* Portions of this marked Exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the Commission.
EXHIBIT 10.12
DATED
2002
FS2 LIMITED (1)
and
THERMEON CORPORATION (2)
-----------------------
SERVICES AGREEMENT
-----------------------
THIS AGREEMENT is made the ______________ day of _________________________ 2002
PARTIES
1. FS2 LIMITED a company duly existing and registered under the laws of
England with company number 04102584 and whose registered office is at
Carlton Tower 00 Xx Xxxxx Xxxxxx Xxxxx XX0 0XX ("FS2");
2. THERMEON CORPORATION whose registered office is at 00000 Xxxxxxx Xxxxxx
Xxxxx Xxx XX 00000 XXX ("Thermeon").
RECITALS
A. Thermeon have agreed to provide to FS2 services and products in relation to
the development and operation of the BSP Travellink Application.
B. Thermeon and FS2 have agreed to enter into this Agreement in order to
record the terms upon which Thermeon will provide the services to FS2 set
forth in this Agreement.
TERMS
1. Definitions
In this Agreement unless inconsistent with the context or otherwise specified
the following definitions will apply:
"Acceptance Date"
means the date on which the Software is accepted or deemed to be accepted
by FS2 pursuant to clause 11;
"Acceptance Tests"
means the tests described in clause 11;
"Acceptance Notice"
means the document provided to Thermeon after the successful testing of
each release of the application against the Development Acceptance
Criteria;
"Agreement"
means these terms and the Schedules to them;
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"Acquisition Agreement"
means the agreement to be entered into between FS2 its shareholders and
National Pizza Corporation LLC;
"BSP Carlink Interface"
means the systems and processes for interfacing the BSP Travellink
Application with car rental reservation and booking systems;
"BSP Travellink Application"
means the internet based travel application jointly developed by the
Consortium Participants providing distribution and settlement services to
non-air vendors in the travel and tourism industries including but not
limited to the software, screen displays, look and feel design elements,
user interface, functional capabilities, dynamic screen handling routines,
logic routines, keyword structure, data definitions and data relations that
comprise the front-end user experience and enable interaction with the BSP
Travellink service over the Internet or through other online connections;
"Business Day"
means any day other than Saturday and Sunday or a public holiday in
England;
"Change Management"
means the procedure for the proper management of changes to the services
provided;
"Confidential Information"
means any and all information, in whatever form, whether tangible or
intangible, and whether disclosed before or after this Agreement, which is
now or at any time after the date of this Agreement owned or controlled by
the parties and which is either marked as "Confidential" or is within the
reasonable contemplation of the parties as being of a confidential nature
and which is or has been supplied in connection with this Agreement;
"Consortium Participants"
means Videcom International Limited whose registered office is at Newtown
Road Xxxxxx on Xxxxxx XX0 0XX Xxxxxx Xxxxxxx; Webb&Flo Inc. whose
registered office is at X.X. Xxx 0000 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx 00000 XXX; Thermeon Corporation whose registered office is at 00000
Xxxxxxx Xxxxxx Xxxxx Xxx XX 00000 XXX ("Thermeon"); and IATA;
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"Deliverables"
means the Software and the Documentation and all other materials to be
produced or used by Thermeon and/or made available to FS2 during the
Project including but not limited to the matters specified in the Project
Definition Paper;
"Development Acceptance Criteria"
means the list of elements that each release of the application will be
tested against before acceptance is provided;
"Development Plan"
means the documented list of tasks resources and allocations that will be
used to monitor the Projects progress against plan;
"Development Services"
means the development of the Software and the System by Thermeon in
accordance with the specification document;
"Documentation"
means the documentation described in the Project Definition Paper together
with such operating manuals and other technical specifications and
documents necessary to enable FS2 to use and to make any modifications to
the Software;
"Equipment"
means the computer equipment and operating systems specified in the Project
Definition Paper;
"Exit Management"
means the process by which all reasonable assistance will be provided by
Thermeon to achieve a transfer of the Service to another service provider;
"First Level Support Services"
means the initial handling point of any end-user enquiry by FS2 and or its
appointed representative/s;
"XX0 Xxxxxxxx"
means the amounts invoiced to FS2 Travel Vendors for transactional
processing, advertising, promotions, services and travel vendor
participation in accordance with the Travel Supplier Agreements, such sum
to be net of credit notes and sales taxes (VAT) and accounted for by FS2 in
its monthly management accounts in accordance with accepted international
accounting standards and subject to audit by the external auditors of FS2
for the purpose of its annual report and accounts;
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"FS2 Travel Vendors"
