1
Exhibit 10.20
TECHNOLOGY LICENSING COMPANY, LLC
AND
FORTDOVE LIMITED
--------------------------
SOFTWARE LICENCE AGREEMENT
--------------------------
2
CONTENTS
CLAUSE PAGE
1. Definitions............................................................1
2. Licence to use the Software............................................4
3. The Licensor's Rights in the Software..................................6
4. Royalty Charges and Payment............................................7
5. Software Warranty......................................................7
6. Intellectual Property Rights Indemnity.................................9
7. Limitation of Liability...............................................10
8. Term, Termination and Effects of Termination..........................10
9. Escrow................................................................11
10. Non-Solicitation......................................................11
11. Joint Oversight Committee.............................................12
12. Dispute Resolution....................................................12
13. Confidentiality.......................................................13
14. General Provisions....................................................14
15. Counterparts..........................................................16
SCHEDULE A The Software and Products licensed under these terms and
conditions are as follows:....................................................18
SCHEDULE B Agreed form End User Sub-licence..................................24
SCHEDULE C Support and Maintenance Agreement.................................38
SCHEDULE D Definition of Europe..............................................51
SCHEDULE E Agreed From Escrow Agreement......................................53
SCHEDULE F Specifications....................................................68
SCHEDULE G Software/Products Capable of Sublicence..........................112
3
THIS SOFTWARE LICENCE AGREEMENT ("the Agreement") is made on the day of
2000
BETWEEN
(1) TECHNOLOGY LICENSING COMPANY LLC, with its principal place of business at
0 X. Xxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("the Licensor"); and
(2) FORTDOVE LIMITED, registered in England and Wales under company number
3841799 with its registered office at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X
0XX ("the Licensee")
1. DEFINITIONS
1.1 In this Agreement, the following words and phrases have these meanings:
"AMERICAS" means all countries and territories in continental North
America and continental South America (including Central America) and
includes any territories of the United States of America not forming part
of continental North America;
"BTI GROUP" means those travel agents which from time to time are party to
a partnership agreement with Business Travel International ("BTI"), a
Dutch registered company;
"CORPORATE TRAVEL SERVICES" means travel services provided to a business
entity's employees and/or contractors which are paid for or reimbursed by
such business entity which has contracted directly with Licensee or with a
travel agency, web portal, or other entity to provide such services;
"DELIVERY" (WITH "DELIVER" AND "DELIVERED" BEING CONSTRUED ACCORDINGLY)
means in respect of any Software Release the point in time from which such
Software Release is first used in a live environment with a Customer,
other than a test customer provided always that such Software shall be
deemed to be Delivered 3 months from the date upon which such Software is
first installed by the Licensee;
"EFFECTIVE DATE" means the date hereof, unless otherwise agreed in writing
between the parties;
"ENHANCEMENT" means changes to the Product that provide additional
features and/or functionality, expanding the capabilities of the Product,
or so significantly expand a function as to be considered a new function;
"ESCROW AGREEMENT" means an agreement for the deposit of the source code
relating to the Software in the form set out in Schedule E; "GROUP" means,
in relation to a company, that company and each subsidiary of the company
and its subsidiaries for the time being;
"XXXX XXXXXXXX GROUP" means the Group of companies of which Xxxx Xxxxxxxx
plc is the ultimate holding company, together with all its travel
franchisees;
"ICC" means Independent Computer Company Limited, which prior to the date
of this Agreement was contracted to distribute the TTG Software in part of
the Territory;
"IMPROVEMENTS" means new functionality that addresses areas that were not
covered in the Initial Software Release for the Product, or so
significantly expands a function as to be considered a new function;
4
"INTELLECTUAL PROPERTY" means all letters patent, trade marks and service marks,
registered designs, utility models, applications for any of the foregoing and
the right to apply therefor in any part of the world; design rights, copyrights,
topography rights, brand names, trade names, logos and business names and all or
any similar or equivalent rights arising or subsisting in any country in the
world;
"MODIFICATION" means changes to the Product that affect existing functionality,
usually including streamlining processes, revising screens for clarity and
similar changes; OFS CORPORATE SERVICES" means Corporate Travel Services
processed using OFS Software;
"OFS SERVICES" means travel services, other than OFS Corporate Services
processed using the OFS Software;
"OFS SOFTWARE" means the Software identified with the label "OFS" in Schedule A
hereto;
"OFS TERRITORY" means the United Kingdom, Ireland, Sweden, Norway, Denmark,
Finland, Estonia, Latvia and Lithuania;
"PRODUCT" means a logical grouping of Licensor's Software which is sold by a
specific product name. The Products licensed under this Agreement are listed in
Schedule A;
"SCHEDULE" means the Schedule(s) attached to and incorporated into this
Agreement;
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement of on or about even
date entered into between Xxxx Xxxxxxxx Plc, Xxxx Xxxxxxxx Services Limited,
WTT UK Limited, WT Technologies Inc and the Licensee for the establishment and
operation of the Licensee as a joint venture company;
"SOFTWARE" means the Products listed in Schedule A and related user and
training documentation, including all Software Releases provided by Licensor
from time to time;
"SOFTWARE RELEASE" means a complete or partial delivery of one or more Licensor
Products, usually on magnetic media but which may be transmitted electronically
at the Licensor's discretion, or otherwise as agreed between the Parties.
