EXHIBIT 10.20
QANTAS AIRWAYS LTD.
Agreement no.
SYD-CPI-2000-001127
with
SNAP2 CORPORATION
for
IFE Games Software Supply
& Licence Agreement
TABLE OF CONTENTS
1. Application of these Terms and Interpretation.........................3
2. Primary Obligations...................................................7
3. The Relationship......................................................7
4. Project Plan..........................................................8
5. Change Management.....................................................8
6. Personnel.............................................................9
7. Subcontracting.......................................................10
8. Products to be Supplied..............................................10
9. Staged Supply........................................................10
10. Modifications and Interfaces.........................................11
11. Qantas supplied equipment............................................11
12. Delivery and Timing..................................................12
13. Delay................................................................12
14. Escrow...............................................................13
15. Price and Payment....................................................13
16. Risk and Title.......................................................14
17. Pre-install Testing..................................................14
18. Acceptance Testing...................................................14
19. Warranties...........................................................15
20. Warranty Issues......................................................16
21. Support..............................................................17
22. Documentation........................................................18
23. Training.............................................................18
24. Assignment of Intellectual Property Rights (IPR).....................18
25. Licences.............................................................19
26. Intellectual Property Warranty and Indemnity.........................19
27. Confidential Information.............................................20
28. Performance Bond.....................................................21
29. Alliance Partners....................................................21
30. Indemnities..........................................................22
31. Liability............................................................23
32. Insurance............................................................23
33. Taxation and Employer Obligations....................................23
34. Goods and Services Tax...............................................24
35. Escalation and Dispute Resolution....................................25
36. Termination..........................................................26
37. Termination for Convenience..........................................26
38. Effects of Termination...............................................27
39. Return of Materials..................................................27
40. Money Recoverable by Qantas..........................................28
41. General..............................................................28
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QANTAS SOFTWARE SUPPLY & SUPPORT AGREEMENT
TERMS
-------------------------------------------------------------------------------
This AGREEMENT SYD-CPI-2000-001127 is made between these parties:
QANTAS: QANTAS AIRWAYS LIMITED (ACN 009 661 901)
of Qantas Centre, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Qantas")
SUPPLIER: Snap2 Corporation of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("Supplier")
INTRODUCTION
A. Qantas is in the process of introducing a new inflight entertainment (IFE)
system on all classes of its 747 fleet.
B. The Supplier supplies games that are compatible with the airline IFE
system, Rockwell ▇▇▇▇▇▇▇ TES, that Qantas is acquiring.
C. These Terms and Conditions set out the terms and conditions on which the
Supplier will:
1. provide the products and services needed to install some of its games on
those Qantas aircraft that will have the IFE system; and
2. grant Qantas a Licence to use these games on those aircraft
AGREEMENT
1. Application of these Terms and Interpretation
1.1 Commencement and Term: This Agreement commences on:
(a) the date specified in Schedule 1; or
(b) if no date is specified, the date of this Agreement,
and will continue in force until the each party has performed all its
obligations under this Agreement.
1.2 Definitions: In this Agreement:
`Accept' means Qantas accepts a Product in accordance with clause 0
(Acceptance Testing).
`Acceptance Criteria' means the requirements specified in Schedule 10 which
the Deliverables must meet to be accepted by Qantas.
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`Acceptance Tests' means the tests carried out in accordance with clause 18
(Acceptance Testing) to determine whether the Deliverables meets the
Acceptance Criteria. `Acceptance Testing' has a corresponding meaning.
`Address for Notice' for a party means that party's representative and
address specified in Schedule 15.
"Alliance Partners" means British Airways and:
(i) any other company or corporation of which Qantas or any of its
subsidiaries owns shares which represent or are convertable into shares
that represent (20%) or more of the equity share capital from time to time;
or
(ii) any airline to which Qantas has granted a franchise or which it has
otherwise licensed to use the Qantas name (whether alone or in conjunction
with another name) in conjunction with a method and/or style of commercial
operation which is similar to that of Qantas.
`Contract Price' means the total of all amounts paid and payable by Qantas
under this Agreement.
`Current Environment' means Qantas' existing combination of hardware and
software as specified in Schedule 5.
