EXHIBIT 10.44
DATED __________, 1996
PROZESSDATENTECHNIK GmbH
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UK CONSUMER ELECTRONICS LIMITED
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SOFTWARE LICENCE AND TECHNICAL
SUPPORT AGREEMENT
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Jay Benning & Peltz
One Great Cumberland Place
London W1H 7AL
Tel: 0171-636 9043
Fax: 0171-631 4207
Ref: BJ
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[***] Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
SOFTWARE LICENCE AND TECHNICAL SUPPORT AGREEMENT
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Index to Clauses
1 Definitions...................................................... 1
2 Grant of Licence and Provision of Services....................... 2
3 Licence Fee...................................................... 3
4 Technical Support................................................ 3
5 Property and Confidentiality in the Licensed Program Materials... 5
6 Use on Non-Designated Equipment and Relocation of the
Designated Equipment........................................... 5
7 Warranty......................................................... 6
8 Limitation of Liability.......................................... 6
9 Intellectual Property Rights Indemnity........................... 6
10 Risk in the licensed program materials........................... 7
11 Confidentiality.................................................. 7
12 Licensee's Representatives....................................... 7
13 Force Majeure.................................................... 7
14 Waiver........................................................... 8
15 Notices.......................................................... 8
16 Invalidity and severability...................................... 8
17 Entire Agreement................................................. 8
18 Successors....................................................... 9
19 Assignment and Sub-Licensing..................................... 9
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TABLE OF CONTENTS
(CONTINUED)
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20 VAT.............................................................. 9
21 Headings......................................................... 9
22 Law.............................................................. 9
Schedule
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SOFTWARE LICENCE AND TECHNICAL SUPPORT AGREEMENT
Date: 1996
Parties:
1 "The Company": PRODAC PROZESSDATENTECHNIK GmbH a Company
incorporated in Germany and whose registered office is at
Max-Planck-Strasse 38D - 50858 Koln Marsdorf Germany
2 "The Licensee": UK CONSUMER ELECTRONICS LIMITED registered number
532857) whose registered office is at Granada House
Ampthill Road, Bedford MK42 9QR
RECITAL
The Company has agreed to grant the Licensee perpetual non-exclusive,
royalty-free licenses to use the computer software programs and associated
documentation listed in the Schedule and to provide certain services to the
Licensee in respect of technical support upon the terms and conditions of this
Agreement.
Operative Provisions:
1 DEFINITIONS
1.1 In this Agreement unless the context otherwise requires:
"ACTUAL DELIVERY DATE" means the actual date that the Prodac System in
which the licensed program is to reside is delivered.
"ADDITIONAL CHARGES" means the charges at the Company's rates from time to
time for work undertaken on a time and materials basis.
"CDPA" means the Copyright Design & Patents Act 1988.
"COMMISSIONING" as defined in the Supply Agreement.
"CONSEQUENTIAL LOSS" means a liability in respect of loss of profits
goodwill or any type of special indirect or consequential loss (including loss
or damage suffered as a result of action brought by a third party) other than
any liability for death or injury arising from negligence.
"DELIVERY DATE" means the estimated date for the delivery of the Licensed
Program Materials set out in the Schedule.
"LICENCED PROGRAMS" means the software programs used in the Prodac System
save for the Microsoft and Microcom Software including any New Release of the
same made or issued pursuant to clause 4 below.
"LICENCED PROGRAM MATERIALS" means the Licensed Programs and the Program
Documentation.
"NEW RELEASE" means any improved enhanced modified or corrected version of
any of the Licensed Programs or Program Documentation from time to time issued
by the Company.
"PRODAC SYSTEM" has the same meaning as that in the supply agreement
between the parties of even date.
"PROGRAM DOCUMENTATION" means the instruction manuals for the software and
any other information to be made available from time to time during this
Agreement by the Company at its discretion in either printed or machine readable
form to the Licensee.
"SERVICES" means the provision of Technical Support in accordance with
respectively clause 4 below.
"SITE" means the address for delivery of the Licensed Program Materials to
be advised in the relevant order.
"THE SUPPLY AGREEMENT" as referred to above in the definition of Prodac
System.
"TECHNICAL SUPPORT" means the provision of such categories of technical
support in accordance with clause 4 below.
"USE" includes, without limitation, the running, copying or transmission of
the Licensed Programs into or on the Prodac System and the operation of the
Prodac System and Licensed Programs with other equipment or software together
with the use of the Program Documentation.
