________________________________________________________________________________
Exhibit 10.3 CD-U Agreement between iOra Limited, IQROM Communications, Inc.
and IQROM Limited dated June 23, 2000
DATED 23rd JUNE 2000
(1) IORA LIMITED
and
(2) IQROM COMMUNICATIONS INC & IQROM LIMITED
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CD-U AGREEMENT
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________________________________________________________________________________
THIS AGREEMENT is made the 23rd day of June 2000
BETWEEN:
(1) IORA LIMITED (Company No.3445693) whose registered office is situated at 1a
Intec 0, Xxxxx Xxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX
(the "Supplier");
(2) IQROM COMMUNICATIONS INC (on its own behalf and, for the purposes of and
subject to Clause 2.4, on behalf of IQROM LIMITED) whose principal office
is situated at 0000 Xxxxxx Xxxx Xx, Xxxxx 000-X, Xxxxxxx, Xxxxxxx, 00000
("Distributor").
WHEREAS
(A) The Distributor and Supplier have previously entered into:
(i) an OEM CD Smart Card Agreement dated 29 June 1999 (as supplemented by
a Supplemental Agreement dated 4 April 2000) ("SmartCard Agreement"),
and
(ii) a Value Added Reseller Agreement dated 4 April 2000 ("VAR Agreement")
covering iOra's products "SoftCD and "Mobile Intranet".
(B) The parties have agreed to enter into this Agreement to provide Distributor
with further rights in respect of SoftCD and to supersede the VAR Agreement
in respect of rights to SoftCD.
(C) This Agreement does not affect the SmartCard Agreement and the rights and
obligations on the parties in respect of CD Smart Cards shall remain as set
out in the SmartCard Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement the following words and expressions shall have the
following meanings:
1.1 "CD Business means a storage product whose physical
Card" size is similar to a business card
measuring up to 3.5" by 2.5" manufactured
utilising CD technology or DVD technology;
1.2 "CD-U" shall mean any storage product which
utilizes CD technology or DVD technology,
excluding a CD Business Card, which either-
(i) contains a copy of the iOra Client
whose purpose is to allow any part of the
content of the storage to be updateable by
an iOra SoftCD Publisher (excluding CDs
which contain a copy of iOra Client
Software which are being used for any
non-SoftCD product e.g. iOra Mobile
Intranet) or
(ii) contains a SoftCD Publication (for the
avoidance of doubt such definition of CD-U
not including other products developed by
the Supplier which can hold content on a CD
without the file system on the CD being
itself updateable);
1.3 "Commencement means 1 July 2000;
Date"
1.4 "End User" means a customer or prospective customer for
the CD-U who purchases the CD-U for use
other than for resale including without
limit for promotional purposes and shall
include recipients of the CD-U authorized by
such customer to use the CD-U;
1.5 "Exclusivity" means the restrictions accepted by the
Licensee under Clauses 4.1(i) and (ii) and
"Exclusive" shall be construed accordingly;
1.6 "High Risk means systems in high risk environments
Systems" requiring fail-safe performance (such as
nuclear facilities, aircraft navigation or
communication systems, air traffic control,
direct life support machines, or weapons
systems), in which the failure of the
Products could lead directly to death,
personal injury, or severe physical or
environmental damage;
1.7 "Intellectual means patents, trade marks, service marks,
Property Rights" registered designs, applications for any of
the foregoing, copyright, design rights,
know-how, confidential information, trade
and business names and any other similar
protected rights in any country;
1.8 "IQROM Group means any holding company of IQROM and any
Company" subsidiary of IQROM or such holding company
("holding company" and "subsidiary" having
the meaning set out in section 736 of the
Companies Xxx 0000 (as amended) );
1.9 "IQROM means IQROM Limited (Company No 03732349),
Limited" formerly DXP New Media Services Limited;
1.10 "Products" means CD-U and/or SoftCD;
1.11 "Regional means the royalty targets for sales of the
Targets" Products and CD Business Cards specified in
Schedule 1 in relation to each Region;
1.12 "Regions" means the world regions set out in Schedule
1 in relation to which royalty targets are
set;
1.13 "SoftCD means any additional features that are not
Additional part of the existing SoftCD 3.1 and for
Features" which a separate charge is made;
1.14 "SoftCD mean a set of files that represent the
Amendments" differences between two versions of a SoftCD
Publication with different content, produced
by iOra SoftCD Publisher;
1.15 "SoftCD means a CD or a file or directory thereon,
Publication" which is updated using SoftCD;
1.16 "SoftCD" means the software product known as iOra
SoftCD developed and distributed by the
Supplier, including the software known as -
(i) "iOra SoftCD Publisher", and (ii) iOra
Client" (as used with SoftCD Publisher);
1.17 "Sub-License" means the form of agreement which grants the
End User the right and license to use the
iOra Client, as incorporated within the
version for the time being of iOra Client;
1.18 "Template VAR means the VAR Agreement annexed hereto in
Agreement" Appendix A;
1.19 "Territory" means the world;
1.20 "Year" means any period of 12 months commencing on
the Commencement Date or any anniversary of
the Commencement Date.