Software Releases shall include:
(a) Initial Software Release -- the initial delivery of the Product(s)
licensed hereunder;
(b) Upgrade Release (Upgrade) -- changes to the Product(s) delivered
after the Initial Software Release.
(c) Corrective Release (Fix) -- changes to the Product(s) delivered to
correct a bug that impairs normal operation of the Product(s), which
may be provided within an Upgrade or under a support agreement;
"SPECIFICATIONS" means the functional and technical specifications of the
Software, to include those functional and technical specifications which are to
be supplied by the Licensor within 6 months after the date of this Agreement
which shall be in a form and of a standard similar to those set out in Schedule
F, (if applicable). In any period during 6 months after the date of this
Software License Agreement where a relevant element of Software has no
specification available, the term "Specification" in respect of that element of
Software shall be deemed to refer to the level of performance and functionality
achieved
5
in the corresponding element of Software in use in the United States in a
SABRE environment at that time;
"SUPPORT AND MAINTENANCE AGREEMENT" means the document attached at Schedule
C to this Software Licence Agreement;
"TERRITORY" means the geographical areas and entities in which and to which
Newco has the exclusive right to provide services using the Software, as
provided in Clause 2. Reference to an entity as a "Territory" confers in
itself no grant of rights in respect of the geographical area in which that
entity is based;
"TTG SOFTWARE" means the Software products set out in Schedule A hereto,
other than those identified within the label "OFS";
"VALUE ADDED TAX" means value added tax as provided for in the UK Value
Added Tax Xxx 0000 and any other tax of a similar fiscal nature whether
imposed in the United Kingdom (instead of or in addition to value added
tax) or elsewhere;
"WORKING DAY(S)" means days when banks in London and Atlanta are open for
business excluding Saturday and Sunday;
"WTT" means WT Technologies Inc (soon to be known as TRX Inc) with its
principal place of business at 6W Xxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000.
1.2 In this Agreement, a reference to:
1.2.1 a "subsidiary" or "holding company" is to be construed in
accordance with Section 736 of the UK Companies Xxx 0000 and a
"subsidiary undertaking" or "parent undertaking" is to be
construed in accordance with Section 258 of the UK Companies Xxx
0000;
1.2.2 a statutory provision includes a reference to the statutory
provision as modified or re-enacted or both from time to time
before the date of this Agreement and any subordinate legislation
made or other thing done under the statutory provisions before
the date of this Agreement;
1.2.3 a document is a reference to that document as modified from time
to time;
1.2.4 a person includes a reference to a government, state, state
agency, corporation, body corporate, association or partnership;
1.2.5 a person includes a reference to that person's legal personal
representatives, successors and permitted assigns;
1.2.6 the singular includes the plural and vice versa unless the
context otherwise requires;
1.2.7 a clause or schedule, unless the context otherwise requires, is a
reference to a clause or a schedule of this Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
6
2. LICENCE TO USE THE SOFTWARE
2.1 The Licensor hereby grants to the Licensee a perpetual, irrevocable (save
as expressly provided herein), royalty bearing licence to use the TTG
Software to provide services or to sub-licence the TTG Software, (only as
expressly permitted under this Agreement) as follows:
2.1.1 to third parties in Europe (as defined in Schedule D attached
hereto), with such licence to be exclusive in Europe;
2.1.2 to any entity which is at least 50% owned within the Xxxx
Xxxxxxxx Group and is controlled by a company in the Xxxx
Xxxxxxxx Group with the exception of Rider Canada, with such
licence to be exclusive in respect of any such entity;
2.1.3 to a member of the BTI Group outside the Americas, with such
licence to be exclusive in respect of any such entity.
2.2 For the avoidance of doubt, the exclusivity granted to the Licensee under
clauses 2.1.2 and 2.1.3 above does not prevent the Licensor from
sub-licensing the TTG Software or from providing services using the TTG
Software in the geographic areas in which the entities referred to in
clauses 2.1.2 and 2.1.3 are situated with the exception of Europe. The
licence granted hereunder is subject to the terms and conditions of this
Agreement, including its termination provisions. The royalty payable is
specified under Clause 4 of this Agreement.
2.3 The Licensor hereby grants to the Licensee a perpetual, irrevocable (save
as expressly provided herein), royalty bearing licence to use the OFS
Software to provide OFS Corporate Services or to sub-licence the OFS
Software, (only as expressly permitted under this Agreement) as follows:
2.3.1 to third parties in Europe (as defined in Schedule D attached
hereto), with such licence to be exclusive in Europe;
2.3.2 to any entity which is at least 50% owned within the Xxxx
Xxxxxxxx Group and is controlled by a company in the Xxxx
Xxxxxxxx Group with the exception of Rider Canada, with such
licence to be exclusive in respect of any such entity;
2.3.3 to a member of the BTI Group outside the Americas, with such
licence to be exclusive in respect of any such entity.
