EXHIBIT 10.19
SNAP2 CORPORATION
10641 Justin Drive
Des Moines, Iowa 50322
Tel: (515) 331-0560 Fax: (515) 331-3901
("SNAP2")
IN-FLIGHT ENTERTAINMENT SOFTWARE LICENSE AGREEMENT
Customer: British Airways, Waterside (HCA3) PO Box 365 Harmondsworth UB7 0GB
Contact: Jane Dormer, Commercial Manager, BA Enterprises, tel +44 (0)20 8738
5794, fax +44 (0)20 8738 9942, jane.a.dormer@britishairways.com
SNAP2 hereby grants Customer, and Customer hereby accepts from SNAP2, a
non-exclusive and non-transferable right to use the computer programs described
in Section 1 below (the "Products") on the designated hardware described in
Section 2 below (the "Designated Hardware"), for the term specified herein,
subject to the terms and conditions specified below.
GENERAL TERMS AND CONDITIONS
1. PRODUCTS
"Products" means (i) the machine-readable object code version of the computer
programs described in the Product Schedule, whether embedded on disc, tape or
other media, for use on the computer platform specified in the Product Schedule
(the "Software"), (ii) the published user manuals and documentation that SNAP2
makes generally available for the Software (the "Documentation"), (iii) the
fixes, updates, upgrades or new versions of the Software or Documentation that
SNAP2 may provide to Customer under this Agreement (the "Enhancements") and (iv)
any copy of the Software, Documentation or Enhancements. Nothing in this
Agreement will entitle Customer to receive the source code of the Software or
Enhancements, in whole or in part.
2. DESIGNATED HARDWARE
"Designated Hardware" means the hardware equipment installed in the designated
aircraft, each as specified in the Product Schedule, and any upgrades,
modifications or alterations to the same which do not require and changes to be
made to the Products. Customer may use the Products as described in Section 3
only on the Designated Hardware while it possesses and operates the Designated
Hardware. Any other use or transfer of the Products will require SNAP2's prior
approval, which (i) shall not be unreasonably withheld or delayed and (ii) may
be subject to additional charges should any revision to the Products be required
as a result of the alternative +use or transfer.
3. USE
Customer may use the Products only in and for Customer's own internal purposes
in providing in-flight entertainment to its passengers. Customer will not permit
any other person to use the Products, whether on a timesharing or other multiple
user arrangement. Customer may install the Software or Enhancements on a network
or other multi-user computer system specified in the Product Schedule and use
the Designated Hardware to provide file services to Customer's in-flight
entertainment consoles, up to the number of seats or aircraft specified in the
Product Schedule. Customer may make a reasonable number of back-up archival
copies of the Software and Enhancements. Customer will reproduce all
confidentiality and proprietary notices on
each of these copies and maintain an accurate record of the location of each of
these copies. Customer will not otherwise copy, translate, modify, adapt,
decompile, disassemble or reverse engineer the Products, except as and to the
extent expressly authorized by applicable law or with the prior approval of
SNAP2.
4. PAYMENT
Customer will pay to SNAP2 the License Fee specified in the Product Schedule and
by the date specified in the Product Schedule. The License Fee is based upon the
total number of seats or aircraft that may access an in-flight entertainment
console. Any increase in usage may be subject to additional charges. All amounts
specified in the Product Schedule are exclusive of any applicable use, sales,
service, property or other taxes or contributions, which Customer will pay in
addition to the amount due and payable. If, under local law or applicable
treaty, Customer is required to withhold any tax on such payments, then the
amount of the payment will be automatically increased to totally offset such
tax, so that the amount actually remitted to SNAP2, net of all taxes, equals the
amount invoiced or otherwise due. Customer will promptly furnish SNAP2 with the
official receipt of payment of these taxes to the appropriate taxing authority.
5. SHIPMENT
SNAP2 will, at its own cost, ship the Products from its distribution center to a
mutually agreed third party in the United States, subject to delays beyond
SNAP2's control. Should Customer desire shipment outside of the United States,
then SNAP2 will select the method of shipment for Customer's account and obtain
all licenses required to export the Products from the country of origin.