2 GRANT OF LICENCE AND PROVISION OF SERVICES
2.1 The parties agree that the first time Licensed Programs are supplied
by the Company to the Licensee on the supply of any Prodac System whether before
or after the date of this Agreement including the completion of the Sale &
Purchase Agreement relating inter alia to the Customer Agreements referred to in
Clause 3.1 the provisions of this Agreement shall apply to the Licensed Programs
so supplied;
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2.2 The Company in consideration of the payment by the Licensee of the
Licence Fee in accordance with clause 3 below hereby:
2.2.1 grants to the Licensee a perpetual, non-exclusive royalty-free
licence to Use:
(i) the Licensed Programs upon the Prodac System and
(ii) the Program Documentation; and
2.2.2 undertakes to the Licensee to provide the Services upon the
terms and conditions of this Agreement.
3 LICENCE FEE
3.1 The Licensee shall pay a one off licence fee of Dm [***] plus VAT to
the Company ("the Fee") for each Licensed Program ordered but not already paid
for and those to be ordered in the future but not for those relating to the
Customer Agreements as referred to in the Sale and Purchase Agreement of even
date made inter alia between the parties at the time and in the manner that the
Licensee is to pay for the Prodac System into which the Licensed Programs are to
be installed.
3.2 The Company reserves the right to charge the Licensee interest in
respect of the late payment of any sum due under this Agreement (as well after
as before judgment) at the rate of three per cent per annum above the base rate
from time to time of Barclays Bank plc from the due date therefor until payment.
4 TECHNICAL SUPPORT
4.1 With effect from the Actual Delivery Date and for seven years from the
date of Commissioning of the last Prodac System sold by the Company to the
Licensee in each case the Company shall provide in respect of each of the
Licensed Programs such category of Technical Support as referred to in Clause
4.2.
4.2 Technical Support shall comprise all or any of the following
categories and as otherwise stated.
4.2.1 advice by telephone on the Use of the Licensed Programs
(category "A") free of charge until the expiration of one month from
Commissioning;
4.2.2 free of charge information and advice by telephone or within a
reasonable time by post on forthcoming New Releases of the Licensed Programs
(category "B");
4.2.3 upon request by the Licensee the diagnosis of faults in the
Licensed Programs and the rectification of such faults (remotely or by
attendance on Site as determined by the Company) within a reasonable time where
appropriate by the issue of fixes in respect of the Licensed Programs
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[***] Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
and the making of all necessary consequential amendments (if any) to the Program
Documentation (category "C");
4.2.4 the despatch within a reasonable time to the Licensee whenever
available of fixes in respect of the Licensed Programs (category "D").
4.2.5 for the price of [***] DM plus VAT the despatch within a
reasonable time to the Licensee whenever available of one copy of any New
Release of the Licensed Programs or Program Documentation if required by the
Customer at its expense and the Licensee shall be entitled to make multiple
copies at no additional charge for each Prodac System (category "E").
4.3 The Licensee shall supply in writing to the Company a detailed
description of any fault requiring Technical Support within category C above and
the circumstances in which it arose forthwith upon becoming aware of the same.
4.4 The Response Time for category C Technical Support shall be between
the hours of 9:00 a.m. and 5:30 p.m. Monday through Friday (excluding bank and
other public holidays). The Company shall use its reasonable endeavors to
respond within 24 hours of receipt of a request.
4.5 Technical Support shall include the diagnosis and rectification of any
fault but the Response Times shall not apply in any such case and response shall
take place within a reasonable time having regard to all the circumstances
resulting from:
4.5.1 the improper use operation or neglect of either the Licensed
Program Materials or the Prodac System; or
4.5.2 the modification by the Licensee of the Licensed Programs or
the merger (in whole or in part) with any other software;
4.5.3 the use of the Licensed Programs on equipment other than the
Prodac System;
4.5.4 the failure by the Licensee to implement recommendations in
respect of or solutions to faults previously advised by the Company;
4.5.5 any repair adjustment alteration or modification of the
Licensed Programs by any person other than the Company without the Company's
prior consent;
4.5.6 the use of the Licensed Programs for a purpose for which
they were not designed.
4.6 The Company shall upon request by the Licensee provide Technical
Support notwithstanding that the fault results from any of the circumstances
described in clause 4.5 above. The Company shall in any case be entitled to levy
reasonable charges in the manner set out in Clause 4.7 below.
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[***] Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
4.7 Subject to the provisions of Clause 4.2.1 and 4.2.2. save in a case in
which a software malfunction takes place as a result of anything done or omitted
to be done by the Company, the Company shall be entitled to levy reasonable
charges on the basis of time spent including where applicable traveling time,
subsistence and the price of materials and of spare parts.
4.8 Charges shall be invoiced by the Company monthly in arrears and shall
be payable by the Licensee (together with value added tax thereon) within 30
days of despatch of an invoice therefor.