2. GRANT OF RIGHTS
2.1 Rights granted
The Supplier grants to the Distributor the following Exclusive
rights (subject to Clauses 4.1, 4.4 and the other provisions
hereof):
(i) the right to manufacture or have manufactured CD-Us
using and incorporating SoftCD;
(ii) the right to market, sell and deliver CD-Us subject to
the provisions hereof and on the terms of the
Sub-License;
(iii) the right (subject to Clause 4.4.1) to appoint VARs
for CD-Us subject to a VAR agreement which -
a) shall contain provisions relating to SoftCD
substantially in the form of the Template VAR
Agreement unless otherwise agreed in writing by
the Supplier, and
b) shall be for a period which does not exceed three (3)
years, and in any event shall not be of a duration
which extends beyond the term of this Agreement as
set out in Clause 3, (but for the avoidance of doubt
the Distributor will not have rights to sign up VARs
to resell any of the Supplier's products other than
SoftCD);
(iv) the right to copy and distribute copies of SoftCD
Client to End Users on the terms of the Sub-License;
________________________________________________________________________________
(v) the right to grant sub-licenses to End Users in the
Territory on the terms of the Sub-License;
(vi) the right itself to use SoftCD Publisher for the
purpose of producing an unlimited number of SoftCD
Amendments to an unlimited number of SoftCD
Publications which have been produced on CD-Us
pursuant to the terms of this Agreement for or on
behalf of End Users, (such amendments being
distributable to those to whom CD-Us have been
distributed under the terms of this Agreement, but not
otherwise);
(vii) the right to market, sell and deliver copies of SoftCD
Publisher for use subject to the Supplier's standard
license.
and for the avoidance of doubt any right to market shall
include a right to demonstrate.
2.2 Group Companies
The Distributor shall be entitled to exercise the rights
granted under this Agreement through IQROM Group Companies
PROVIDED THAT:
(i) each IQROM Group Company complies with the provisions of
this Agreement;
(ii) the Distributor notifies the Supplier prior to any such
exercise, and each such IQROM Group Company executes a
deed of Adherence to the obligations in this Agreement if
requested by the Supplier prior to such use.
2.3 Source code
The Supplier shall at the Distributor's request enter into a
Source Code Escrow Agreement in respect of SoftCD in the
standard form of the National Computing Centre as attached in
Appendix B subject to the Distributor paying the National
Computing Centre's fees in respect thereof.
2.4 Amendment to VAR Agreement
2.4.1 The parties agree that the VAR Agreement shall be
amended such that as from the date of this Agreement it
shall apply only to the "Mobile Intranet" product and
the Distributor's rights to SoftCD under that agreement
shall be superseded and replaced by its rights to
SoftCD under this Agreement (this being an amendment to
the VAR Agreement agreed to have been made in
accordance with clause 18.7 of the VAR Agreement).
2.4.2 IQROM LIMITED are made a party to this Agreement solely
to record their agreement to the variation of the VAR
Agreement (in consideration of the grant of rights to
their parent company IQROM COMMUNICATIONS INC including
as set out in Clause 2.3) as set out in Clause 2.4.1.