Customer shall pay or reimburse SNAP2 for the cost of shipment of the Products
to the port of entry at Customer's country of domicile. Customer will (i) obtain
all licenses required to import the Products into its country of domicile, (ii)
clear the Products through local customs and (iii) pay all customs duties and
other charges assessed on such importations, if applicable. Risk of loss will
pass to Customer upon arrival of the Products at the port of entry in Customer's
country of domicile.
6. MAINTENANCE AND SUPPORT
(a) Maintenance. During the warranty period specified in Section 7(a), SNAP2
will provide Customer, at no additional charge, with the fixes and updates that
SNAP2 may make generally available as part of its standard maintenance services
(the "Updates"). Customer may elect to continue receiving Updates for the
remainder of the Term (as defined in Section 12(a)) after the Warranty Period
(the "Maintenance Period"), as long as the Agreement is in effect.
(b) "Hot-Line" Support. During the Warranty Period and any Maintenance Period
for which Customer has paid, SNAP2 will provide Customer, at no additional
charge, with advice, consultation and assistance to use the Product and diagnose
and correct problems that Customer may encounter (the "Hot-Line Support"). SNAP2
will offer the Hot-Line Support remotely by telephone, fax or other electronic
communication during its business hours, 8:00 am to 5:00 pm C.S.T. Customer will
bear all telephone and other expenses that it may incur in connection with the
Hot-Line Support. SNAP2 may offer on-site support to Customer at additional
charges.
Hot-Line Contact Information:
Contact:: Tony Hoffman
Address: SNAP2 Corp.
10641 Justin Drive
Des Moines, IA 50322
Phone: (515) 331-0560 ext. 228
Fax: (515) 331-3901
Email: tonyh@snaptwo.com
(c) Limitation. The Updates will not include any upgrade or new version of the
Products that SNAP2 decides, in its sole discretion, to make generally available
to its customer base as a separately priced item. This Section will not be
interpreted to require SNAP2 to (i) develop and release Enhancements or (ii)
customize the Enhancements to operate in conjunction with any Customer
Modification or otherwise satisfy Customers' particular requests. If an
Enhancement replaces the prior version of the Product, Customer will destroy
such prior version upon installing the Enhancement.
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7. WARRANTIES AND REMEDIES
(a) Limited Warranty. SNAP2 warrants that (i) the Software will conform to
SNAP2's published specifications in effect on the date of delivery, (ii) the
Software will perform substantially as described in the accompanying
Documentation for 90 days from the first aircraft embodiment of the Product, and
(iii) from the date of delivery of the Product by SNAP2, the Products will
record, store, process and present calendar dates falling on or after December
31, 1999 in the same manner and with substantially the same functionality as
such Products record, store, process and present calendar dates falling before
December 31, 1999, (iv) it will perform any maintenance and support services
pursuant to Section 6 with reasonable care and skill, and (v) that the Products
are the same as those that have been seen and approved by the Customer prior to
delivery. Customer acknowledges that (i) the use of the Products will be
uninterrupted and error-free, so far as is commercially practicable and (ii)
this limited warranty will be not apply in case of any Customer Modifications.
Customer further acknowledges that (i) the License Fee and other charges
contemplated under this Agreement are based on the limited warranty, disclaimers
and limitation of liability specified in Sections 7, 8 and 9.
(b) Remedies. In case of breach of warranty or any other duty related to the
quality of the Products, SNAP2 or its representative will, at its own cost
within 14 days, correct or replace any defective Software or, if not
practicable, SNAP2 will accept the return of the defective Software and refund
to Customer (i) the amount actually paid to SNAP2 for the defective Software,
less depreciation based on a 5-year straight line depreciation schedule, and
(ii) a pro rata share of any maintenance fees that Customer actually paid to
SNAP2 for the period that such Software was not usable and (iii) any direct
costs incurred by the Customer.
(c) Limitations. The warranty provided in this Section 7 will not apply to the
extent that the breach of warranty or Product defect is not brought to the
attention of SNAP2 during the applicable warranty period or arSNAP2 as a result
of (i) failure to properly install or use the Product in accordance with its
documentation, (ii) failure of the operating environment or hardware failure,
(iii) modification of the Products other than by SNAP2, (iv) failure to install
an Update provided to the Customer by SNAP2 within 14 days that would have
eliminated the defect, (v) use of the Products with ambiguous date related data
or in a Year 2000 non-compliant operating environment or (vi) the combination of
the Products with other items not provided by SNAP2, but if the breach would not
have occurred from use of the Product alone with the Designated Hardware
existing as of the date of this Agreement provided that SNAP2 has not approved
the combination of the Product with the said other items.