2.4 For the avoidance of doubt, the exclusivity granted to the Licensee under
clauses 2.3.2 and 2.3.3 above does not prevent the Licensor from
sub-licensing the OFS Software or from providing services using the OFS
Software in the geographic areas in which the entities referred to in
clauses 2.3.2 and 2.3.3 are situated with the exception of Europe. The
licence granted hereunder is subject to the terms and conditions of this
Agreement, including its termination provisions. The royalty payable is
specified under Clause 4 of this Agreement.
2.5 The Licensor hereby grants to the Licensee a perpetual, irrevocable (save
as expressly provided herein), royalty-bearing non-exclusive licence to use
the OFS Software to provide OFS Services (as defined herein) and to
sub-license the OFS Software (only as expressly permitted under this
Agreement), to any third party, anywhere in the world, provided that the
Licensee may only perform such OFS Services wholly from a location within
the OFS Territory.
7
2.6 The Licensor, nor any member of the Licensor's Group shall not, nor shall
license or permit any third party to carry out OFS Services from within the
OFS Territory. For the avoidance of doubt, the licence granted to the
Licensee under clause 2.5 above shall not prevent the Licensor from using
the OFS Software to provide OFS Services to clients located anywhere in the
world, including within the OFS Territory, provided that such OFS Services
are provided and processed wholly from a location outside the OFS
Territory.
2.7 Except as expressly provided herein (including under Clause 2.8), the
Licensor shall not grant a licence of the TTG Software to or permit any
third party to carry out services using the TTG Software in the Territory
and neither shall the Licensor or any member of its Group provide such
services or in any way exploit or commercialise the TTG Software in the
Territory.
2.8 To the extent that the Licensee reasonably requires to use any part of the
TTG Software for the proper provision of OFS Services, the Licensor hereby
grants to the Licensee a perpetual irrevocable, (save as expressly
provided herein) royalty bearing, non-exclusive licence to use such part of
the TTG Software to provide such OFS Services, not withstanding that such
services are performed outside the Territory granted to the Licensee under
Clause 2.1. Likewise, to the extent that the Licensor reasonably requires
to use any part of the TTG Software for the proper provision of OFS
Services, it is permitted to use the TTG Software within the exclusive
Territory granted to the Licensee under Clause 2.1, notwithstanding the
exclusivity granted to the Licensee under that subclause.
2.9 Except as expressly provided herein, the Licensor shall not grant a licence
of the OFS Software for the purpose of carrying out OFS Corporate Services
or permit any third party to carry out OFS Corporate Services using the OFS
Software in the Territory and neither shall the Licensor or any member of
its Group provide such services or in any way exploit or commercialise the
OFS Software in relation to OFS Corporate Services in the Territory.
2.10 The Licensor agrees with the Licensee that it will be bound by and shall
comply with the obligations and restrictions placed upon WTT under Clause
10 of the Shareholders Agreement, as if it were named as WTT thereunder. To
the extent that Clause 10 of the Shareholders Agreement incorporates
exceptions to the restrictions placed on the Licensor and the Licensee
under this Clause 2, such exceptions are deemed to be incorporated herein.
Further, to the extent that the provisions of Clause 10 of the Shareholders
Agreement amend or are inconsistent with the provisions of this Clause 2,
the provisions of Clause 10 of the Shareholders Agreement shall prevail and
shall be deemed to be incorporated herein. For the purposes of this
Agreement, any deemed incorporation of a provision of the Shareholders
Agreement under this Clause shall survive any termination of the
Shareholders Agreement.
2.11 The licence and exclusivity granted under this Agreement applies to the
Initial Software Release and all subsequent Software Releases supplied
under this Agreement, including any and all Upgrade Releases provided by
Licensor to Licensee which are accepted by Licensee, which shall replace
the relevant part(s) of the Software previously licensed.
2.12 The exclusivity granted under this Clause 2 may be withdrawn by the
Licensor in respect of all or any part of the Software, in the
circumstances provided for under Clauses 16.4.4(a) and 16.4.7 and 16.4.8 of
the Shareholders Agreement.
2.13 Notwithstanding the exclusivity granted to the Licensee under Clause 2.1,
the Licensor a member of Licensor's Group may continue to support any
sub-licences granted and bureau
8
services provided by ICC under contracts in existence at the date of
this Agreement, provided that the Licensor shall not permit ICC to
enter into any new-licences or service bureau agreements after the
date hereof and provided further that the Licensor shall deliver to
the Licensee a schedule of such ICC sub-licences/service bureau
agreements within 30 days of the date hereof.
2.14 The Licensor shall provide and license to the Licensee such know-how
as the Licensee agrees with the Licensor shall be provided and
licensed in order to install the Software and commence operation of
the systems and during the implementation of any new Product. Each
party shall bear all its costs and expenses in any such provision and
licensing of know-how to it by the Licensor unless otherwise agreed
in writing by the Parties.
2.15 The Licensor shall provide the Licensee with technical support or
education services for the Software licensed in this Agreement
pursuant to the Support and Maintenance Agreement.