4.9 The Company shall not be liable under this Agreement for the
consequences of any of the circumstances set out in clause 4.5 above.
5 PROPERTY AND CONFIDENTIALITY IN THE LICENSED PROGRAM MATERIALS
5.1 The Licensed Program Materials contain confidential information of the
Company and all copyright trade marks and other intellectual property rights in
the Licensed Program Materials are the exclusive property of the Company.
5.2 The Licensee shall not:
5.2.1 reverse compile, copy or adapt the whole or any part of the
Licensed Program Materials except for the purposes expressly permitted by and in
accordance with CDPA 1988 as amended.
5.2.2 remove or alter any copyright or other proprietary notice on
any of the Licensed Program Materials.
5.3 The Licensee shall:
5.3.1 keep confidential the Licensed Program Materials;
5.3.2 reproduce on any copy (whether in machine readable or human
readable form) of the Licensed Program Materials the Company's copyright and
trade mark notices;
5.3.3 notify the Company immediately if the Licensee becomes aware of
any unauthorized use of the whole or any part of the Licensed Program Materials
by any third party.
6 USE ON NON-DESIGNATED EQUIPMENT
6.1 If the Prodac System is for any reason inoperable the Licensee shall
be entitled without extra charge to use the Licensed Programs upon such
alternative machine under the control of the Licensee as the Company shall
approve (such approval not to be unreasonably withheld or delayed) until such
time as the Prodac System once more becomes operable which fact shall be
promptly notified to the Company.
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6.2 Subject to Clause 6.1 if the Licensee shall replace the Prodac System
or permanently transfer the Licensed Program Materials from the Prodac System
the Company shall be under no obligation to provide any further Technical
Support.
7 WARRANTY
7.1 Subject to the exceptions set out in clauses 7.2 and 7.3 below and the
limitations upon its liability in clause 8 below the Company warrants that its
title to and property in the Licensed Program Materials is free and unencumbered
and that it has the right power and authority to license the same upon the terms
and conditions of this Agreement.
7.2 The Company will perform the Services with reasonable care and
skill.
7.3 The Company warrants that the Licensed Programs (including where in
machine-readable form the Program Documentation) will on despatch be in good
working condition and fit for Use.
7.4 The Company shall remedy and breach of the warranties set out above by
the provision where appropriate of Technical Support.
7.5 Subject to the foregoing all conditions, warranties, terms and
undertakings express or implied, statutory or otherwise in respect of the
Licensed Program Materials and the provisions of the Services are hereby
excluded.
8 CONSEQUENTIAL LOSS
(A) The Company shall not be liable for Consequential Loss in relation
to any matter if:
(a) the Licensee shall have failed to give the Company written notice
of the relevant matter (stating in reasonable details its nature and, so far as
is practicable, the amount claimed) and to consult with the Licensee with
respect to the matter; or
(b) the Licensee shall have settled any claim or taken (or failed to
have taken) any significant step in proceedings in relation to the matter
without the prior written consent of the Company such consent not to be
unreasonably withheld or delayed.
(B) The Licensee will limit liability under any new contracts with any
customers to (Pounds)5,000 per hotel.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Subject to the rights granted to the Licensee by this Licence, and to
others the Licensee acknowledges that all and any proprietary rights in the
Software, shall be and remain the sole property of the Company.
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9.2 The Company shall indemnify and hold harmless the Licensee against any
damages (including costs) that may be awarded by a court of competent
jurisdiction or agreed to be paid to any third party with the prior consent of
the Company in respect of any claim or action that the normal operation
possession or use of the Licensed Program Materials by the Licensee infringes
the patent, copyright, registered design or trade mark of the said third party.
10 RISK IN THE LICENSED PROGRAM MATERIALS
Risk in the Licensed Program Materials will pass to the Licensee upon
the delivery to the Licensee. If subsequently the Licensed Program Materials
are (in whole or in part) destroyed damaged or lost the Company will upon
request replace the same subject to the Licensee paying its then prevailing
charges for the relevant media.
11 CONFIDENTIALITY
11.1 Each of the parties hereto undertakes to the other to keep
confidential all information (written or oral) concerning the business and
affairs of the other that it shall have obtained or received as a result of the
discussions leading up to or the entering into of this Agreement save that which
is:
11.1.1 trivial or obvious;
11.1.2 already in its possession other than as a result of a breach
of this clause; or
11.1.3 in the public domain other than as a result of a breach of
this clause.
11.2 Each of the parties undertakes to the other to take all such steps as
shall from time to time be necessary to ensure compliance with the provisions of
clause 11.1 above by its employees, agents and sub-contractors.