(d) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES,
CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING PRIOR ORAL OR WRITTEN STATEMENTS
BY SNAP2, ITS AGENTS OR OTHERWISE ARE HEREBY OVERRIDDEN, EXCLUDED AND
DISCLAIMED.
8. INDEMNITY
(a) Indemnity. If an action is brought against Customer claiming that a Product
infringes a presently issued patent, or a copyright or trade secret, or any
other IPR whatsoever SNAP2 will defend Customer at SNAP2's expense and, subject
to this Section and Section 9, pay the damages and costs finally awarded against
the Customer in the infringement action, but only if (i) Customer notifies SNAP2
within 14 days in writing upon learning that the claim might be asserted, (ii)
SNAP2 has sole control over the defense of the claim and any negotiation for its
settlement or compromise subject to the Customer having final approval regarding
the content of any press release or other public statement regarding any claim
and (iii) Customer provides SNAP2 with full cooperation in the investigation,
defense and settlement of such claim as SNAP2 may reasonably require, providing
that Customer shall be reimbursed all of its reasonable out of pocket expenses
incurred as a result.
(b) Alternative Remedy. If a claim described in Section 8(a) may be or has been
asserted, Customer will permit SNAP2, at SNAP2's option and expense, to (i)
procure the right to continue using the Product, (ii) replace or modify the
Product to eliminate the infringement while providing functionally equivalent
performance or only if
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the remedies specified in (i) and (ii) are unavailable to SNAP2 on commercially
reasonable terms, (iii) accept the return of the Product and refund to Customer
the amount actually paid to SNAP2 for such Product, less depreciation based on a
5-year straight-line depreciation schedule and a pro rata share of any
maintenance fees that Customer actually paid to SNAP2 for the period that such
Product was not usable.
(c) Limitation. SNAP2 shall have no indemnity obligation to Customer under this
Section if the infringement claim results from (i) a correction or modification
of the Product not provided by SNAP2, such as a Customer Modification unless
approved by SNAP2 in writing, (ii) the failure to install an Update provided to
Customer by SNAP2 within 14 days or (iii) the combination of the Product with
other items not provided by SNAP2, unless the infringement would have occurred
from use of the Product alone or unless SNAP2 specifically approved in writing.
9. NO CONSEQUENTIAL DAMAGES
UNDER NO CIRCUMSTANCES WILL SNAP2 OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR
THOSE OF ITS PASSENGERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS OR
EQUIPMENT), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SNAP2 OR ITS LICENSORS
MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY
CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION
WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY
REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
10. OWNERSHIP
All trademarks, service marks, patents, copyrights, trade secrets and other
proprietary rights in or related to the Products are and will remain the
exclusive property of SNAP2 or its licensors, whether or not specifically
recognized or perfected under applicable law. Customer will not take any action
that jeopardizes SNAP2's or its licensor's proprietary rights or acquire any
right in the Products, except the limited use rights specified in Section 3.
SNAP2 or its licensor will own all rights in any copy, translation,
modification, adaptation or derivation of the Products, excluding any Customer
Modification which the Customer shall own or other improvement or development of
the Products.
11. CONFIDENTIALITY
(a) Confidentiality. Customer acknowledges that the Products incorporate
confidential and proprietary information developed or acquired by or licensed to
SNAP2. Customer will take all reasonable precautions necessary to safeguard the
confidentiality of the Products, including (i) those taken by Customer to
protect Customer's own confidential information and (ii) those which SNAP2 or
its authorized representative may reasonably request from time to time. Customer
will not allow the removal or defacement of any confidentiality or proprietary
notice placed on the Products so far as reasonably practicle. The placement of
copyright notices on these items will not constitute publication or otherwise
impair their confidential nature.