2.16 Subject to clause 14.5 hereunder the Licensee may not, and shall
procure that sub-licensees do not, sub-license, lease or assign any
of the Software or Products for money or any other consideration or
free of charge, except with the express prior written consent of the
Licensor, provided that the Software and/or Products set out at
Schedule G (as amended from time to time by the written agreement of
the Parties) may be sublicensed by the Licensee without the prior
written consent of the Licensor.
2.17 The Licensee shall ensure that the sub-licence of any Software
permitted under this Software Licence Agreement shall be subject to
the express condition that any end-user of properly sublicensed
Software which conducts business as a travel agent or agency may not
sublicense such Software to any other travel agent or agency other
than such travel agent's subsidiaries or affiliates within the same
Group. The Licensee may permit such travel agents to sub-license the
Software to its franchisees, only with the consent of the Licensor
such consent being deemed to be granted in respect of any
sub-licences granted by the Xxxx Xxxxxxxx Group to its current
franchisees at the date of execution of this Agreement and as agreed
from time to time thereafter. Any sub-licence of the Software by the
Licensee shall be on the terms of the sub-licence contained in
Schedule B unless otherwise agreed in writing between the Parties. In
the event of any conflict between the terms of this Agreement and the
sub-licence terms, the terms of this Agreement shall prevail.
3. THE LICENSOR'S RIGHTS IN THE SOFTWARE
3.1 The Licensee acknowledges that the Software and all Intellectual
Property rights therein are proprietary to the Licensor or its
licensors and protected by copyright law and international treaty.
The Licensee acquires only the exclusive right to use the Software
within the Territory. Except as stated in this Agreement, the
Licensor is not transferring any rights of copyright or ownership of
any Intellectual Property in the Software or related documentation to
the Licensee. Licensor shall at all times retain all rights, title
and interest in the Software related documentation and any
derivatives thereof.
3.2 The Licensee undertakes not to cause or permit the reverse
engineering, disassembly, or decompilation of the Software, except to
reproduce machine-readable object code portions for backup purposes
and installation of new releases of Software and except as provided
under section 50B of the Copyright, Designs and Patents Xxx 0000. The
Licensee will not copy or permit any of the Software to be copied by
any means, except for bona fide internal security, installation, or
backup purposes as provided under section 50A of the Copyright,
9
Designs and Patents Xxx 0000, or for reasonable operational purposes
(provided always that where copied for such reasonable operational
purposes such copying shall be pursuant to a reasonable operational
requirement upon the Licensee and shall be done only where strictly
necessary and in good faith). Any copies made shall include all
copyright or proprietary notices. The restrictions in this clause are
imposed under penalty of termination but not exclusive of Licensor's
other remedies.
3.3 Copyright subsists in all Software including documentation and the
Licensee will not delete, remove, alter or conceal any proprietary
marks, notices or restrictions on the Software unless otherwise agreed
in writing between the Parties.
3.4 The Licensee will inform all relevant employees, agents,
sub-contractors and sub-licensees that the Software constitutes the
Licensor's or its licensors' confidential information, and that all
Intellectual Property rights in it belong to Licensor or its
licensors, and the Licensee will take all necessary steps to ensure
that the Licensee's employees agents, sub-contractors and
sub-licensees comply with the provisions of this clause.
3.5 The Licensee agrees to indemnify the Licensor in respect of any losses
or expenses incurred by the Licensor as a result of the Software
being obtained by any third party whether through deliberate misuse of
the Software object codes by the Licensee or through the breach by the
Licensee of this Agreement or through wilful negligence.
4. ROYALTY CHARGES AND PAYMENT
4.1 Use of the Software is conditional on payment by the Licensee of the
royalty. The royalty payable for use of the Software shall reflect the
fair market value of the licence granted hereunder. The parties shall
use all reasonable endeavours to agree on the amount of the royalty by
1 April 2000. In the event that the parties fail to agree on the
amount of the royalty by such date, either party may refer the matter
to an independent expert for determining the amount of the royalty.
4.2 The royalty and all the Licensor's charges in respect of any services
rendered by it are exclusive of Value Added Tax and any similar taxes.
All such taxes are payable by the Licensee and will be applied in
accordance with UK legislation in force at the tax point date.
4.3 Subject to Clause 4.1, all invoices will be payable within 30 days
from the invoice date. Payments which are not received within 30 days
from the invoice date will be considered overdue and will remain
payable by the Licensee and the Licensor shall be entitled to charge
interest for late payment from the date payable at the rate of 2%
above Barclays Bank Plc Base Rate both after and before any judgement.
This interest will accrue on a daily basis and be payable on demand.
If, after a written reminder by the Licensor, any invoice remains
payable after 60 days from the date of invoice without escalation to
the Management Representatives, the Licensor may at any time
thereafter terminate this agreement upon written notice to the
Licensee without prejudice to its remaining rights hereunder.
4.4 If the Licensor becomes entitled to terminate this Agreement for any
reason, any sums then due by the Licensee to the Licensor will
immediately become payable in full.
5. SOFTWARE WARRANTY
5.1 The Licensor warrants to the Licensee that it has the right to license
the Software as provided in this Agreement. The Licensor warrants that
for a period six months from Delivery of the
10
Initial Software Release to Licensee, or from the date of Delivery of a
subsequent Upgrade Release only where such Upgrade Release constitutes a
major version release evidenced by the attachment to such Upgrade Release
of a new Product version number ("the Warranty Period"), the Software shall
operate substantially in accordance with the Specifications including any
subsequent Modifications to the Specifications agreed to by both parties.