`Damages' means liabilities, expenses, losses, damages and costs (including
legal costs on a full indemnity basis and whether incurred or awarded
against a party).
`Delay' means any circumstance which has adversely affected or is likely to
adversely affect the Supplier's performance of its obligations under this
Agreement.
`Deliverables' means the Products and Services to be supplied by the
Supplier under this Agreement.
`Detailed Project Plan' means a project plan developed by the Supplier in
accordance with clause 4 (Project Plan).
`Documentation' means the Documentation set out in Schedule 11.
`Due Date' means the delivery date for the Deliverables specified in the
Schedule 7.
`Equipment' means all Products that are not Software, Documentation or
Spare Parts.
`Error' means an error or defect that results in the Product not
functioning correctly or complying with the Warranties.
`Final Acceptance' means acceptance of all of the Deliverables by Qantas in
accordance with clause 18 (Acceptance Testing). `Finally Accept' has a
corresponding meaning.
`Force Majeure Event' means anything outside the reasonable control of a
party. A strike by employees of a party or employees of a Subcontractor (or
both) is not a Force Majeure Event unless the strike is part of an industry
wide campaign that does not arise out of a dispute between that party or
Subcontractor and one or more of its employees.
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`Installation Site' means the site specified in Schedule 7.
`Intellectual Property Rights' or `IPR' means all intellectual property
rights, including but not limited to the following rights:
(a) patents, copyright, rights in circuit layouts, registered designs,
trade marks, and any right to have confidential information kept
confidential; and
(b) any application or right to apply for registration of any of the
rights referred to in paragraph (a).
`IPR Claim' means a claim or proceedings alleging that any part of a
Deliverable or its use infringes the IPR of any person.
`Licences' means the licences as set out in clause 25
`Licensed Software' means the Software other than Qantas Software.
`Milestone' means a milestone in the Project Plan and the Payment Schedule.
`Payment Schedule' means the schedule of payments set out in Schedule 9.
`Personnel' of a party:
(a) means officers, employees, agents and contractors of that party;
(b) in the case of the Supplier includes Subcontractors; and
(c) in the case of Qantas includes officers, employees, agents and
contractors acting under the direction and control of any Qantas Group
Company.
`Products' means any items (or any combination of them) in any form that
the Supplier must supply to Qantas under this Agreement including without
limitation Equipment, Spare Parts, Software, Documentation and any items
required for the testing or maintenance of the Equipment or Software.
`Progress Report' means a report described as such in clause 9 (Staged
Supply).
`Project Plan' means any plan specified in Schedule 6, as amended in
accordance with clause 5.1.
`Qantas Group Company' means Qantas, its subsidiary and related
corporations (as defined by the Australian Corporations Law), British
Airways and any other Alliance Partner.
`Qantas Software' means any custom software that has been modified for
Qantas at the request and cost of Qantas.
`Release' means an upgrade of Software (or any part of it) that
substantially corrects errors or defects in the Software or enhances it
previous form, without being a new version.
`Response Times' means the response and turnaround times for correction of
Errors set out in Schedule 13.
`Services' means all services to be supplied under this Agreement including
without limitation delivering the Deliverables, Software development,
support and Training.
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`Severity Level' of an Error is a number indicating the severity
classification given to that problem by Qantas and notified to the
Supplier.
`Software' means the Products that are software and all Releases and
Versions of those Products.
`Source Code' means:
(a) the compilable source code of the Software as current from time to
time; and
(b) all other information, software and documentation necessary to enable
Qantas' Personnel to understand the program logic of and to maintain
that Software.
`Specifications' means in order of priority:
(a) the specifications referred to or described in Schedule 5;
(b) any representation made by the Supplier to Qantas in writing
concerning the Deliverables or Services (or any combination of them),
whether as to its function, performance, technical specifications or
otherwise; and
(c) all applicable manufacturers' specifications and applicable standards.
`Support Fees' means the fees specified in Schedule 13 to be paid by Qantas
for the support services provided by the Supplier under this Agreement.
`Support Period' means any period for which Qantas has paid Support Fees,
the length of each Support Period is specified in Schedule 13.
`System' means the combination of the Products, the Current Environment and
any other items of hardware or software specified in Schedule 5.
`Version' means a version of the Software that provides additional
functionality compared with the previous version.