(b) Disclosure. Customer will not disclose, in whole or in part, any item of the
Products that has been designated as confidential to any individual, entity or
other person, except (i) to those of Customer's employees or consultants who (i)
require access for Customer's authorized use of the Products and (ii) agree to
comply with the use and non-disclosure restrictions applicable to the Products
under this Agreement. Customer shall cause any employee or consultant who has
access to the source code of the Software to expressly acknowledge its
confidential and proprietary nature. If an unauthorized use or disclosure
occurs, Customer will immediately
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notify SNAP2 as soon as the Customer is aware and may, at the Customer's sole
discretion, take such steps as the Customer decides to assist SNAP2 to remedy
and / or stop such unauthorized use or disclosure.
(c) Limitation. Customer will have no confidentiality obligation with respect to
any portion of the Products that (i) Customer knew or independently developed
before receiving the Products under this Agreement, (ii) Customer lawfully
obtained from a third party under no confidentiality obligation or (iii) became
available to the public other than as a result of any act or omission by
Customer or any of Customer's employees or consultants.
12. TERM AND TERMINATION
(a) Term. This agreement will become effective as of the date set forth below
and continue in effect for an initial term of 12 months (the "Term"), unless
otherwise terminated pursuant to Section 12(b). This Agreement will
automatically renew for additional terms of 12 months each year, unless either
party provides the other with written notice of its intention not to renew at
least 45 days prior to the expiration of the Term or any renewal thereof.
(b) Termination for Convenience. Customer may terminate this Agreement, without
right to refund, by notifying SNAP2 of such termination.
(c) Termination for Cause. Either party may terminate this Agreement,
immediately upon notice to the other party and without judicial or
administrative resolution, if the other party or any of its employees or agents
breach any term or condition hereof and such breach is not cured within 60 days
after receipt of notice specifying the breach and demanding its cure; provided,
however, that a cure period shall be applicable to a breach of Sections 10 or 11
only if such breach is, in the non-breaching party's opinion, reasonably capable
of cure. This Agreement will terminate automatically if either party becomes
insolvent or enters into bankruptcy, suspension of payments, moratorium,
reorganization or any other proceeding that relates to insolvency or protection
of creditors' rights. Upon the termination of this Agreement for any reason, all
rights granted to Customer hereunder will cease, and Customer will promptly (i)
purge the Software and Enhancements from the Designated Hardware and all of
Customer's other computer systems, storage media and other files, (ii) destroy
the Products and all copies thereof and (iii) deliver to SNAP2 a letter signed
by an officer of Customer which certifies that Customer has complied with these
termination obligations. Upon termination of this Agreement by Customer pursuant
to Section 12(c), SNAP2 shall refund to Customer the pro-rated amount of the
then-paid license fee or maintenance fee for the remaining term of the
Agreement. The provisions of Sections 7, 8, 9, 10, and 11 will survive the
termination of this Agreement.
13. INSPECTION
During the term of this Agreement, SNAP2 or its representative may, upon
reasonable prior notice to Customer, inspect the files, computer processors,
equipment, aircraft and facilities of Customer during normal working hours to
verify Customer's compliance with this Agreement. While conducting such
inspection, SNAP2 or its representative will be entitled to copy any item that
Customer may possess in violation of this Agreement.
14. ASSIGNMENT
Customer shall not assign, delegate or otherwise transfer this Agreement or any
of its rights or obligations hereunder without SNAP2's prior approval.
The Customer has the right to immediately terminate the Agreement within 30 days
of written notice at its sole discretion in the event that SNAP2 assigns,
delegate or otherwise transfer this Agreement or any of its rights or
obligations hereunder.
15. EXPORT CONTROLS
Customer acknowledges that the Products and all related technical information,
documents and materials are subject to export controls under the U.S. Export
Administration Regulations. Customer will (i) comply strictly with all legal
requirements established under these controls, (ii) cooperate fully with SNAP2
in any official or unofficial audit or inspection that relates to these controls
and (iii) not export, re-export, divert or transfer, directly or indirectly, any
such item or direct products thereof to Cuba, Iran, Iraq, Libya, North Korea,
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Sudan, Syria or any country that is embargoed by Executive order, unless
Customer has obtained the prior written authorization of SNAP2 and the U.S.
Commerce Department. Upon notice to Customer, SNAP2 may modify this list to
conform to changes in the U.S. Export Administration Regulations.