The Licensor warrants that upon Delivery to the best of its knowledge the
Software shall be free of any and all "time bombs" or disabling mechanisms
and the Licensor agrees to pay for any data lost as a result of the same.
The Licensor further warrants that its quality testing procedures include
testing for software viruses using such virus testing utilities as are
agreed from time to time. If during the Warranty Period, the Software does
not operate substantially in accordance with the Specifications and if the
Licensor is unwilling or unable to correct all material deficiencies,
incompatibilities, defects or errors identified in the Software within a
reasonable time frame acceptable to both parties, the Licensor may provide
the Licensee with a modified version of the Software that does not contain
such material deficiencies, incompatibilities, defects or errors. In the
event that the Licensor is unable to correct all material deficiencies,
incompatibilities, defects or errors, either through remedial action or the
provision of a new copy of the Software the Licensor shall be in material
breach of this Agreement. Without prejudice to the other remedies of the
Licensee hereunder and elsewhere, the Licensor shall immediately refund to
the Licensee the related royalty paid by the Licensee for the Software.
5.2 The Licensee shall notify the Licensor in writing of failure of the
Software to operate in conformity with the Specifications within 10 (ten)
Working Days following discovery thereof. Provided that the Licensee
notifies the Licensor of such failure prior to expiration of the Warranty
Period, the Licensor will investigate and take corrective action in
respect of material non-conformities as expeditiously as is possible in
the circumstances. If any Software fails to operate in accordance with the
Specifications, the Licensor will use all reasonable efforts to correct
the Software so that it will operate substantially in accordance with the
Specifications. If the Licensor determines that the reported error
non-conformity is not due to any error or defect in the Software supplied
by the Licensor and is not due to any other fault or negligence of the
Licensor or its supplier, the Licensee shall compensate the Licensor for
its services on a time and materials basis at the Licensor's reasonable
rates.
5.3 Licensor further warrants that the disks (if any) on which the Software is
provided will be free from defects in materials and workmanship under
normal use and service during the Warranty Period.
5.4 This clause constitutes the only warranty provided by the Licensor in
respect of the Software and the Licensor's obligations set out in this
Agreement replace all undertakings, guarantees, and warranties, express or
implied, in law or otherwise, including any warranty of satisfactory
quality or fitness for a particular purpose, which the Licensee must have
sole responsibility for determining. Without prejudice to the warranty
given by the Licensor hereunder, the Licensee acknowledges in this
connection that:
(a) The Software cannot be tested in advance in every possible
operating combination and environment;
(b) It is not possible to produce Software known to be error-free in
all circumstances;
(c) Not all errors can be rectified.
11
5.5 The Licensor shall not be liable to the Licensee for any claim or defect
arising from (i) any alteration or modification of any Software which is
not provided or approved by Licensor; (ii) problems with the Licensee's
equipment or with other software not provided by Licensor; (iii) any other
cause beyond Licensor's control.
5.6 EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE, NO EXPRESS OR IMPLIED WARRANTY
IS MADE BY LICENSOR WITH RESPECT TO THE PRODUCTS, ANY SOFTWARE RELEASE, THE
DOCUMENTATION OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE. WITHOUT PREJUDICE TO
THE WARRANTY GIVEN IN CLAUSE 5.1 THAT THE SOFTWARE WILL OPERATE
SUBSTANTIALLY IN ACCORDANCE WITH THE SPECIFICATIONS, AS THE SAME MAY BE
MODIFIED BY AGREEMENT, THE LICENSOR DOES NOT WARRANT THAT ALL ERRORS IN THE
SOFTWARE CAN OR WILL BE CORRECTED.
5.7 The Licensee warrants to the Licensor that it will treat the Software as
Confidential Information (as provided in Clause 13).
6. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
6.1 Subject to the terms of this clause, and at the Licensor's own expense, the
Licensor will defend or cause to be defended or, at the Licensor's option,
settle any claim or action brought against the Licensee in respect of any
claimed infringement of any Intellectual Property right by the Software or
by the grant of this License ("Claim"). Subject to the other conditions of
this clause, the Licensor will indemnify the Licensee against any
liability, damage or expense with respect to any Claim, provided that the
Licensee:
(a) Notifies the Licensor promptly in writing of the Claim immediately
on becoming aware of it;
(b) Grants sole control of the conduct of the defence, settlement or
appeal of the Claim to Licensor;
(c) Gives the Licensor complete and accurate information to the best
of its knowledge and full co-operation and assistance to enable
the Licensor to settle or defend the Claim; and
(d) Has complied fully with the terms of this Agreement.
If the Licensee desires to have separate legal representation in any such
Claim, the provisions of this clause shall not prevent Licensee's
participation with Licensor in the Claim, provided that Licensee will be
responsible for the costs and fees of its separate legal representation,
and provided that Licensor shall continue to have full control of the
conduct of the Claim.