`Warranted Availability' for a product means the percentage of time a
Product will be available for productive use by Qantas (excluding scheduled
outages) measured over a rolling three month period.
`Warranties' means the performance warranties set out in clause 19.1
(Warranties).
`Warranty Period' means the warranty period specified in Schedule 7 or if
no period is specified 3 months from the date of acceptance of the
Deliverables.
`Year 2000 Compliant' or `Year 2000 Compliance' means that neither
performance nor functionality is affected by dates prior to, during and
after the year 2000. In particular:
(a) no value for current date will cause any interruption in operation;
(b) date-based functionality must behave consistently for dates prior to,
during and after year 2000;
(c) in all interfaces and data storage, the century in any date must be
specified either explicitly or by unambiguous algorithms or
inferencing rules; and
(d) year 2000 must be recognised as a leap year. Note: This definition is
based on the British Standards Institution's Year 2000 compliance
rules as described in PD2000-1:1998.
Note: This definition is based on the British Standards Institution's Year
2000 compliance rules as described in PD2000-1:1998.
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1.3 Interpretation: In this Agreement, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the meaning
of this Agreement;
(b) the singular includes the plural and vice versa;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule or annexure is a
reference to a clause or paragraph of, or schedule or annexure to,
this Agreement and a reference to this Agreement includes any
schedules and annexures;
(e) a reference to a clause, document or Agreement, including this
Agreement, includes a reference to that clause, document or Agreement
as novated, amended or replaced from time to time;
(f) a reference to a statute, ordinance or by-law includes regulations and
other instructions under it and consolidations, amendments,
re-enactments or replacements of any of them;
(g) a reference to a right or obligation of any two or more persons
confers that right or imposes that obligation, as the case may be,
jointly and severally; and
(h) a reference to a party includes permitted assigns and successors of
that party.
2. Primary Obligations
2.1 Supplier: The Supplier must, in accordance with this Agreement:
(a) supply the Deliverables;
(b) if specified in the Schedules, install and test the Products;
(c) ensure that the Deliverables meets the Specifications;
(d) transfer or grant all rights necessary to enable any of the Qantas
Group Companies to use the Deliverables; and
(e) perform any obligations set out in Schedule 4 as Supplier
responsibilities.
2.2 Cooperation: In performing its obligations, the Supplier must cooperate
with other suppliers performing work for Qantas.
2.3 Qantas: Qantas must, in accordance with this Agreement:
(a) pay for Deliverables; and
(b) perform any obligations set out in Schedule 4 as Qantas
responsibilities.
3. The Relationship
3.1 Relationship Agreement: If the parties have entered into a period contract
under which Qantas will purchase goods or services from the Supplier from
time to time, the terms of that period contract govern the overall
relationship of the parties in respect of this Agreement but this Agreement
prevails over that period contract to the extent of any inconsistency.
3.2 Contract Manager: Each party appoints the person named in Schedule 2 as its
initial `Contract Manager'. A party may change its Contract Manager by
notice in writing. Any replacement Contract Manager must have the skills
necessary to perform the role of Contract Manager.
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3.3 Authority: Each Contract Manager of a party must have the authority and be
given the responsibility:
(a) to represent that party in relation to this Agreement and make
appropriate decisions on day to day issues in respect of the supply of
Deliverables;
(b) to coordinate the technical aspects of the supply of Deliverables; and
(c) to monitor that party's compliance with its obligations in relation to
this Agreement.
4. Project Plan
4.1 Development: The Supplier must:
(a) develop a `Detailed Project Plan' for inclusion into the Project Plan
detailing for each Milestone:
(i) discrete tasks to be performed by each party and the Deliverables
to be supplied to Qantas; and
(ii) the resources required and timing for completing those tasks and
supplying those Deliverables;
(b) submit the Detailed Project Plan for approval by Qantas within the
period specified in the Project Plan.
4.2 Amendment: If Qantas does not approve any part of the Detailed Project
Plan, the Supplier must make any amendments Qantas reasonably requires.
4.3 Effect: The Detailed Project Plan will be incorporated into the Project
Plan when signed by each party.
5. Change Management
5.1 Change Request: Either party may request revisions (including deletions or
additions) to the Specifications, Schedules or any Project Plan by giving a
notice to the other party (`Change Request') specifying the proposed
changes.