means those travel and tourism suppliers and service operators that have or
will in the future contract for the Service;
"IATA"
The International Air Transport Association;
"IDFS"
a division of IATA known as Industry Distribution and Financial Services;
"Implementation Plan"
means the list of tasks that require completion before the application is
considered operational;
"Installation Site"
means the location of the premises in which the Service will be undertaken;
"Intellectual Property"
means patents, know-how and techniques (whether or not confidential and in
whatever form held), registered and unregistered trademarks and service
marks, copyright, database rights and in each case for the full periods of
them and all extensions and renewals thereto and applications for any of
them and the right to apply for any of them in any part of the world and
any similar rights;
"Milestone"
means as regards any of Thermeon's obligations to deliver any of the
Deliverables or to perform any part of the Project the relevant date or
stage set out in the Project Definition Paper or any other agreed date;
"Licensed Software"
means the existing computer programs listed in [*] to be supplied by
Thermeon to FS2 under this Agreement where the Intellectual Property
remains with Thermeon;
"Project Definition Paper"
means the document in [*] as amended from time to time in accordance
with this Agreement;
"Personnel"
means any individual provided by Thermeon to perform the services required;
"Phase"
means a phase or stage of the Project as specified in the Project
Definition Paper;
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"Price and Payment Plan"
means the financial remuneration package as detailed in [*] of this
Agreement;
"Production Version"
means the version of the BSP Travellink Application that is in use;
"Project"
means the project for the supply of the Deliverables and the Service by
Thermeon under this Agreement;
"Rate Card"
means the standard rate card terms of Thermeon as detailed in [*];
"Second Level Support Services"
means support provided after the representative of FS2 and or any other
organisation has provided the First Level Support Services;
"Service"
means software development, maintenance, and support, as well as consulting
and other requirements of this Agreement;
"Service Level Agreement"
means the documented levels of services to be mutually agreed and which
once agreed will be deemed incorporated in and subject to the terms and
conditions of this Agreement;
"Software"
means the computer programs and source code to be developed by Thermeon
specifically for FS2 under this Agreement as briefly described in the
Project Definition Paper and in the form of a design document to be
concluded within 30 days of the date of this Agreement to be added to
[*];
"Software Maintenance Agreement"
means the level of support as determined in accordance with clause 16 of
this Agreement;
"Specification"
means the specification of the Software describing the intended functions
and facilities for the Software as set out in the Project Definition Paper;
"Sub-Contractor"
means any person, firm or company (other than Thermeon) to whom any part of
the Project is sub-contracted;
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"Support Services"
means the software support and infrastructure services specified in the
Service Level Agreement which are to be provided by Thermeon to FS2;
"System"
means the hardware software infrastructure and intellectual property that
combine to provide the BSP Travellink Application;
"Term"
means the period indicated in clause 30;
"Territory"
means the World;
"Third Party"
means any other organisation with whom Thermeon and/or the Consortium
Participants must cooperate;
"Travel Supplier Agreements"
means the agreement to be concluded between FS2 and its customers. 2.
Conditions
2.1 This Agreement is conditional upon execution and completion of the
Acquisition Agreement.
2.2 In the event that the Acquisition Agreement is not completed by 30
September 2002 then this Agreement shall at the option of either party be
terminable on 7 days written notice at which time subject to the provisions
of this Agreement all obligations of the parties to each other shall cease
forthwith. FS2 acknowledges its responsibility to address any outstanding
liabilities accrued prior to the date of termination.
2.3 FS2 undertake to notify Thermeon when this Agreement becomes unconditional.
3. Duties and obligations of Thermeon
In addition to the responsibilities of Thermeon detailed in clause 8:
3.1 Thermeon agrees to design and write the Software and Documentation and
provide the Services all as described in the Project Definition Paper and
in accordance with and subject to the terms of this Agreement.
3.2 Subject to clause 4.9 Thermeon acknowledges that the Licensed Software and
Software are to be used in connection with the BSP Travellink Application
and in conjunction with the Equipment. Thermeon acknowledges that it has
been supplied with sufficient information about the Specification and the
Equipment and that it has made all appropriate enquiries to enable it to
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undertake the Project in accordance with this Agreement. Thermeon will
promptly bring to the attention of FS2's Project Representative any matter
which is not adequately specified or defined in the Specification and any
other relevant specification or document.
