fee and other payments are subject to the
applicable approvals/ permissions from concerned authorities including
Reserve Bank of India.
9. Indemnities
9.1. WEB2U shall indemnify and hold harmless JADOO against any claims costs
and expenses that JADOO may incur in connection with any claim of
infringement of any
** The omitted information is confidential and has been filed separately with
the Securities and Exchange Commission.
third party IPR's caused by or arising out of the manufacture,
importation, possession, sale or use of the Product and in respect of
claims arising out of any defect in the Software. This indemnity shall
include all costs and expenses of refuting defending or settling any
claims as well as any damage or compensation ordered to any third party
by any Court.
9.2 JADOO shall similarly indemnify and hold harmless WEB2U against any
claims costs and expenses that WEB2U may incur in connection with any
claim of infringement of any third party IPR's caused by or arising out
of negligence or misuse of the Software and/or the Product by JADOO or
any person. This indemnity shall include all costs and expenses of
refuting defending or settling any claims as well as any damage or
compensation ordered to any third party by any Court.
10. Termination
10.1. Notwithstanding the provisions of clause 2, either party may by notice
in writing to the other terminate this Agreement immediately upon the
happening of any one of the following events;
10.1.1. If either party goes into liquidation either compulsorily or
voluntarily or if a receiver or administrator is appointed in
respect of the whole or any part of its assets or makes an
assignment for the benefit or composition with its creditors
generally or threatens to do these things or any judgment or
administration order is made against it
10.1.2. If JADOO attempts or purports to assign or transfer this
Agreement without WEB2U's prior written consent.
10.1.3. If either Party's ability to carry out its obligations
hereunder is prevented or substantially interfered with for
any reason whatsoever (whether or not within the control of
that Party) including without limitation by reason of any
regulation, law, decree or any act of state or other action of
a government.
10.1.4. If a party is in material breach of any obligation under this
agreement (the defaulting party) and the other party
(notifying party) gives written notice to the defaulting party
identifying the breach and the defaulting party does not
within 30 days of the date of such notice remedy the breach
11. Termination Consequences
Upon expiry of the term and the termination under clause 9 herein of
this agreement;
(i) All licenses under this agreement, including the software
license right to process technical information shall cease.
(ii) JADOO shall immediately cease the use of all technical
information, Software and IPR's granted to it under this
agreement and immediately return and cause to return all
technical data, information and other materials in respect
thereof supplied by WEB2U to JADOO
12. Limitation of Liabilities
12.1 Force Majeure. Neither party shall be liable to the other for any
delay, loss, damage or injury caused by acts of God, governmental order
or regulation, restraining imposed by governmental action, national
strikes, commotion, riots, war, war like situations, hostilities,
governmental disposal, mobilisation, blockage, embargo, custody,
revolution, fire, earthquake, tornado, explosion, storm, flood or for
any other cause beyond its reasonable control (hereinafter referred to
as Force Majeure).
12.2 Notification of such delay, loss, damage or injury arising solely from
circumstances attributable to the Force Majeure shall be given as soon
as possible and followed in writing to the other party within seven
days of the occurrence of such an event.
13 Severability
If any section or subsection of this Agreement is found by competent
authority to be void, voidable, illegal or otherwise unenforceable, the
remaining provisions of this Agreement shall remain in full force and
effect.
14 No agency or Partnership.
The Parties are not partners or joint venturers nor is one Party entitled to
act as the agent of the other (unless specifically authorised in writing)
nor shall either Party be liable in respect of any representation, act or
omission of the other Party whatever nature.
15 No Modification.
This Agreement may not be modified except by an instrument in writing signed
by both of the Parties of their duly authorised representatives.
16 Survival of Terms.
The warranties, indemnities and obligations of confidentiality contained in
this Agreement and the provision for payment of any accounting in respect of
continuing fees and other sums due to either party under this Agreement
shall survive the termination or expiry of this Agreement.
17 Arbitration.
Any question or difference which may arise concerning the construction
meaning or effect of this agreement or concerning the rights and liabilities
of the parties or any other matter arising out of or in connection with this
agreement shall be referred to a single arbitrator in London to be agreed
between the parties. Failing such agreement within 30 days of the request by
one party to the other that the matter be referred to arbitration in
accordance with this clause such reference shall be to the to an arbitrator
appointed by the President for the time being of the Law Society, London.
The Arbitrator shall neither be an Indian or UK national. The decision of
the arbitrator shall be binding upon the parties. Any reference under this
clause shall be deemed to be a reference to arbitration within the meaning
of the Arbitration Xxx 0000 (UK)
18 Governing Law.
18.1 This Agreement shall be governed in accordance with the laws of England
and Wales.
18.2 Where either Party has any complaint of the other under this Agreement
it may at its option commence proceedings in any Court of competent
jurisdiction in the Courts of England and Wales
19 Notices
All notices given pursuant to this agreement shall be sent by confirmed
facsimile transmission, prepaid registered mail or courier with signed
receipt to the addresses setout below or to such other addresses as a party
may from time to time notify the other in accordance with the provision of
this clause.