5.2 Procedure: If a Change Request is issued under clause 5.1, the Supplier
must assess the change and submit a written `Change Proposal' to Qantas.
The Change Proposal will be prepared in the 2 stages set out in this clause
5.
5.3 Stage 1: The Supplier must prepare a report showing the results of a
preliminary change investigation which indicates:
(a) whether the change is technically and financially feasible; and
(b) the estimated time and cost necessary to provide the details required
for stage 2.
5.4 Qantas' decision to Proceed: If the stage 1 investigation indicates that
preparing stage 2 of the Change Proposal will cost more than $3,000 then:
(a) the Supplier must notify Qantas of the indicated cost; and
(b) Qantas must notify the Supplier whether to prepare stage 2 of the
Change Proposal.
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5.5 Stage 2: If directed to by Qantas under clause 5.4 (or if the cost of the
preparing stage 2 is less than $3,000), the Supplier must prepare a final
report detailing:
(a) the effect of the change on the supply of Deliverables;
(b) any resulting changes to the Schedules and the Specifications;
(c) the impact on the Project Plan and the cost of the change; and
(d) any impact on any other part of this Agreement.
5.6 Cost: Unless otherwise agreed in writing, the cost of implementing a Change
Proposal (including the cost of preparing a Change Proposal) will be borne
as follows:
(a) by the Supplier, if the change is necessary to enable a Deliverable
(or any part of it) to meet the Specifications; and
(b) by Qantas at a cost agreed between parties, if the change is to
provide different functionality to that specified in the Schedules or
the Specifications or for the Supplier to perform services in addition
to those specified in the Schedules.
5.7 Effect: A change takes effect from the date the Change Proposal is signed
by both parties (or any other agreed date specified in the Change
Proposal).
6. Personnel
6.1 Key Personnel: The Supplier must:
(a) ensure that each Key Person is actively involved in supplying the
Deliverables and performs his or her specified role;
(b) ensure that each Key Person is aware of and complies with the
Supplier's obligations in supplying the Deliverables;
(c) notify Qantas promptly of a `Replacement Key Person' (and their
credentials) if:
(i) any Key Person becomes unable or unwilling to comply with the
requirements of paragraph (a); or
(ii) requested by Qantas because Qantas is not satisfied with the
performance or availability of a Key Person.
6.2 Unavailability: Qantas must within 14 days after receiving notice under
clause 6.1(c), either:
(a) accept the Replacement Key Person, in which case the Supplier must
replace the Key Person with that Replacement Key Person; or
(b) on reasonable grounds, reject the Replacement Key Person. If this
happens:
(i) the Supplier must select and notify Qantas of an alternative
person within 7 days after notice of the rejection; and
(ii) if the parties cannot agree on a suitable Replacement Key Person
within 30 days after Qantas receives notice under clause 6.1(c),
Qantas may immediately terminate this Agreement.
6.3 Security Policies: Qantas will notify the Supplier of its usual staff and
security practices. The Supplier must ensure that any of its Personnel who
attend Qantas' premises, comply with those staff and security practices
while attending those premises.
6.4 Staff Policies: The Supplier and its Personnel must comply with all Qantas
conduct policies:
(a) governing the conduct of contractors when providing work for Qantas;
and
(b) as current from time to time and notified to the Supplier including
the policies referred to in Schedule 16.
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6.5 Qantas Personnel: If Qantas supplies people to work under the direction and
control of the Supplier, the Supplier must ensure a safe system of work for
those people.
6.6 Confidentiality: The Supplier's core business is the supply of games, user
interfaces and contract services to IFE Original Equipment Manufacturers
(OEM) and airlines. The Supplier does not offer to supply the Products and
Services to be provided to Qantas under this Agreement on an exclusive
basis. If the Supplier provides similar Products and Services to another
airline customer, then the Supplier undertakes to ensure that it treats any
information about the Deliverables as confidential.
7. Subcontracting
7.1 Management and approval: The Supplier must:
(a) not engage a subcontractor to perform any of the Supplier's
obligations under this Agreement without first having obtained Qantas'
written consent (which will not be unreasonably withheld); and
(b) ensure all subcontractors:
(i) cooperate with the Supplier and any other subcontractor to the
extent required to enable the Supplier to comply with its
obligations under this Agreement; and
(ii) enter into a written agreement with the Supplier incorporating
all the terms of this Agreement that relate to the subcontracted
work (including but not limited to clause 0 (Termination for
Convenience).