3.3 Thermeon may employ Sub-Contractors for carrying out any part of the
Project. Thermeon will not be relieved of any of its obligations under this
Agreement by entering into any sub-contract for the performance of any part
of the Project and will at all times remain primarily responsible and
liable to FS2 for the conduct of the Sub-Contractors.
3.4 Thermeon shall carry out the Project with reasonable care and skill in a
professional and businesslike manner and in accordance with accepted
industry practices using appropriately qualified and experienced Personnel.
In particular, but not by limitation, Thermeon will use all reasonable
endeavours to achieve completion of each Phase of the Project by the
relevant Milestone in the Project Definition Paper.
3.5 Thermeon shall be entitled in relation to the Software to undertake such
acts in the United Kingdom as may be restricted by copyright by virtue of
the Copyright and Designs Patents Xxx 0000 solely insofar as this is
necessary to enable Thermeon to perform its obligations under the Project.
All Intellectual Property in the Software and any other Intellectual
Property of FS2 disclosed during or as a consequence of the Project shall
at all times remain vested in FS2.
3.6 Thermeon will provide ongoing support and maintenance of the BSP Travellink
Application in accordance with the Service Level Agreement once it is moved
from pre-implementation to an operational environment.
3.7 Thermeon will prepare, provide to FS2 and maintain a set of technical and
functional specifications in electronic format and in the English language
or any additional documentation that may be required as mutually agreed
between the parties.
3.8 Thermeon will use its best endeavours to achieve the objectives laid out in
this Agreement and not to unreasonably prevent conclusion of any
outstanding actions or items.
3.9 Thermeon shall deposit the current version of the Licensed Software and the
Software with a recognised escrow agent. The costs associated with the
escrow agent shall be met by FS2.
4. Duties and obligations of FS2
With effect from the date of this Agreement and during the Term, FS2 will:
4.1 Make available to Thermeon all staff reasonably required to assist in the
provision of the Service;
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4.2 Secure necessary data provision before during and after implementation;
4.3 Provide such office facilities and equipment as may be reasonably required
for the purposes of allowing Thermeon to fulfil its obligations under this
Agreement;
4.4 Provide such information relating to IATA's IDFS business as Thermeon may
reasonably require to allow Thermeon to fulfil its obligations under this
Agreement;
4.5 Actively promote through the existing network of IATA's BSP Operations'
offices world-wide the BSP Travellink Application with the objective of
deploying it on a world-wide basis without limitation to the travel and
associated industries;
4.6 Use its reasonable endeavours to secure contractual agreements with
participating travel suppliers, and manage such relationships thereafter;
4.7 Provide technical and customer support, build and promote travel agent
distribution, and provide all necessary financial settlement and accounting
systems necessary for the fulfilment for the Project;
4.8 Reimburse reasonable travel and accommodation expenses to Thermeon that
shall not be incurred without the prior consent of FS2;
4.9 Provide all information necessary to Thermeon to allow it to undertake the
obligations referred to in clause 3.2 from time to time;
4.10 Make payments to Thermeon pursuant to the provisions specified and
contained in [*] of this Agreement.
5. Mutual obligations
The parties will mutually co-operate to identify the best technology and
means to provide the BSP Travellink Application in the most effective and
efficient manner, not limited to technology platform or software and the
parties will co-operate with all other appointed service providers in a
professional and businesslike manner.
6. Acknowledgements
6.1 Thermeon acknowledges that it has been supplied with sufficient information
about the business requirements of FS2 to enable it to provide and perform
the Service.
6.2 Thermeon will not be entitled to any additional payment nor excused from
any liability under this Agreement as a consequence of any negligent
misinterpretation of any matter or fact based on the Specification or the
Project Definition Paper or other technical requirements.
6.3 All right title and interest and Intellectual Property in the Software
shall at all times vest in FS2.
8
6.4 Thermeon unconditionally irrevocably and in perpetuity waives all moral and
authors rights and rights of a similar nature under the laws of any
jurisdiction in respect of the Software and any other copyright arising as
a consequence of participation by Thermeon in the development of the
Software and will procure such a waiver on the same terms from each member
of the Personnel at any time.
6.5 At the request of FS2 Thermeon will at its expense do all such things and
sign all documents or instruments reasonably necessary to enable FS2 to
obtain its rights under sub clauses 6.3 and 6.4.