6.2 The Licensor shall have no liability under this clause for any alleged or
actual infringement arising from
(a) The combination of the Software with any other software not
supplied by Licensor; or
(b) The modification or alteration of the Software unless the
modification or alteration was made, supplied or approved
expressly by Licensor.
12
6.3 If any part of the Software should become the subject of any Claim, or if a
court judgement is made that the Software does infringe, or if the use or
licensing of any part of the Software is restricted, the Licensor shall, at
the Licensor's option and expense:
(a) Either obtain or procure for the Licensee the right to continue
to use the Software; or
(b) Replace or modify the Software so that it becomes non-infringing,
but substantially functionally equivalent; or
(c) If the use of the Software is prevented by permanent injunction
and neither of the above options (a) or (b) is reasonably
possible or effective, the Licensor shall accept its return and
terminate the Agreement and refund to the Licensee an amount
equal to the sum paid by the Licensee for the Product or Software
Release, without prejudice to any other right the Licensee shall
have under this Agreement.
6.4 In no circumstances will the Licensor be liable for any costs or expenses
incurred by the Licensee without the Licensor's written authorisation.
7. LIMITATION OF LIABILITY
7.1 The Licensee agrees that the Licensee has accepted these terms and
conditions in the knowledge that the Licensor's liability is limited and
that the licence fee and charges payable have been calculated accordingly.
7.2 The Licensor's total liability arising in connection with this Agreement
(including liability for interest and costs) will not exceed in aggregate
the total licence fee paid by the Licensee under this Agreement except in
the case of liability for death or personal injury caused by the Licensor's
negligence, which will not be subject to a financial limit.
7.3 Except as expressly stated in this clause and elsewhere in this Agreement,
any liability by the Licensor for any breach of this Agreement will be
limited in the aggregate of damages, costs, fees and expenses to the total
licence fees paid or due to be paid by the Licensee under this Agreement.
For the avoidance of doubt, the limitation contained in this Clause shall
not apply to the indemnity given by the Licensor under Clause 6, subject to
its terms.
7.4 Except as expressly stated in this Agreement, neither the Licensor nor its
officers, employees, agents or sub-contractors shall be liable to the
Licensee in connection with the Licensor's performance of this Agreement or
the Licensee's use of the Software. In no event will the Licensor, its
officers, employees, agents or sub-contractors be liable to the Licensee
for special, indirect or consequential damages arising out of this
Agreement or the breach thereof, or arising out of the Licensee's
possession of, use of or inability to use the Software or any part thereof,
including but not limited to any damages for loss of profits or arising
from loss of data or unfitness for use even if that loss or damage was
reasonably foreseeable or either party was aware of the possibility of that
loss or damage arising, and whether such damages are based in contract,
tort, negligence, strict liability or otherwise.
8. TERM, TERMINATION AND EFFECTS OF TERMINATION
8.1 This Agreement shall be effective on the Effective Date and shall continue
indefinitely unless terminated as provided in this Clause.
13
8.2 This Agreement shall terminate upon the splitting of the assets of Newco,
as provided under Clause 17.5 of the Shareholders Agreement and shall be
replaced by a non-exclusive licence of the Software, to be granted to the
successor company/ies of the relevant assets.
8.3 This Agreement may be terminated immediately by notice in writing:
(a) By the Licensor, for the Licensee's material breach in the
circumstances set out in Clause 4.3;
(b) By either of the Licensor or Licensee if the other party is in
material breach of any of its obligations under this Agreement
(other than under Clause 8.2(a) above and fails to remedy the
breach (if capable of remedy) within a period of 30 days after
written notice of such breach.
(c) By either of the Licensor or Licensee if the other party is
involved in any legal proceedings concerning its solvency, or
ceases trading, or commits an act of bankruptcy or is adjudicated
bankrupt or enters into liquidation, whether compulsory or
voluntary, other than for the purposes of an amalgamation or
reconstruction, or makes an arrangement with its creditors or
petitions for an administration order or has a receiver or
manager appointed over all or any part of its assets or generally
becomes unable to pay its debts within the meaning of Section 123
or Section 268 of the Insolvency Xxx 0000 or equivalent
circumstances occur in any other jurisdiction.
8.4 Any termination of this Agreement will be without prejudice to any other
legal remedies, accrued rights or outstanding liabilities of either of the
parties at the date of termination.
8.5 If this Agreement is terminated for any reason, the Licensee shall satisfy
the Licensor that the Licensee has ceased to use the Software and has
deleted the Software and all copies of any part of the Software from the
Licensee's systems and that the Licensee can no longer reproduce the
Software in any way, and the Licensee shall return to the Licensor
immediately all related documentation or other tangible property in the
Licensee's possession belonging to Licensor, including all copies of the
Products or Software Releases.
8.6 Such provisions of this Agreement as are required to survive its
termination or expiry in order to give full force and effect to the rights
and obligations of the parties hereunder shall be deemed to so survive.
9. ESCROW
The parties shall use their best endeavours to enter into the Escrow
Agreement in the form set out in Schedule E hereto within 30 days of the
date of this Agreement, provided that no changes shall be made to the form
of the Escrow Agreement save such as are strictly necessary to satisfy the
requirements of Fort Xxxx as contracting party to that document and on
extension shall be permitted to the 30 day period save as is strictly
necessary to accommodate the requirements of Fort Xxxx.