FOR WEB2U
Mr. Xxxxxx Xxxxx
Elder House, 000-000, Xxxxx Xxxx
Xxxxxx Xxxxxx, XX0 ILR
United Kingdom
with a copy to:
Xx. Xxxxxxx X. Xxxxxxx
Company Secretary
c/o Xxxx Xxxxx Xxxx Simey
Arlbee House, Grey Xxxxxx Xxxx
Xxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
FOR JADOO
Xx. Xxxxxxx Xxxxxx
Mathurdas Mill Compound
Ground Floor,
SB Xxxx
Lower Parcel
Mumbai 400013
Signed ...............................AUTHORISED REPRESENTATIVE OF Web2u Limited
Signed ............................... AUTHORISED REPRESENTATIVE of XxxxxXxx.xxx
Limited
SCHEDULE A
TRUST AND CONFIDENCE AGREEMENT
This Trust and Confidence Agreement is made the 18th day of January 0000
X X X X X X N :
WEB2U Limited whose registered office is at Elder House 000-000 Xxxxx Xxxx,
Xxxxxx Xxxxxx, XX0 0XX, Xxxxxx Xxxxxxx ("WEB2U")
XxxxxXxx.xxx Limited a company organised and existing under the laws of
India, whose registered office is at Mathurdas Mill Compound Ground Floor SB
Marg Lower Parel Bombay 4000013 ('the Recipient')
RECITALS
(a) WEB2U has developed a product for accessing the Internet incorporating its
Proprietary Internet Services Processor, Chip Set, and Software ("the
Product") and is the owner of confidential information relating to the
Product and of intellectual property rights therein.
(b) To enable the Recipient to evaluate the Product with a view to taking a
license to either :
(i) component supply, or;
(ii) manufacture, and/or;
(iii) sell the same WEB2U is willing to disclose information relating to the
Product to the Recipient under conditions of confidentiality.
OPERATIVE PROVISIONS
1. Interpretation
1.1. For the purposes of this Agreement Proprietary Information means any
and all information which is now or at any time hereafter in the
possession of WEB2U and which relates to the Product, including without
limitation data, know-how, formula, processes, designs, photographs,
drawings, specifications, software programs and samples and any other
material bearing or incorporating any information relating to the
Product.
2. Undertakings of the Recipient
2.1. In consideration of WEB2U disclosing informatio relating to the Product
to the Recipient, the Recipient hereby undertakes :
2.1.1. to use all Proprietary Information so disclosed exclusively for
the purpose of evaluation or any license granted in respect of
the Product, and;
2.1.2. to maintain confidential all Proprietary Information that it may
acquire in any manner; and it will accordingly not directly or
indirectly use or disclose any of the Proprietary Information in
whole or in part save for the purposes of and in accordance with
this Agreement.
3. Exceptions
3.1. The foregoing restrictions on the Recipient shall not apply to any
Proprietary Information which :
3.1.1. the Recipient can prove by documentary evidence produced to
WEB2U within 28 days of disclosure that such Proprietary
Information was already in the possession of the Recipient and
at its free disposal before the disclosure to the Recipient;
3.1.2. is hereafter disclosed to the Recipien without any obligations
of confidence by a third party who has not derived it directly
or indirectly from WEB2U;
3.1.3. is or becomes generally available to the public in printed
publications in general circulation through no act or default
on the part of the Recipient or the Recipient's agents or
employees.
4. Inclusion
4.1. Without prejudice to the generality of clause 3.1.3 information shall
not be deemed to be generally available to the public by reason only
that it is known to only a few of those people to whom it might be of
commercial interest, and a combination of two or more portions of the
Proprietary Information shall not be deemed to be generally available
to the public by reason only of each separation being so available.
5. Confidentiality measures
5.1. To secure the confidentiality attaching to the Proprietary Information
the Recipient shall :
5.1.1. keep separate all Proprietary Information and all information
generated by the Recipient based thereon from all documents
and other records of the Recipient;
5.1.2. keep all documents and other material bearing or incorporating
any of the Proprietary Information at the usual place of
business of the Recipient, namely
5.1.3. not use, reproduce, transform, or stor any of the Proprietary
Information in any externally accessible computer or
electronic information retrieval system or transmit it in any
form or by any means whatsoever outside of its usual place of
business;
5.1.4. allow access to the Proprietary Information exclusively to
those employees of the Recipient who have reasonable need to
see and use it for the purposes of its evaluation by the
Recipient and shall inform each of the said employees of the
confidential nature of the Proprietary Information and of the
obligations on the Recipient in respect thereof;
5.1.5. wherever reasonably practicable obtain a written statement
from each of its employees having access to the Proprietary
Information undertaking to maintain the same confidential and
shall take such steps as may be reasonably desirable to
enforce such obligations.
5.1.6. make copies of the Proprietary Information only to the extent
that the same is strictly required for the purposes of any
license granted to the Recipient;
5.1.7. on request of WEB2U made at any time shall deliver up to WEB2U
all documents and other material in the possession, custody or
control of the Recipient that bear or incorporate any part of
the Proprietary Information.
6. Governing Law
6.1 Where either Party has any complaint of the other under this Agreement
it may at its option commence proceedings in any Court of competent
jurisdiction in England and Wales
SIGNED /s/ Xxxxxxx X. Xxxxxxx
.........................
WEB2U LIMITED
SIGNED [illegible signature]
.........................
XxxxxXxx.xxx Limited