6.6 In so far as it may be necessary to give effect to the provisions of
sub-clauses 6.3 and 6.4 Thermeon hereby assign with full title guarantee
all present and future intellectual property it may now or in the future
own in the Software.
6.7 Thermeon shall grant to FS2 an unconditional irrevocable perpetual
world-wide licence to use the Licensed Software exclusively in connection
with the utilisation of the BSP Travellink Application subject to payment
by FS2 of the payments due to Thermeon pursuant to [*].
7. Development
7.1 Subject to the remaining provisions of this Clause Thermeon have been
appointed as the primary developer and product development consultant for
the BSP Carlink Interface provided that the terms proposed by Thermeon in
relation to the development of the BSP Carlink Interface are commercially
acceptable to FS2 and subject always to the proviso that FS2 may seek
alternative assistance with the development of the BSP Carlink Interface if
the proposals of Thermeon are not acceptable to FS2.
7.2 If the parties agree that Thermeon will provide any Development Services
Thermeon will deliver and perform the Development Services with all
reasonable skill speed accuracy and due diligence in accordance with the
Development Plan and delivery date(s) specified.
7.3 Thermeon will demonstrate to FS2 that any enhancements or modifications to
the BSP Travellink Application undertaken by Thermeon as part of the
Development Services will perform in all material aspects with Development
Acceptance Criteria specified in the Development Plan.
7.4 The enhancements or modifications to the BSP Travellink Application
undertaken by Thermeon as part of the Development Services will,
immediately following issue of an Acceptance Notice by FS2, be deemed
included in and subject to the terms and conditions of this Agreement for
the purpose of the provision of the Support Services.
9
7.5 Notwithstanding any other provision in this Agreement, Thermeon will not be
obliged to provide Support Services in relation to any modifications,
enhancements or developments to the BSP Travellink Application which are
undertaken by FS2, any Third Party or Consortium Partner.
8. Services to be provided by Thermeon
8.1 Thermeon hereby undertakes to FS2 to:
8.1.1 [*]
8.1.2 [*]
8.1.3 [*]
8.1.4 [*]
8.1.5 ensure liaison and co-operation between Consortium Participants;
8.1.6 provide second line support for the network and system
administrators and conform to the elements of the Service Level
Agreement, including uptime, reliability and performance and
penalties for failure to achieve;
8.1.7 develop the BSP Carlink Interface in accordance with the industry
needs in order to maximise the impact and potential of sales
therein;
8.1.8 provide Project Management including use of resource management
and tracking, budget control and project life cycle techniques;
8.1.9 provide consulting services on an ad hoc basis; and
8.1.10 participate in regular multi-party or consortium meetings
throughout the lifecycle of the Project.
9. Change control
9.1 At any time during the Term FS2 may in writing request changes to any part
of the Project.
9.2 Thermeon will use its best endeavours to evaluate any such request and as
soon as reasonably practicable thereafter advise FS2 in writing of whether
it is prepared to implement the requested change and of any effect such
change may have on this Agreement.
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9.3 Should FS2 wish to proceed with the proposed change, it will instruct
Thermeon in writing of its wish after receipt of Thermeon's response given
pursuant to clause 9.2. Those parts of this Agreement affected by the
change will then be deemed to be modified accordingly.
9.4 Until any change is formally agreed between Thermeon and FS2 Thermeon will
continue to perform the Project as if the change had not been proposed.
9.5 [*]
9.6 The Change Management process will be documented in a jointly agreed and
revised Service Level Agreement.
10. Contract Management
10.1 Each party will appoint a senior member of its staff (`the Project
Representative') to act as the principal point of contact for the purposes
of this Agreement.
10.2 Thermeon will provide written progress reports at such frequencies as will
be agreed from time to time, but no less frequently than once per calendar
month.
10.3 Progress meetings to discuss progress reports and other relevant issues
will be held weekly or at such other frequencies as agreed by the parties.
Such meetings may be conducted by telephone or by the use of net meeting
software. Such meetings may include the Consortium Participants.
10.4 Minutes of these meetings will be taken by Thermeon and sent to FS2 within
5 working days of the meeting for FS2's approval. Only minutes so approved
will be treated as an accurate record of such meetings.
10.5 The Project Representatives will identify and review any failures by
Thermeon to comply with its obligations under this Agreement and will
formulate a plan to remedy such failures. Progress in implementing such
plan will be included on the agenda for the next following review session.
10.6 Any critical unresolved issue identified by the Project Representatives
will be notified to a director appointed for the purpose by each of the
parties to this Agreement within one week of identification for resolution.