10. NON-SOLICITATION
During the Term neither party shall employ, solicit or make any offers to
employ any employees used by the other in connection with the performance
of the Services, without the prior written consent of the other, which
consent shall not be unreasonably withheld. The
14
non-breaching party shall be entitled, in addition to any other remedies
it may have at law or in equity, to a payment from the party in breach of
this Clause in an amount equal to three months' salary of any employee
that party employs, solicits or offers to employ in breach of this
Clause.
11. JOINT OVERSIGHT COMMITTEE
11.1 JOC Procedures: The following representatives will comprise a joint
oversight committee (the "JOC") which will meet as agreed necessary. The
functions of such committee, among other things, will be to provide
Product direction, review and analyze changed in the market, prioritize
resources to improve performance of the parties' obligations hereunder,
review and analyze the performance of the parties, and to review
recommendations and suggestions to enhance the performance of the
Products.
Licensor Designees(2): Xxxxx Xxxxxxx Xxxxx Xxxxxxxx
Licensee Designees(2): Xxxx Xxxxxxx Xxxx Xxxxx
11.2 If a JOC Member resigns or leaves its employer, the party with a vacancy
will promptly appoint a replacement.
11.3 JOC Procedures: All actions of the JOC will be subject to the following
process:
11.3.1 An equal number of appointed representatives from each party must
be in attendance for the JOC to conduct a meeting.
11.3.2 Each party hereby appoints the following individual as its
Management Representative for purposes of this Agreement:
Licensor: Trip Xxxxx
Licensee: Xxxxx Xxx
11.3.3 Thirty (30) days prior to replacing its Management
Representative, HR or Newco, as the case may be, shall notify the
other in writing identifying its proposed replacement.
12. DISPUTE RESOLUTION
12.1 Initial Procedures: The parties shall make all reasonable efforts to
resolve all disputes without resorting to litigation. If a dispute arises
between the parties, the JOC Representatives will attempt to reach an
amicable resolution. If either JOC Representative determines that an
amicable resolution cannot be reached, such JOC Representative shall
submit such dispute in writing to the Management Representatives (a
"Dispute Notice"), who shall use their best efforts to resolve it or to
negotiate an appropriate modification or amendment.
12.2 Escalation: Except as otherwise provided in this Agreement, neither party
shall be permitted to bring proceedings against the other (save for
injunctive relief) until the earlier of (i) the date that, after
commencing good faith negotiations, either of the Management
Representatives concludes in good faith that resolution of the dispute
through continued negotiation is unlikely, or (ii) sixty days from the
date of submission of a Dispute Notice by either party.
15
12.3 Arbitration: If the parties are unable to reach a resolution of any
matter within the negotiating procedures outlined herein, either party
may submit this matter to arbitration under the Rules of the American
Arbitration Association. If the parties resort to arbitration, no
arbitrator shall be entitled to award punitive damages.
13. CONFIDENTIALITY
13.1 The Receiving Party shall:
13.1.1 keep the Confidential Information confidential;
13.1.2 not disclose the Confidential Information to any person, other
than in accordance with this clause 13, unless it first obtains
the Disclosing Party's written consent; and
13.1.3 not use the Confidential Information for any purpose other than
the performance of its obligations under this Agreement or, in
the case of Licensee, the use, management, support, maintenance
or development of the Custom Software.
13.2 The Licensee may disclose Confidential Information to its employees, the
other members of Licensee's Group (and their employees) and to third
parties (and their employees) contracted (or with whom Licensee is
negotiating with a view to contracting) to provide auditing, hardware or
software facilities management, support, maintenance or development
services to any member of Licensee's Group, to the extent reasonably
necessary for the purposes of this Agreement.
13.3 During the term of this Agreement the Licensor may disclose Confidential
Information to its employees and to the Licensor's Group and its
employees to the extent reasonably necessary for the purposes of this
Agreement.
13.4 The Receiving Party shall ensure that each person who receives
Confidential Information pursuant to clause 13.2 (a "Recipient") is made
aware of and complies with all the Receiving Party's obligations of
confidentiality under this Agreement as if the Recipient was a party to
this Agreement.
13.5 The Receiving Party may disclose Confidential Information where
disclosure is required by law, a court of competent jurisdiction or by a
regulatory body with authority over its business, provided that the
Receiving Party gives the Disclosing Party reasonable notice of the
disclosure.
13.6 The obligations contained in this Clause do not apply to Confidential
Information which:
13.6.1 is at the date of this Agreement within or at any time after the
date of this Agreement comes into the public domain other than
through breach of this Agreement by the Receiving Party or any
Recipient;
13.6.2 can be shown by the Receiving Party to the reasonable
satisfaction of the Disclosing Party to have been known by the
Receiving Party before disclosure by the Disclosing Party to the
Receiving Party; or
13.6.3 subsequently comes lawfully into the possession of the
Receiving Party from a third party.