7.2 Prime liability: Notwithstanding the engagement of any subcontractor, the
Supplier will remain primarily liable for the fulfilment of all of its
obligations under this Agreement.
8. Products to be Supplied
8.1 Basic Requirements: The type and quantity of the Deliverables to be
supplied and the Due Date will be as specified in Schedule 7.
8.2 Conformance: The Supplier must supply Deliverables that conform to the
Specifications. That may mean the Supplier must modify, enhance or
configure the Deliverables to meet the Specifications.
8.3 Change in order: Qantas may cancel or reduce the quantity of any
Deliverable ordered by notifying the Supplier before the Due Date for that
Deliverable. If Qantas gives the Supplier that notice:
(a) more than 14 days before the relevant Due Date, Qantas will not be
liable for any amounts or expenses for the cancelled Deliverable;
(b) within 14 days before the relevant Due Date, Qantas will pay to the
Supplier an amount equal to 2.5% of the price for the cancelled
Deliverable; and
(c) if any Deliverables contain Qantas - required modifications or
development services, then payment will be made to the Supplier for
engineering hours actually worked through receipt of notice, in
accordance with clause 15.
9. Staged Supply
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9.1 Delivery: The Supplier must deliver and prepare the Deliverables for
testing in accordance with the Project Plan.
9.2 Progression: The Supplier must not commence performing work or supplying
Deliverables as required for a Milestone until Qantas has signed a
`Progress Report' for the previous Milestone and/or approved progression to
the next Milestone.
9.3 Completion: Once the Supplier has fulfilled all of its obligations for a
Milestone and all Deliverables for that Milestone have been accepted by
Qantas and Qantas has approved progression to the next Milestone, Qantas
will sign a Progress Report for that Milestone.
10. Modifications and Interfaces
10.1 Modifications: If the supply of Deliverables in accordance with Schedule 7
involves the Supplier modifying or adapting the Software or Qantas'
existing software (both `Modified Software'), the Supplier must:
(a) if the modifications or adaptations (`Modifications') are made to the
Software, use its best efforts to include the Modifications in any
subsequent Release or Version of the Software; or
(b) if paragraph (a) does not apply:
(i) develop the Modifications in a manner so as to substantially
limit the need for any re-engineering of the Modifications if
Qantas acquired any subsequent release or version of the Modified
Software; and
(ii) develop the Modifications using development tools that are
commonly available and ensure that, if it wishes, Qantas will be
able to have the Modified Software modified or integrated with
other software at a later date.
10.2 Interfaces: If the Supplier is required to develop and supply any
interfaces (`Interfaces'), the Supplier must:
(a) develop each Interface in a way that will enable it to accommodate
subsequent Releases and Versions of the Software; and
(b) use its best efforts to make each Interface interoperable with a wide
range of software.
10.3 Source code: Unless otherwise agreed in writing, the Supplier will:
(a) place in escrow the Source Code Materials for the Modifications,
Interfaces and the the Licensed Software; and
(b) supply to Qantas the Source Code Materials for the Qantas Software.
10.4 Software Tools: The Supplier must:
(a) advise Qantas in writing of all software tools used to produce the
Modifications where such tools are necessary for ongoing enhancement
or maintenance of the Modifications; and
(b) if specified in Schedule 7, licence or procure a licence for Qantas of
those software tools.
11. Qantas supplied equipment
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11.1 Basis of supply: If Qantas supplies equipment to the Supplier (`Qantas
Supplied Equipment'):
(a) the Supplier acknowledges the Qantas Supplied Equipment is and will
remain at all times the property of Qantas;
(b) the Supplier may only use the Qantas Supplied Equipment for the
purposes of supplying Deliverables to Qantas;
(c) the Supplier must inspect the Qantas Supplied Equipment and satisfy
itself that it is appropriate for the purposes of supplying
Deliverables to Qantas and Qantas gives no warranty as to the
merchantability or fitness for purpose of the Qantas Supplied
Equipment; and
(d) the Supplier's use of the Qantas Supplied Equipment to supply
Deliverables to Qantas does not affect the warranties given by the
Supplier under clause 0 (Warranties).