11
11. Acceptance Procedure
11.1 FS2 and Thermeon will jointly prepare a test specification setting out the
criteria and procedures for the acceptance of the Software (`the Acceptance
Specification') which is suitable to demonstrate that the Software complies
with and performs in accordance with the Specification and is otherwise
properly functioning and fit for licensing and use by end users.
11.2 If required by FS2, and subject to agreement between the parties as to the
associated costs and expenses, Thermeon will have no less than two suitably
experienced Personnel involved with the development of the Software
available on call at FS2's request to attend the Installation Site to
assist FS2 and provide advice on matters relating to the conduct of the
Acceptance Tests.
11.3 If any part of the Software fails to pass its applicable Acceptance Tests
Thermeon will be given such time and facilities as are reasonable in all
the circumstances to rectify such part of the Software and repeat those
Acceptance Tests applying to such part within a reasonable time but in any
event within the time period defined in the Service Level Agreement after
the failure to pass the applicable Acceptance Tests.
11.4 If the Software or any part of it being tested fails to pass its applicable
Acceptance Tests after two repeat Acceptance Tests are conducted then FS2
may by written notice to Thermeon elect at its option:
11.4.1 [*];
11.4.2 to accept the Software or part (the abatement being such amount
as taking into account the circumstances is reasonable); or
11.4.3 to reject the entire Software in which case FS2 may terminate
this Agreement at any time after rejection on written notice with
immediate effect, subject to the termination provisions set forth
in Section 21.1.1.
11.5 The issue of any interim Acceptance Notice on successful completion of the
Acceptance Tests for any particular part of the Software will not affect
FS2's right to reject any accepted part if any later part of the Software
fails to pass the Acceptance Tests.
11.6 Acceptance of the Software will occur or be deemed to occur on the earliest
of either:
11.6.1 the date of successful completion of all stages of the Acceptance
Tests as acknowledged by FS2 signing an Acceptance Notice; or
11.6.2 the date the Software is first put into operational use by FS2.
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11.7 The Acceptance Test procedure will be documented in the jointly agreed
Service Level Agreement.
12. Inspection
12.1 Subject to providing Thermeon with reasonable prior written notice (not
less than seventy two (72) hours) FS2 will be entitled at all times during
the Term to inspect and examine the development techniques and workmanship
being used in the performance of the Services. Such inspection and
examination will not be deemed to relieve Thermeon from any of its
obligations under this Agreement.
12.2 Thermeon will permit FS2 or a Third Party, not in direct competition with
Thermeon, of its choice to carry out audits at Thermeon's premises from
which the Service is provided in order to check processes defined under the
provision of Service. The FS2 Project Representative will give not less
than seventy two (72) hours written notice to Thermeon before commencing
such audit.
13. Payment Terms
13.1 Subject to compliance by Thermeon with the obligations referred to in this
Agreement FS2 shall make payment to Thermeon in accordance with the
provisions of [*].
13.2 Thermeon shall be entitled to subscribe for 1% of the authorised share
capital of FS2 at par value. Thermeon will receive rights in parallel with
other founder shareholders.
13.3 In addition to the payments referred to in clause 13.1 Thermeon shall
subject to clause 21 and 13.4 receive the licence and incentive fees
referred to in [*].
13.4 In the event that the Licensed Software ceases to be used by FS2 at any
time during the term of this Agreement the obligation to make the payments
detailed in [*] shall cease forthwith.
14. Ownership rights
14.1 All right, title and interest and Intellectual Property in the
Deliverables, except that vested in third party software necessary for the
Project, shall at all times vest in FS2 unless Thermeon have used
pre-existing software or provided Licensed Software in which Thermeon
already holds Intellectual Property Rights. Both parties to this Agreement
agree to identify and record the respective Intellectual Property Rights
within 90 days of the date of signing this Agreement.
14.2 Insofar as it may be necessary to give effect to the provisions of
sub-clause 14.1 Thermeon hereby assigns with full title guarantee all
present and future Intellectual Property it may now or in the future own in
the Deliverables (excluding pre-existing software or provided Licence
Software in which Thermeon already holds Intellectual Property Rights).
13
14.3 Thermeon unconditionally, irrevocably and in perpetuity waives all moral
and author's rights and rights of a similar nature under the laws of any
jurisdiction in respect of the Deliverables (excluding pre-existing
software or provided Licence Software in which Thermeon already holds
Intellectual Property Rights) and any other copyright arising as a
consequence of the Project and will procure such a waiver on the same terms
from each member of the Personnel.