16. MISCELLANEOUS
All notices or approvals required or permitted under this Agreement must be
given in writing. Any waiver or modification of this Agreement will not be
effective unless executed in writing and signed by the parties. This Agreement
will bind the parties' successors-in-interest. This Agreement will be governed
by and interpreted in accordance with the laws of the State of New York U.S.A.
The parties hereby exclude application of the U.N. Convention on Contracts for
the International Sale of Goods from this Agreement and any transaction between
them related thereto. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other provisions of this Agreement, unless either party in good faith deems
the unenforceable provision to be essential, in which case such party may
terminate this Agreement effective immediately upon notice to the other party.
Any press release or other public statement regarding this Agreement shall be
mutually agreed between the parties. Either party may use the other's name in
its advertising collateral, subject to the prior approval of the other party,
which may be granted or withheld at that party's sole discretion. This Agreement
constitutes the complete and entire statement of all conditions and
representations of the agreement between SNAP2 and Customer with respect to its
subject matter and supersedes all prior writings or understandings.
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THIS AGREEMENT IS NOT EFFECTIVE UNTIL SIGNED ON BEHALF OF BOTH PARTIES.
SNAP2 Corporation British Airways
- --------------------------------- ----------------------------------------
("SNAP2") ("Customer")
By: /S/ Mark Malinak By: /S/ Jane A. Dormer
------------------------------ ----------------------------------------
(Signature) (Signature)
Name: Mark Malinak Name: Jane Dormer
---------------------------- --------------------------------------
Title: VP Sales Title: Commercial Manager
--------------------------- -------------------------------------
Date: 4/16/01 (16th April 2001) Date: 9th April 2001
---------------------------- --------------------------------------
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PRODUCT SCHEDULE
Software: SNAP2 Travel Kit Game Suite consists of the following 10 games:- of
ten (10) of the following games:
1. Solitaire
2. Black Jack
3. Backgammon
4. Othello
5. Tetris
6. Zero G
7. Trivia Game
8. Professional Gold Digger
9. Noughts and Crosses
10. Twins Cafe Match
Computer Platform: Rockwell Collins TES Core D
Designated Hardware (S/N): Rockwell Collins TES
Designated Aircraft: 110 aircraft
Cabin Deployment: First/Business/World Traveller Plus cabin deployment
AnnualLicense Fee: See schedule below, all pricing in U.S. dollars
SNAP2 TravelKit Game Suite Pricing (U.S. dollars)
[Confidential Treatment has been requested for this portion of this Exhibit]
Product Services
[Confidential Treatment has been requested for this portion of this Exhibit]
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Translation of Games
The following 17 games have been ported to Rockwell Collins TES. Customer may
substitute any game from the current list, while Agreement is in effect, subject
to additional SNAP2 translation fees and all IFE OEM integration fees and
restrictions.
- ----------------------------------------------------------------------------------------------------
Game Title
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
English French German Japanese Portuguese Spanish
- ----------------------------------------------------------------------------------------------------
1 Backgammon X X X X X X
- ----------------------------------------------------------------------------------------------------
2 Blackjack X X X X X X
- ----------------------------------------------------------------------------------------------------
3 Othello X X X X X X
- ----------------------------------------------------------------------------------------------------
4 Solitaire X X X X X X
- ----------------------------------------------------------------------------------------------------
5 Tetris X X X X X X
- ----------------------------------------------------------------------------------------------------
6 Twins Cafe Match Game X X X X X X
- ----------------------------------------------------------------------------------------------------
7 Zero G X X X X X X
- ----------------------------------------------------------------------------------------------------
8 Hangman X X X X X
- ----------------------------------------------------------------------------------------------------
9 Trivia Game X X X X X
- ----------------------------------------------------------------------------------------------------
10 Professional Gold Digger X X
- ----------------------------------------------------------------------------------------------------
11 Draw Poker X X
- ----------------------------------------------------------------------------------------------------
12 Crossword X
- ----------------------------------------------------------------------------------------------------
13 Chinese Solitaire X
- ----------------------------------------------------------------------------------------------------
14 Tic-Tac-Toe / Noughts X
and Crosses
- ----------------------------------------------------------------------------------------------------
15 Slots X
- ----------------------------------------------------------------------------------------------------
16 Keno X
- ----------------------------------------------------------------------------------------------------
17 Noisy Farm X
- ----------------------------------------------------------------------------------------------------
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