11.2 Return: The Supplier must return before Final Acceptance of the
Deliverables by Qantas any Qantas Supplied Equipment that is not consumed
during the supply of Deliverables to Qantas.
12. Delivery and Timing
12.1 Timely delivery: The Supplier must use reasonable endeavours to deliver and
install the Products at the Installation Site on or before each Due Date.
12.2 Fixed delivery date: Where Schedule 7 specifies a `Fixed Due Date' or that
delivery must be made not later than a specified date, Qantas may terminate
this Agreement without liability if the Supplier has not delivered and
installed the Product by that specified date. Qantas' right of termination
is in addition to any other remedy Qantas may have against the Supplier for
non-performance.
12.3 Delay: If the Supplier is unable to meet any Due Date it must comply with
clause 13 (Delay) and notify Qantas of its confirmed date for delivery as
soon as possible.
12.4 Acceptance and rejection: The signature of Qantas Personnel on a
consignment or delivery document does not constitute acceptance of the
Products. Qantas will only accept Products in accordance with clause 18
(Acceptance Testing). However, at the time of delivery, Qantas may reject
any Product if it is manifestly non-conforming to the Specifications, the
wrong goods or damaged.
12.5 Part deliveries: Qantas may reject any incomplete deliveries and exercise
its rights as if the Supplier had not delivered the Products.
13. Delay
13.1 Initial response: If the Supplier becomes aware of a potential or actual
Delay, the Supplier must:
(a) immediately notify Qantas of that actual or potential Delay;
(b) prepare and submit to Qantas:
(i) initial and weekly Project Jeopardy Reports as specified in
Schedule 8; and
(ii) work-around plans to overcome the Delay;
(c) take, and ensure that any affected Subcontractor takes, all steps
necessary to comply with the Project Plan;
(d) comply with its work around plans submitted to Qantas and all
reasonable requests made by Qantas to prevent or rectify the Delay;
and
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(e) if necessary, submit a Change Request under clause 5.1 (Change
Management).
13.2 Acceleration: If the Supplier notifies Qantas of a Delay under clause
13.1(a), Qantas may exercise its rights of termination under clause 12.2 if
applicable or:
(a) require the Contract Managers to:
(i) meet within 24 hours after receipt of notice from Qantas; and
(ii) negotiate in good faith to agree on an `Acceleration Plan' to
overcome or minimise the effect of the delay which once signed by
each party will form part of this Agreement;
(b) reduce the price to be paid for the part of the Project affected by
the Delay by a reasonable amount.
13.3 Termination for delay: If the Supplier fails to:
(a) agree on an Acceleration Plan within 14 days of notice of the Delay;
or
(b) comply with the Acceleration Plan agreed upon under clause 13.2(a),
Qantas may immediately terminate this Agreement by giving the Supplier
written notice.
14. Escrow
14.1 Delivery: If Schedule 7 specify that the Source Code Materials for all or
part of the Software are to be held in escrow, the Supplier must,
immediately after signing this Agreement:
(a) deliver to and at all times maintain with an escrow agent acceptable
to Qantas (`Escrow Agent') one copy of the most up-to-date version of
those Source Code Materials;
(b) irrevocably authorise in writing the Escrow Agent to:
(i) release those Source Code Materials to Qantas if Supplier
notifies the Escrow Agent that Supplier has liquidated,
dissolved, ceases to carry on in-flight entertainment games
development business on a regular basis, ceases to maintain the
Licensed Software or Products, or a successor or assignee of
Supplier does not assume the obligations of Supplier.
(ii) allow Qantas to inspect and test the Source Code Materials which
are held in escrow if Supplier has been requested by and has
given permission to Qantas to do so. This permission will not be
unreasonably withheld; and
(c) provide to Qantas a copy the form of authorisation required to release
the Source Code Materials as signed by the Escrow Agent.
14.2 Licence: If the escrow agent validly releases any Source Code Materials to
Qantas:
(a) the Licence (as defined by reference to clause 25.1) will extend to
use of those Source Code Materials; and
(b) Qantas or its contractor may use, adapt and modify those Source Code
Materials to adapt and modify the Software so that Qantas can use and
maintain the Software.