14.4 At any time at the request of FS2, Thermeon will at its expense do all such
things and sign all documents or instruments reasonably necessary to enable
FS2 to obtain its rights under sub-clauses 14.1 to 14.3.
15. Warranties
15.1 Thermeon warrants and undertakes:
15.1.1 that the Deliverables shall be original works and shall not
infringe the Intellectual Property Rights or other rights of any
third party;
15.1.2 that the Service will meet the Specification and/or subsequent
amendments to the Specification and the Service Level Agreement;
15.1.3 that it will use its best endeavours in accordance with
acceptable computing practice to make good with all possible
speed at its own expense any breach of the warranties referred to
in sub-clause 15.1.1 in any portion of the Software and/or System
and/or Service which may be identified in the Acceptance Notice
and/or is notified to Thermeon during a twelve (12) month period
after the commencement of such Service;
15.1.4 that it is not aware as at the date of this Agreement of anything
which might or will adversely affect its ability to perform its
obligations under this Agreement;
15.1.5 that as at the Acceptance Date:
15.1.5.1 the Software will run on the Equipment;
15.1.5.2 the design of the Software will be suitable to fulfil the
matters specified in the Project Definition Paper and will
be properly functioning and fit for provision to end users
and the Software will perform and function in accordance
with the Specification;
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15.1.6 that the Documentation will enable suitably qualified personnel
of FS2 to make proper use of the Software;
15.1.7 that the Deliverables will conform to all applicable health and
safety regulations and other applicable laws existing at the date
of this Agreement;
15.1.8 that it has the power to enter into this Agreement and has
obtained all necessary approvals to do so;
15.1.9 that it will use all reasonable endeavours to ensure that the
Software supplied and installed on the Equipment will be free of
computer viruses and will have undergone rigorous virus checking
procedures in line with current industry best practice and will
provide details to FS2 of such checking procedures;
15.1.10 that the Software and the Equipment will comply with all
statutory requirements and regulations and all codes of conduct
relating thereto including all relevant British Standards (or
equivalent) agreed in writing by FS2;
15.1.11 that the Software will be free from material errors defects or
faults (latent or otherwise) including (without limitation)
design faults or software program faults the Software will
provide the facilities functions and standards of performance set
out in the Project Definition Paper.
15.2 Without prejudice to any other rights and remedies of FS2 Thermeon will be
responsible, without charge to FS2, for rectifying within a reasonable
period of time by repair, or at Thermeon's option by supply of a
replacement, any defect which under proper use, care and maintenance
appears in the Deliverables.
16. Software Maintenance
The parties will enter into the Software Maintenance Agreement within 90 days of
the date of this Agreement.
17. Indemnity
17.1 Thermeon will indemnify FS2 against all costs, claims, demands, expenses
and liabilities to the extent the Deliverables or any of them infringe the
Intellectual Property Rights of any third party.
17.2 If either FS2's possession or use of the Deliverables is held by a court of
competent jurisdiction to constitute an infringement of a third party's
Intellectual Property Rights or Thermeon is advised by legal counsel that
such possession or use is likely to constitute such an infringement,
Thermeon will without prejudice to any other rights and remedies of FS2
promptly and at its own expense and at FS2s option:
15
17.2.1 obtain for FS2 the right to continue using the Deliverables; or
17.2.2 modify or replace the Deliverables (without detracting from the
functionality specified in the Specification) so as to avoid
infringement.
17.3 Whenever Thermeon is required to indemnify FS2 under the terms of this
Agreement the indemnity is conditional upon FS2 (i) notifying Thermeon
promptly upon becoming aware of any matter or claim to which the indemnity
relates; (ii) not making any admission or settlement in respect of such
matter or claim without the prior consent of Thermeon (such consent not to
be unreasonably withheld or delayed) provided that if FS2 intends to make
any admission or settlement on grounds that Thermeon has unreasonably
withheld or delayed its consent it shall first give Thermeon at least 21
days prior notice of that intention; and (iii) allowing Thermeon, where
appropriate to have conduct of negotiations and/or proceedings relating to
such matter or claim or, where it is not appropriate for Thermeon to have
conduct of such negotiations and/or proceedings, FS2 complying with
Thermeon's reasonable request in the conduct of any such negotiations
and/or proceedings.