3. *
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
4. EXCLUSIVITY, REVERSE COMMISSION & TARGETS
4.1 Exclusivity
The Supplier undertakes that:
(i) it will not enter into any agreement or arrangement for
the sale and/or licensing of SoftCD by third parties for
the duration of this Agreement except as agreed in
4.1(ii) or as permitted under Clause 4.3;
(ii) the companies -
a) which are existing VARs of the Supplier, and
b) with which the Supplier will sign agreements within
first three months of this Agreement
(all as listed in Schedule 2) ("Existing VARs"), will
continue to be VARs of the Supplier for the duration of
their VAR agreement which in all cases will terminate at
the latest by 15 months after the Commencement Date;
(iii) at the end of the Existing VARs' agreements the Supplier
will not be able to re-sign these VARs unless:
a) agreed in writing with the Distributor; or
b) the Existing VARs have
1) met their revenue targets under the relevant
agreement with the Supplier, and
2) are not appointed as VARs by the Distributor
pursuant to clause 2.1(iii).
in which case the Supplier shall be entitled to
re-appoint such VARs on substantially the same
terms as before, for a period of one year (at the
end of which this Clause 4.1(iii) shall apply
again).
4.2 Reverse commission
In consideration for the Distributor's performance of its
obligations in Clause 8.1 and compliance with its general
obligations under this Agreement:
(i) the Supplier will retain *% of all direct revenues or
Existing VARs' revenues from any orders for the Products
placed for an initial period of three months from the
Commencement Date;
(ii) the Distributor will receive *% commission for all direct
revenues or Existing VARs' revenues received by the
Supplier(net) from any orders for the Products placed by
customers (and where the Distributor is promoting the
Products in accordance with Clause 8.1(i) ) for the
period from the end of the third month up to the end of
the twelfth month from the Commencement Date;
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
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(iii) the Supplier will not be required to pay commission
on the first $* of direct revenues under orders placed
by customers located in the USA and Canada between the
1st October 2000 and the 31st December 2000;
(iv) the Distributor will receive -
a) *% commission for all direct revenues or Existing
VARs' revenues received by the Supplier (net) from
any orders for SoftCD Additional Features from
customers located in Regions where the Distributor
retains the Exclusivity (and where the Distributor is
promoting the Products in accordance with Clause
8.1(i) ); and
b) *% commission for all other direct revenues or
Existing VARs' revenues received by the Supplier
(net) for the Products placed by customers located in
Regions where the Distributor retains the
Exclusivity(and where the Distributor is promoting
the Products in accordance with Clause 8.1(i) );
for the period from the end of the twelfth month from
the Commencement Date up to the end of this Agreement;
4.3 Non-branded units
If the Distributor decides to physically or electronically
brand the media used for CD-Us then the Supplier will not
directly supply CD-Us which are not so branded to its Existing
VARs or direct customers (unless a) required to do so in
writing by an existing VAR or direct customer and b) the
Supplier supplies a copy of such request to the Distributor)
from a date starting 90 days after the receipt of confirmation
in writing from the Distributor that it can produce sufficient
quantities of branded CD-Us at an additional cost that is no
greater than (pound)* extra per CD-U to the end customer,
PROVIDED THAT the Distributor can and does produce sufficient
quantities.
4.4 *
4.5 Existing VARs in non-exclusive Regions
In the event of termination of the Distributor's rights to
appoint VARs in a Region pursuant to Clause 4.4.1, any
existing valid appointment of a VAR by the Distributor
pursuant to Clause 2.1(iii) shall continue in force for the
remainder of the permitted term under Clause 2.1(iii), but not
any longer, and provided that:
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
4.5.1 such appointment shall be solely in accordance with the
provisions of the relevant agreement between the VAR
and the Distributor;
4.5.2 such appointment shall be subject to such provisions on
termination for failure to meet targets as are included
in the relevant agreement between the VAR and the
Distributor;
4.5.3 the Distributor shall enforce such provisions strictly.
4.6 *
4.7 *
5. PAYMENT
5.1 Initial payment
In recognition of the value of the Exclusivity the Distributor
shall:
(i) *
(ii) *
5.2 Royalties & support fees
5.2.1 SoftCD Publisher
The Distributor shall pay to the Supplier a royalty
of (pound)* for every copy of iOra SoftCD Publisher
which has been supplied by the Supplier to the
Distributor:
(i) for use by the Distributor whether for its own
purposes or for hosting SoftCD Publications for
third parties and each copy purchased by the
Distributor will entitle the Distributor to
a) demonstrate SoftCD on the basis of such
number of fully functional "not for resale"
licenses for the Distributor's internal
use for named individuals and
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
b) to provide hosting services on computer
equipment owned or under the direct control
of the Distributor for an unlimited number
of SoftCD Publications;
(ii) for supply by the Distributor to the
Distributor's customers or to the Distributor's
resellers or to any customer of the
Distributor's resellers for use on a single
computer such copies to be subject to a license
agreement directly between the relevant user
and the Supplier entitling the relevant user to
support unlimited SoftCD Publications at no
extra charge.