16
13.7 For the purposes of this clause, "Confidential Information" means all
information of a confidential nature disclosed (whether in writing,
verbally or by any other means and whether directly or indirectly) by one
party (the "Disclosing Party") to the other party ( the "Receiving Party")
whether before or after the date of this Agreement including, without
limitation, any information relating to the Disclosing Party's products,
operations, processes, plans or intentions, product information,
Intellectual Property Rights, market opportunities and business affairs or
those of its customers, clients or other contacts.
14. GENERAL PROVISIONS
14.1 Entire Agreement and Variations
This Agreement including the Schedules constitutes the entire agreement
between the parties relating to the Software. Each party confirms that it
has not relied upon any representation not recorded in this Agreement as an
inducement to enter into this Agreement. No variation of these terms and
conditions will be valid unless confirmed in writing by authorised
signatories of both parties. This Agreement shall be binding upon the
successors and assigns of the parties hereto.
14.2 Severability
If any of the provisions of this Agreement is judged to be illegal or
unenforceable, the continuation in full force and effect of the remainder
of them will not be prejudiced.
14.3 Waiver
No forbearance or delay by either party in enforcing its respective rights
will prejudice or restrict the rights of that party, and no wavier of any
rights or of any breach of any terms of this contract will be deemed to be
a waiver of any other right or of any later breach.
14.4 Independent Contractors
The relationship between parties is that of independent contractor. Neither
of the parties is agent for the other, and neither of the parties has any
authority to enter into any contract, whether expressly or by implication,
in the name of the other party, without that party's prior written consent.
14.5 Assignment
Neither party will assign this Agreement or any benefits or interests
arising under this Agreement without the prior written consent of the other
party.
14.6 Notices
Notices under this Agreement shall be deemed given when delivered by hand,
on the fifth business day after such notice is deposited in the mail,
registered or certified, return receipt requested, postage prepaid, or sent
via facsimile to the following address:
TECHNOLOGY LICENSING COMPANY, LLC FORTDOVE LIMITED (OR SUCH NAME
17
6 W. Druid Hills Drive by which the company is later known)
Atlanta Abbey House
Georgia 000 Xxxxxxxxxxx Xxxx
00000 Xxxxxxxxxxx
Xxxxx XX00 0XX
-------------------------------- ------------------------------------
Attention: Trip Xxxxx (to be Attention: Company secretary
copied to Xxxxx Xxxxxxx at
World Travel Partners)
Either party may change its address by giving the other written notice of
the new address.
14.7 FORCE MAJEURE
14.7.1 If a party (the "Affected Party") is prevented, hindered or
delayed from or in performing any of its obligations under this
Agreement by a Force Majeure Event:
14.7.1.1 the Affected Party's obligations under this Agreement
are suspended while the Force Majeure Event continues
and to the extent that it is prevented, hindered or
delayed;
14.7.1.2 as soon as reasonably possible after the start of the
Force Majeure Event the Affected Party shall notify the
other party in writing of the Force Majeure Event, the
date on which the Force Majeure Event started and the
effects of the Force Majeure Event on its ability to
perform its obligations under this Agreement;
14.7.1.3 the Affected Party shall make all reasonable efforts to
mitigate the effects of the Force Majeure Event on the
performance of its obligations under this Agreement; and
14.7.1.4 as soon as reasonably possible after the end of the
Force Majeure Event the Affected Party shall notify the
other party in writing that the Force Majeure Event has
ended and resume performance of its obligations under
this Agreement.
14.7.2 If the Force Majeure Event continues for more than three months
starting on the day the Force Majeure Event starts, a party may
terminate this Agreement by giving not less than 30 days' written
notice to the other party.
14.7.3 In this clause, "Force Majeure Event" means an event beyond the
reasonable control of the Affected Party including, without
limitation, act of God, war, riot, civil commotion, malicious
damage, compliance with a law or governmental order, rule, or
regulation, an accidental breakdown of plant or machinery not due
to the negligence of the Affected Party, fire, flood and storm.
18
14.8 GOVERNING LAW AND JURISDICTION
This agreement shall be governed by and construed according to the laws of
the State of Georgia of the United States of America, without regard to its
choice of laws provisions.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts, which shall
together constitute one Agreement.
19
SCHEDULE A: THE SOFTWARE PRODUCTS
20
SCHEDULE B: FORM END USER SUB-LICENSE
21
SCHEDULE C: SUPPORT AND MAINTENANCE AGREEMENT
22
SCHEDULE D: DEFINITION OF EUROPE
23
SCHEDULE F: SPECIFICATIONS
24
SCHEDULE G: SOFTWARE/PRODUCTS
CAPABLE OF SUBLICENSE
25
IN WITNESS WHEREOF the undersigned as duly authorised representatives of the
parties to this Agreement have entered into this Agreement as of the date
written above.
-------------------------
FOR AND ON BEHALF OF
TECHNOLOGY LICENSING COMPANY, LLC
Name: /s/ Xxxxx Xxxxxxx
--------------------
Date:
--------------------
-------------------------
FOR AND ON BEHALF OF
FORTDOVE LIMITED
Name: /s/ Xxxxx Xxxxxxx
--------------------
Date:
--------------------