18. Confidentiality
18.1 For the purposes of this clause "Confidential Information" means all
information (whether commercial, financial, technical or otherwise)
relating to the disclosing party, its Sub-Contractors, other customers and
suppliers, disclosed to or otherwise obtained by the recipient party under
or in connection with the Project and this Agreement and which is
designated as being confidential or which is by its nature clearly
confidential. For the avoidance of doubt the source code of the Software is
the Confidential Information of FS2.
18.2 Each party undertakes in respect of Confidential Information for which it
is the recipient:
18.2.1 to treat such information as confidential;
18.2.2 not without the disclosing party's prior written consent to
communicate or disclose any part of such information to any
person except:
18.2.2.1 only to those employees, agents, Sub-Contractors and other
suppliers on a need to know basis who are directly involved
in the Project;
18.2.2.2 the recipient's auditors, professional advisers and any
other persons or bodies having a legal right or duty to have
access to or knowledge of the Confidential Information in
connection with the business of the recipient;
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18.2.3 to ensure that all persons and bodies mentioned in clause 18.2.2
are made aware, prior to disclosure, of the confidential nature
of the Confidential Information and that they owe a duty of
confidence to the disclosing party and to use all reasonable
endeavours to ensure that such persons and bodies comply with the
provisions of this clause;
18.2.4 not to use or circulate such information within its own
organisation except to the extent necessary for the purposes of
the Project.
18.3 The obligations in this clause will not apply to any Confidential
Information:
18.3.1 in the recipient's possession (with full right to disclose)
before receiving it; or
18.3.2 which is or becomes public knowledge other than by breach of this
clause; or
18.3.3 independently developed by the recipient without access to or use
of the Confidential Information; or
18.3.4 lawfully received from a third party (with full right to
disclose).
18.4 Nothing in this Agreement will prevent Thermeon at any time from using for
any purpose it thinks fit any know-how or experience including programming
tools, skill and techniques, gained or arising from the performance of the
Project, subject always to complying with the obligations in this clause in
respect of the Confidential Information of FS2.
19. Personnel
19.1 Thermeon and FS2 will use all reasonable endeavours to maintain continuity
in respect of the Personnel for the duration of the Term.
19.2 Thermeon will ensure that all Personnel comply with all relevant safety
security and on site regulations specified in writing from time to time by
FS2 for Personnel working on FS2's premises.
19.3 FS2 and Thermeon shall ensure that no Intellectual Property in the
Deliverables will vest in any Personnel.
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19.4 FS2 will not solicit any employees or Sub-Contractors of Thermeon directly
for FS2 or in connection with the operation of the BSP Travellink
Application for three years beyond the expiration or termination of the
Term without the express written consent of Thermeon .
20. Liability and Insurance
20.1 Subject to the provisions of clauses 15.1.1, 17 and 18 neither party shall
be liable to the other for any indirect or consequential loss or damage
(including loss of profit business or anticipated savings) however arising
regardless of whether such losses were foreseeable. Nothing in this
Agreement limits liability for death or personal injury caused by
negligence.
20.2 Thermeon will maintain in force at all times insurance with a reputable
insurance company covering third party liability, employer's liability and
errors and omissions insurance and its other liabilities under this
Agreement of at least $1,000,000 per occurrence or series of connected
occurrences.
21. Termination
21.1 Either party may terminate this Agreement following the expiration of the
period of 45 days after delivery to the other party of written notice in
the event of any of the following if not remedied:
21.1.1 if either party is guilty of a material breach of the terms of
this Agreement which breach if capable of remedy is not remedied
by the party in breach within 45 days of receipt in writing of
notice of such breach;
21.1.2 if the other party ceases to carry on its business;
21.1.3 if a receiver, administrator or similar officer is appointed over
all or any part of the assets or undertaking of the other party;
21.1.4 if the other party makes any arrangement for the benefit of its
creditors; or
21.1.5 if the other party goes into liquidation save for the purposes of
a genuine amalgamation or reconstruction.
21.2 Upon termination of this Agreement for whatever cause, Thermeon shall
immediately deliver to FS2 any Confidential Information belonging to FS2 as
well as all Software or such part thereof as may have been created and the
Documentation.
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21.3 Subject to Clause 13.4 termination of this Agreement will not affect any
rights of the parties accrued to them up to the date of termination, or any
rights and obligations which are intended to survive termination including
the license and incentive fees detailed in [*].