5.2.2 Additional features
The Distributor shall pay to the Supplier a royalty
that will be *% of the Supplier's list price for any
SoftCD Additional Features supplied by the Supplier
to the Distributor for distribution by the
Distributor or any of its resellers.
5.2.3 SoftCD Publications
The Distributor shall pay to the Supplier a royalty
that will be *% of the Distributor's list price (if
any) of any SoftCD Publications supplied by the
Supplier for distribution by the Distributor or any
of its resellers PROVIDED THAT the Distributor or its
resellers have received payments for the supplied
SoftCD Publications.
For the avoidance of doubt any prices or payments
relating to the provision of hosting services and/or
CD-Us are not subject to this clause. Only prices and
payments directly and identifiably for SoftCD
Publications which are additional to the prices and
payments for hosting services and/or CD-Us are
subject to this clause.
5.2.4 Support
The Distributor shall pay to the Supplier *% of the
royalty fees payable under clauses 5.2.1, 5.2.2 and
5.2.3 in return for the Supplier providing support to
the Distributor for twelve months from the delivery
of the relevant products in respect of such products.
At the end of each twelve month period this support
can be purchased, for a further twelve months,
subject to the same payment terms as would apply to
a new purchaser of the same products.
5.2.5 CD-Us
The Distributor shall pay to the Supplier a royalty
of *p in respect of every CD-U sold by the
Distributor or any of its resellers (for the
avoidance of doubt no royalty shall be payable on the
sale by the Distributor of CD-Us to its resellers for
resale by its resellers).
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
5.2.6 Encrypted CD-Us
The Distributor shall pay to the Supplier a royalty
of *p (in addition to the * payable under Clause
5.2.3 ) in respect of every encrypted CD-U (being a
CD-U containing files which have been created using
the encryption feature built into SoftCD Publisher)
sold by the Distributor or any of its resellers (for
the avoidance of doubt no royalty shall be payable on
the sale by the Distributor of CD-Us to its resellers
for resale by its resellers).
5.3 Reporting and payment terms
5.3.1 The Distributor will report to the Supplier within 21
days from the end of each calendar quarter (the first
calendar quarter commencing on the Commencement Date)
as to the quantity of SoftCD Publishers, SoftCD
Additional Features, SoftCD Publications for which a
charge has been made, CD-Us and Encrypted CD-Us and
which the Distributor or its resellers have
contracted to sell during the previous quarter and
will pay the royalties due for the said quarter
within a further period of 30 days.
5.3.2 In the event of late payment the Supplier may charge
interest on all sums overdue at the rate of 2 per
cent per month (or at the maximum amount permitted
under any applicable law, if less), compounded
monthly from the due date until payment.
6. INSPECTION AND AUDIT
6.1 Records
6.1.1 Each party shall keep complete and accurate books and
records with respect to this Agreement in order to
determine accurately the amount owed by each party to
the other party hereunder. Each party shall preserve
such records for at least two years after the
termination of this Agreement.
6.1.2 The Distributor shall also procure that each VAR
appointed under Clause 2.1(iii) shall keep such
records during the term of their appointment and for
at least two years after the termination of such
appointment.
6.2 Inspection
6.2.1 Each party shall have the right during the term of
this Agreement and within two years thereafter, to
appoint a Chartered Accountant to inspect, audit and
take copies or extracts from such books and records
of the other party upon reasonable prior notice
during normal business hours at the other party's
offices for the purpose of verifying the accuracy of
the statements provided under this Agreement. The
other party agrees to provide such Chartered
Accountant with such assistance, co-operation and
further information as the Chartered Accountant may
reasonably require for such purpose.
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
________________________________________________________________________________
6.2.2 The Distributor shall also procure that in respect of
each VAR appointed under Clause 2.1(iii), the
Supplier shall be entitled to carry out such
inspection and audit directly.