12 LICENSEE'S REPRESENTATIVES
The Licensee shall communicate to the Company upon the date hereof the
identify of the person(s) or the department within its undertaking who shall act
as the sole contact point and channel of communication for the provision by the
Company of the Services during the currency of this Agreement. The Licensee
shall forthwith inform the Company of any change in the identity of any such
person(s) or department.
13 FORCE MAJEURE
13.1 Neither party hereto shall be liable for any breach of its obligations
hereunder resulting from causes beyond its reasonable control including but not
limited to fires, strikes (of its own or others' employees), insurrection or
riots, embargoes, wrecks, or delays in transportation, inability to obtain
supplies and raw materials, requirements or regulations of any civil or military
authority (an "Event of Force Majeure").
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13.2 Each of the parties hereto agrees to give notice forthwith to the
other upon becoming aware of an Event of Force Majeure such notice to contain
details of the circumstances giving rise to the Event of Force Majeure.
14 WAIVER
The waiver by either party of a breach or default of any of the
provisions of this agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or other provisions not shall any
delay or omission on the part of either party to exercise or avail itself of any
right power or privilege that it has or may have hereunder operate as a waiver
of any breach or default by the other party.
15 NOTICES
Any notice request instruction or other document to be given hereunder
shall be delivered or sent by first class post or by facsimile transmission
(such facsimile transmission notice to be confirmed by letter posted within 12
hours) to the address or to the facsimile number of the other party set out in
this Agreement (or such other address or numbers as may have been notified) and
any such notice or other document shall be deemed to have been served (if
delivered) at the time of delivery (if sent by post) upon the expiration of 6
days after posting and (if sent by facsimile transmission) upon the expiration
of 12 hours after dispatch.
Notices to the Company : Mr. R. Kasbach & Mr. H. Wirt
Facsimile Number : 00-49-22-34-215195
Notices to the Licensee : The Company Secretary
Facsimile Number : 01234 226600
16 INVALIDITY AND SEVERABILITY
If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or unenforceable,
the invalidity or unenforceability of such provision shall not affect the other
provisions of this Agreement and all provisions not affected by such invalidity
or unenforceability shall remain in full force and effect. The parties hereby
agree to attempt to substitute for any invalid or unenforceable provision a
valid or enforceable provision which achieves to the greatest extent possible
the economic legal and commercial objectives of the invalid or unenforceable
provision.
17 ENTIRE AGREEMENT
17.1 The Company shall not be liable to the Licensee for loss arising from
or in connection with any representations agreements statements or undertakings
made prior to the date of execution of this Agreement other than those
representations agreements statements or undertakings confirmed by a duly
authorized representative of the Company in writing or expressly incorporated or
referred to in this Agreement.
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17.2 The Licensee accepts that the Licensed Program Materials were not
designed and produced to its individual requirements and that it was responsible
for their selection.
18 SUCCESSORS
This Agreement shall be binding upon and enure for the benefit of the
successors in title of the parties hereto.
19 ASSIGNMENT AND SUB-LICENSING
19.1 The Licensee shall be entitled to assign or otherwise transfer this
Agreement and to sub-license the use (in whole or in part) of the Licensed
Program Materials in any such case only together with the Prodac System in which
the same are installed.
19.2 In the event that the Licensee shall assign or otherwise transfer this
Agreement or the Licensed Program Materials or sub-license the use (in whole or
in part) of the Licensed Program Materials it shall first procure that the sub-
licensee enters into a License agreement with the Company substantially in the
terms of this Agreement.
20 VAT
Save insofar as otherwise expressly provided all amounts stated in
this Agreement are expressed exclusive of value added tax and any value added
tax arising in respect of any supply made hereunder shall on the issue of a
valid tax invoice in respect of the same be paid to the party making such supply
by the party to whom it is made in addition to any other consideration payable
therefor.
21 HEADINGS
Headings to clauses in this Agreement are for the purpose of
information and identification only and shall not be construed as forming part
of this Agreement.
22 LAW
This Agreement shall be governed by and construed in accordance with
English law and the parties hereto agree to submit to the non-exclusive
jurisdiction of the English courts. The Company irrevocably appoints and
authorizes Jay Benning & Peltz of One Great Cumberland Place, London W1H 7AL (or
such other person being a firm of solicitors resident in England as the Company
may by notice substitute) to accept service on behalf of the Company of all
legal process and service on Jay Benning & Peltz (or each substitute) shall be
deemed to be service on the Company.
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Executed by the parties the day and year first above written.
Signed on behalf of PRODAC PROZESSDATENTECHNIK GmbH
By: /s/ Authorized Signature
Director (duly authorised)
Signed on behalf of UK CONSUMER ELECTRONICS
LIMITED BY:
/s/ Director (duly authorised)
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