21.4 Upon termination of this Agreement both parties will mutually cooperate
with each other on commercial terms to be agreed at the time to reach and
agree on a proper Exit Management Strategy where both parties shall act
reasonably at all times.
22. Force Majeure
22.1 Neither party will be liable for any delay in performing or failure to
perform any of its obligations under this Agreement caused by events beyond
its reasonable control ("Force Majeure Event").
22.2 The party claiming the Force Majeure Event will promptly notify the other
in writing of the reasons for the delay or stoppage (and the likely
duration) and will take all reasonable steps to overcome the delay or
stoppage.
22.3 If that party has complied with clause 22.2 its performance under this
Agreement will be suspended for the period that the Force Majeure Event
continues, and the party will have an extension of time for performance
which is reasonable and in any event equal to the period of delay or
stoppage. As regards such delay or stoppage:
22.3.1 any costs arising from the delay or stoppage will be borne by the
party incurring those costs;
22.3.2 either party may, if the delay or stoppage continues for more
than 60 continuous days, terminate this Agreement with immediate
effect on giving written notice to the other and neither party
will be liable to the other for such termination; and
22.3.3 the party claiming the Force Majeure Event will take all
necessary steps to bring the Event to a close or to find a
solution by which the Agreement may be performed despite the
Event.
23. Notices
All notices to be given under this Agreement will be in writing and will be sent
to the address of the recipient shown on the front page of this Agreement or any
other address the recipient may designate by notice given in accordance with
this clause. Notices may be delivered personally, by first class pre-paid letter
or facsimile transmission. Notices will be deemed to have been received:
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23.1 by hand delivery-at the time of delivery;
23.2 by first class post-48 hours after the date of mailing;
23.3 by facsimile transmission-immediately on transmission provided a
confirmatory copy is sent by first class pre-paid post or by hand by the
end of the next business day.
24. Waiver
No delay or failure by either party to exercise any of its powers, rights or
remedies under this Agreement will operate as a waiver of them nor will any
single or partial exercise of any such powers, rights or remedies preclude any
other or further exercise of them. Any waiver to be effective must be in
writing. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law.
25. Severability
If any part of this Agreement is found by a court of competent jurisdiction or
other competent authority to be invalid, unlawful or unenforceable then such
part will be severed from the remainder of this Agreement which will continue to
be valid and enforceable to the fullest extent permitted by law.
26. Order of precedence
In the event of any conflict or inconsistency between the various documents
forming this Agreement the body of this Agreement shall take precedence over the
Schedules.
27. Whole agreement
27.1 This Agreement is the complete and exclusive statement of the agreement
between the parties relating to the subject matter of this Agreement and
supersedes all previous communications, representations and other
arrangements, written or oral.
27.2 Except as otherwise permitted by this Agreement, no change to its terms
will be effective unless it is in writing and signed by persons authorised
on behalf of both parties.
28. Third Party Rights
No one who is not a party to this Agreement is intended to or may benefit from
its terms because of the Contracts (Rights of Third Parties) Xxx 0000.
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29. Assignment
Either party may transfer or assign this Agreement with the prior written
consent of the other party such consent not to be unreasonably withheld.
30. Term
This Agreement shall commence on the date of signature and continue for a period
of five years with either party having an option to renew for a further five
years subject to the terms of this Agreement.
31. Governing Law
This Agreement will be construed in accordance with and governed by the law of
England and Wales. Any dispute arising shall be referred to an arbitrator
appointed jointly by the parties or by the President of the Law Society of
England and Wales in the event of a failure to agree. Headings have been
included for convenience only and will not be used in construing any provision
in this Agreement.
32. Payments
32.1 All payments pursuant to this Agreement shall be made by FS2 within thirty
(30) days of the due date at the end of the quarter or other period to
which they relate. If any payment is required to be made on a day that is
not a Business Day, it may be made on the next following Business Day.
32.2 If FS2 fails to pay in full on the due date any amount which is payable to
Thermeon pursuant to this Agreement then, without prejudice to clause 21,
the amount outstanding shall bear interest, both before and after any
judgment, at two (2) percent per annum over the Citibank US Dollar prime
lending rate from time to time from the due date until payment is made in
full.
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AS WITNESS the hands of the parties to this Agreement or their duly authorised
representatives on the date written on page 1 of this Agreement
EXECUTED AS A DEED by )
FS2 Limited acting by:- )
Director
Director/Secretary
EXECUTED AS A DEED by )
Thermeon Corporation acting by:- )
Director
Director/Secretary
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