6.3 Underpayment
6.3.1 If such inspection reveals that the other party's
payments were less than the amount, which should have
been paid, then the other party shall pay any sums
shown to be due together with interest thereon
calculated on the basis that such sums fell due on
the date on which they should have been declared.
6.3.2 In the event of an inspection revealing an error in
excess of 5% of the total sums accrued due during the
period for which such inspection and audit was made
the other party shall pay all the costs of such audit
and inspection upon receipt of an appropriate invoice
justifying the costs. Otherwise, the auditing party
will pay all the costs of the audit and inspection.
7. TRAINING AND SUPPORT
7.1 Training
The Supplier shall provide reasonable training in the use,
installation and maintenance of the Products for the
Distributor's personnel as agreed between the parties.
7.2 End User Support The Distributor and/or its VARs shall use
their reasonable endeavors to provide support to End Users on
terms and prices to be determined by the Distributor except
that the Distributor's VAR's shall be free to determine their
own prices for support.
7.3 Second-line support The Supplier shall provide support to the
Distributor in respect of SoftCD as part of the consideration
for the payment of royalties pursuant to Clauses 5.2.4, 5.2.5
and 5.2.6.
8. DISTRIBUTOR'S OBLIGATIONS
8.1 The Distributor shall:
(i) use its reasonable endeavors to promote and extend the
sale of the Products throughout the Territory;
(ii) at all times maintain adequate demonstration facilities
for the Products;
(iii) use the Supplier's trade marks and trade names relating
to SoftCD only in the registered or agreed style in
connection with the marketing and sale of the Products;
(iv) whenever CD-U, or any equivalent term, is used in the
Distributor's press releases, marketing collateral and
products the Distributor should make reasonable
endeavors to directly reference (where it is
appropriate) SoftCDTM and include acknowledgement of the
trademark in the form required by the Supplier and
reference to the Supplier's company name and website.
(v) whenever SoftCD or Epsilon, or any equivalent term for
either, is used in the Distributor's press releases,
marketing collateral and products the Distributor should
make reasonable endeavors to directly reference SoftCDTM
and include acknowledgement of the trademark in the
form required by the Supplier and reference to the
Supplier's company name and website.
9. SUPPLIER'S OBLIGATIONS
9.1 The Supplier shall:
(i) provide the Distributor with such marketing and
technical assistance as the Distributor may consider
reasonably necessary to assist the Distributor with the
promotion of the Products and as may reasonably be
required to be provided by the Supplier (provided that
the Supplier shall not be required to provide direct
support to the Distributors or its VARs End Users or to
directly support any marketing or joint marketing);
(ii) provide second line support to the Distributor in
respect of the Products by telephone and email during
the Supplier's normal working hours;
(iii) answer to the Distributor as soon as reasonably
practicable all technical queries raised by the
Distributor or its customers concerning the use or
application of the Products;
(iv) provide the Distributor with adequate quantities of
instruction manuals, technical and promotional
literature and other information relating to the
Products at cost;
(v) provide to the Distributor for inclusion in the Products
any updates or enhancements to the Products;
(vi) provide the Distributor promptly with all information
and assistance necessary to enable the Distributor
properly to perform its obligations hereunder in respect
of any such modified or enhanced versions of the
Products;
9.2 The Supplier shall ensure, to the extent that it has not
already done so, that SoftCD is localizable for the markets
within each Region where the Distributor can demonstrate that
such work to make SoftCD localizable is reasonably necessary.
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10. INTELLECTUAL PROPERTY RIGHTS
Nothing in this Agreement shall operate to transfer any
Intellectual Property Rights in or relating to the Products.
11. CONFIDENTIALITY AND COMPETITION
11.1 Confidentiality obligations Neither party shall use or divulge
or communicate to any person (other than those whose province
it is to know the same or as permitted or contemplated by this
Agreement or with the written authority of the other party or
as may be required by law):
(i) any confidential information concerning the products,
customers, business, accounts, finance or contractual
arrangements or other dealings, transactions or affairs
of the other party and its subsidiaries which may come to
the first party's knowledge during the continuance of
this Agreement; or
(ii) any of the terms of this Agreement; and each party shall
use its best endeavors (i) to prevent the unauthorized
publication or disclosure of any such information or
documents and (ii) to ensure that any person to whom such
information or documents are disclosed by such party is
aware that the same is confidential to the other party.
11.2 Employees
Each party shall ensure that its employees are aware of and
comply with the confidentiality and non-disclosure provisions
contained in this Clause and shall indemnify the other party
against any loss or damage which the other may sustain or
incur as a result of any breach of confidence by any of such
party's employees.
11.3 Notification of breach
If either party becomes aware of any breach of confidence by
any of its employees it shall promptly notify the other party
and give the other party all reasonable assistance in
connection with any proceedings which the other party may
institute against any such employees.
11.4 Survival
The provisions of this Clause shall survive the termination of
this Agreement but the restrictions contained in Clause 11.1
shall cease to apply to any information which may come into
the public domain otherwise than through unauthorized
disclosure by the receiving party or its employees.
11.5 Non-competition
11.5.1 The Supplier may terminate the Exclusivity in all
Regions on three (3) months' written notice to the
Distributor if the Distributor markets or sells
CD-Us, which incorporate software with a similar
purpose, which compete with SoftCD whether developed
by the Distributor or a third party unrelated to the
Supplier. Upon the expiration of such notice this
Agreement shall continue in full force and effect
save for the Exclusivity and provisions relating
thereto.
11.5.2 On termination of Exclusivity pursuant to clause
11.5.1, the Distributor's rights to appoint VARs
under Clause 2.1(iii) shall also terminate.
12. TERMINATION
12.1 Grounds for termination
Notwithstanding anything else contained herein, this Agreement
may be terminated by either party forthwith on giving notice in
writing to the other if:
(i) the other party commits any material or persistent breach of
any term of this Agreement and (in the case of a breach
capable of being remedied) shall have failed, within 30 days
after the receipt of a request in writing from the other
party so to do, to remedy the breach (such request to
contain a warning of such party's intention to terminate);
(ii) the other party shall have a receiver or administrative
receiver appointed over it or any part of its undertaking or
assets or shall pass a resolution for winding up (otherwise
than for the purpose of a bona fide scheme of solvent
amalgamation or reconstruction) or a court of competent
jurisdiction shall make an order to that effect or if the
other party shall enter into any voluntary arrangement with
its creditors or shall become subject to an administration
order.
12.2 Compensation for termination Neither party shall not be
entitled to any compensation or indemnity (whether for loss of
distribution rights, goodwill or otherwise) as of right as a
result of the termination of this Agreement in accordance with
its terms.
13. EFFECT OF TERMINATION
On the termination of this Agreement in accordance with the
preceding clause all the rights and obligations of the parties
under this Agreement shall automatically terminate except:
(i) for such rights of action as shall have accrued prior to such
termination and any obligations which expressly or by implication
are intended to come into or continue in force on or after such
termination;
(ii) the Distributor shall be entitled to sell any of its stocks of
the Products which have been fully paid for and which are
required to fulfill any unperformed contracts of the Distributor
outstanding at the date of termination (and to that extent and
for that purpose the provisions of this Agreement shall continue
in effect);
(iii) End Users who have purchased and/or received any of the Products
prior to termination or in cases falling within clause 13(ii)
shall be permitted to continue using The Products on the terms of
the Sub-License and the license to the Distributor shall continue
for this purpose only.
________________________________________________________________________________
14. *
15. LIABILITY
15.1 Authority
The Supplier warrants to the Distributor that it is entitled
to grant the rights granted under this Agreement and that
use of the Products in accordance with the Agreement will
not infringe the rights of any third party
15.2. Performance
The Products as supplied to the Distributor shall for a
period of ninety (90) days from the date of delivery to or
download by the Distributor ("the Warranty Period") operate
substantially in conformance with their accompanying
documentation.
The Distributor's sole remedy and the Supplier's sole
liability for breach of the warranty in this Clause 15.2
shall be to correct such breach or (at its option) replace
such copy of the Products free of charge, provided that it
shall only be required to do so where:
15.2.1. the Products have been used at all times properly and
in accordance with instructions for use; and
15.2.2. no alteration, modification or addition has been made
to the Products without the Supplier's prior written
consent; and
15.2.3. the alleged error, malfunction or inconsistency has
been notified to the Supplier within the Warranty
Period in writing by post or fax, specifying the
Product and the nature of the alleged error or
malfunction.
15.3. Implied warranties
EXCEPT AS OTHERWISE PROVIDED IN THIS CLAUSE, THE SUPPLIER
MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
THE PRODUCTS, AND ALL WARRANTIES AND CONDITIONS RELATING TO
THE PRODUCTS, EITHER EXPRESS OR IMPLIED (INCLUDING BUT NOT
LIMITED TO ANY IMPLIED CONDITIONS OF SATISFACTORY QUALITY OR
FITNESS FOR ANY PARTICULAR PURPOSE) ARE HEREBY EXCLUDED TO
THE FULLEST EXTENT PERMITTED BY LAW.
15.4. High Risk Systems
It is expressly acknowledged and agreed by the Distributor
that:
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*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
________________________________________________________________________________
15.4.1 the Products are not warranted to be fault-tolerant,
and is not intended for the design, construction,
maintenance, operation, control, or any other use in
connection with High Risk Systems, and any express or
implied warranty or condition of fitness for purpose
on connection with High Risk Systems is hereby
excluded to the fullest extent permitted by law;
15.4.2 it is not technically practicable to guarantee
software to be error-free, and the Supplier does not
guarantee or warrant the Products to be error-free.
15.5. Viruses
Although the Supplier does not warrant that the Products
supplied hereunder shall be free from all known viruses, it
has used commercially reasonable efforts to check for the most
commonly known viruses. The Distributor is nevertheless solely
responsible for virus scanning the Products.
15.6. Damage to property
Subject to Clause 15.9, the Supplier's liability in respect of
any loss of or damage to tangible property caused by its
negligence, or the negligence of its employees acting under
its control shall be limited to (pound)1,000,000 for each
event or series of connected events.
15.7. Other loss
Except as set out in Clauses 15.6 and 15.9, the Supplier's
liability under this Agreement, whether in contract, tort,
negligence or howsoever, shall be limited to the sums payable
by the Distributor to the Supplier under this Agreement.
15.8. Consequential loss
Notwithstanding the generality of the above, the Supplier
expressly excludes liability for any:
15.8.1 consequential loss or damage;
15.8.2 loss of or corruption to other software or loss of or
corruption to data; or
15.8.3 loss of anticipated savings;
whether arising from negligence, breach of contract
or howsoever.
15.9. Personal injury or death
Nothing in this Agreement shall limit or is intended to limit
the Supplier's liability for death or personal injury caused
by the negligence of the Supplier or its employees acting
under its control.
16. WAIVER
No forbearance, delay or indulgence by either party in
enforcing the provisions of this Agreement shall prejudice
or restrict the rights of that party nor shall any waiver of
its rights operate as a waiver of any subsequent breach and
no right, power or remedy herein conferred upon or reserved
for either party is exclusive of any other right, power or
remedy available to that party and each such right, power or
remedy shall be cumulative.
________________________________________________________________________________
17. INDEMNITIES
17.1 IPR indemnity
The Supplier shall indemnify the Distributor and keep the
Distributor fully and effectively indemnified against any and
all losses, claims, damages, costs, charges, expenses,
liabilities, demands, proceedings and actions which the
Distributor may sustain or incur or which may be brought or
established against it by any person and which in any case
arise out of or in relation to or by reason of any claim or
allegation that any of the Products infringes any Intellectual
Property Rights of any third party and which are not due to
the Distributor's negligence, recklessness or willful
misconduct or any breach of its obligations under this
Agreement PROVIDED THAT:
17.1.1 the Distributor promptly notifies the Supplier of any
such claim as soon as it is aware of it;
17.1.2 the Distributor permits the Supplier to handle and
defend such claim, and provides the Supplier with
authority to do so; and
17.1.3 the Distributor (at the Supplier's cost) provides the
Supplier with such reasonable assistance and
information as may reasonably be required in order to
handle such action.
The indemnity set out above shall not apply to any
infringement which: (i) is due solely to the combination of
the Products with other software or hardware not provided by
the Supplier; or (ii) results from use of the Products outside
the scope of or other than in accordance with this Agreement;
or (iii) results from failure by the Distributor to use any
amended or replacement software provided to the Distributor of
equal functionality and quality where the Supplier has
notified the Distributor of the possibility of infringement if
such amended or replacement software is not adopted.
It is acknowledged that it is the Distributor's responsibility
to ensure that the Products are not distributed in any
jurisdiction within the Territory unless it complies with
local laws and regulations relating to its sale and use
therein.
17.2 Distributor indemnity
The Distributor shall indemnify the Supplier and keep the
Supplier fully and effectively indemnified against any and all
losses, claims, damages, costs, charges, expenses,
liabilities, demands, proceedings and actions which the
Supplier may sustain or incur, or which may be brought or
established against it by any person and which in any case
arise out of or in relation to or by reason of the negligence,
recklessness or willful misconduct of the Distributor or an
infringement by the Distributor of the patent rights of any
third party in the performance of any of its obligations or
the exercise of its rights under this Agreement.
17.3 Co-operation
If any claim is made against either party for which
indemnification is sought under this Clause, the indemnified
party shall consult with the other and, subject to being
secured to its reasonable satisfaction, shall co-operate with
the other in relation to any reasonable request made by the
other in respect of such claim.
________________________________________________________________________________
18. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its
obligations under this Agreement if such delay is caused by
circumstances beyond the reasonable control of the party so delaying
and such party shall be entitled (subject to giving the other party
full particulars of the circumstances in question and to using
reasonable endeavors to resume full performance without avoidable
delay) to a reasonable extension of time for the performance of such
obligations.
19. NOTICES
All notices which are required to be given hereunder shall be in
writing and shall be sent to the address of the recipient set out in
this Agreement or such other address in England as the recipient may
designate by notice given in accordance with the provisions of this
Clause. Any such notice may be delivered personally or by first class
pre-paid letter or facsimile transmission and shall be deemed to have
been served if by hand when delivered, if by first class post 48 hours
after posting and if by facsimile transmission when dispatched.
20. INTERPRETATION
20.1 In this Agreement:
(i) reference to any statute or statutory provision includes
a reference to that statute or statutory provision as
from time to time amended, extended or re-enacted;
(ii) words importing the singular include the plural, words
importing any gender include every gender and words
importing persons include bodies corporate and
unincorporated; and (in each case) vice versa;
(iii) any reference to a party to this Agreement includes a
reference to his successors in title and permitted
assigns;
(iv) the headings to the Clauses and sub-clauses are for ease
of reference only and shall not affect the
interpretation or construction of this Agreement.
21. GENERAL
21.1 Entire Agreement & law
This Agreement constitutes the entire understanding between
the parties concerning the subject matter of this Agreement
and shall be governed by and construed in accordance with the
laws of England.
21.2 Waiver
No waiver or amendment of any provision of this Agreement
shall be effective unless made by a written instrument signed
by both parties.
________________________________________________________________________________
21.3 Severability
Each provision of this Agreement shall be construed separately
and notwithstanding that the whole or any part of any such
provision may prove to be illegal or unenforceable the other
provisions of this Agreement and the remainder of the
provision in question shall continue in full force and effect.
21.4 Assignment
This Agreement shall not be assigned by the Distributor
without the prior written consent of the Supplier (such
consent not to be unreasonably withheld) .
21.5 Jurisdiction
The parties submit to the exclusive jurisdiction of the English
Courts but without prejudice to either party's rights to bring
proceedings in any other jurisdiction where the other party is
incorporated or has assets
________________________________________________________________________________
SIGNED BY THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES
FOR AND ON BEHALF OF iOra LIMITED FOR AND ON BEHALF OF IQROM
BY: COMMUNICATIONS INC and IQROM
LIMITED
BY:
Signature: /s/ Paddy Falls Signature: /s/ Xxx Xxxx
------------------------- ---------------------------------
Name: Paddy Falls Name: Xxx Xxxx
Position: CEO Position: CEO
Date: 23 June 2000 Date: 23 June 2000
________________________________________________________________________________
SCHEDULE 1
MINIMUM ROYALTY LEVELS FOR
THE PRODUCTS
*
SCHEDULE 2
EXISTING VARS
Signed VAR agreements:
*
Pending VAR agreements:
*
----------------
*Confidential treatment has been requested for certain portions of this document
pursuant to an application for confidential treatment sent to the Securities
and Exchange Commission. Such portions are omitted from this filing and are
filed separately with the Securities and Exchange Commission.
________________________________________________________________________________
*
APPENDIX A
Template VAR Agreement
-see attached-
APPENDIX B
Escrow agreement
see attached
--------------------
*Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and are filed separately with the Securities and Exchange Commission.