14.3 Escrow Agreement: The parties may agree to enter into a separate escrow
Agreement with an escrow agent but the Agreement must contain at least the
terms specified in clause 14.1(b)(i).
15. Price and Payment
15.1 Competitive pricing: The Supplier warrants that each price payable by
Qantas is no less favourable than the price paid by other purchasers of
similar products or services in similar circumstances.
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15.2 Milestone payment: The Supplier must not invoice Qantas for a Milestone
until Qantas has signed a Progress Report verifying completion of that
Milestone.
15.3 Payment times: Subject to clause 15.2, Qantas must pay each amount payable
for each of the Deliverables on the date and as specified in the Payment
Schedule.
15.4 All costs included: All prices for the Products include:
(a) delivery costs including freight and insurance; and
(b) installation costs (unless specified otherwise in the Schedules).
15.5 Default payment dates: If no payment date is specified in Schedule 9 Qantas
must pay each correctly rendered invoice on a nett monthly basis (i.e. by
the end of the month following the month in which the invoice is received
by Qantas).
15.6 Invoicing: A correctly rendered invoice will clearly identify:
(a) the Deliverables (or Milestone) to which the invoice relates;
(b) the manner of calculating the amount payable by Qantas under the
invoice;
(c) this Agreement and relevant Qantas contact person; and
(d) any other information that may reasonably be required by Qantas from
time to time.
15.7 Firm prices: Unless specified otherwise in Schedule 9 all the prices
payable by Qantas under this Agreement are fixed.
15.8 Method of payment: All payments under this Agreement must be made in U.S.
Dollars and may be made by cheque sent to the Supplier's Address for
Notices or any other method agreed by the parties.
16. Risk and Title
16.1 Risk: Risk in each consignment of the Products will pass to Qantas on
acceptance of the Deliverables under clause 18 (Acceptance Testing).
16.2 Title: Title in each consignment of the Products (in the case of software
only the physical medium) will pass to Qantas upon acceptance of the
Products under clause 18 (Acceptance Testing).
17. Pre-install Testing
17.1 Works tests: The Supplier must, before delivery to Qantas for testing,
carry out its standard works tests to establish that the Products are in
working order and ensure that each Products does not contain faults or
errors.
17.2 Quality assurance: The Supplier must, if requested by Qantas:
(a) provide Qantas with copies of the test results; and
(b) permit Qantas Personnel to be present for testing.
18. Acceptance Testing
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18.1 Test Strategy: The Acceptance Test Strategy set out in Schedule 10 is a
high level acceptance test plan containing the roles and responsibilities
of the parties and Qantas' basic requirements for testing of Deliverables.
18.2 Test Plan: The Supplier must:
(a) prepare and submit to Qantas a detailed acceptance test plan
(`Detailed Test Plan') for Qantas' written approval which conforms to
the Acceptance Test Strategy; and
(b) give Qantas at least 7 days' notice before submitting the Deliverables
to Qantas for Acceptance Testing.
18.3 Obligations under Test Plan: Each party must carry out the tasks allocated
to it in the Detailed Test Plan, including carrying out the Acceptance
Tests.
18.4 Submission of Deliverables: The Supplier must submit the Deliverables for
each Milestone to Qantas on or before the applicable Due Dates.
18.5 Testing: Qantas must, within 30 days (or other period agreed in writing
between the parties) after receiving the Deliverable for testing (or
retesting), notify the Supplier that either:
(a) it accepts the Deliverables, by issuing an Acceptance Certificate to
the Supplier; or
(b) the Deliverables fails to meet the Acceptance Criteria, in which case
Qantas may do any of the following:
(i) reject the Deliverables but require the Supplier to rectify the
Deliverables in which case:
(A) Qantas must notify the Supplier of its reasons for
rejection;
(B) the Supplier must promptly modify, repair or replace that
Deliverables and resubmit it to Qantas for testing within 14
days after Qantas' notice; and
(C) Qantas will retest the Deliverables in accordance with this
clause 18; or
(ii) accept the failed Deliverables, by issuing an Acceptance
Certificate to the Supplier;
(iii) reject the failed Deliverables but continue with other
Deliverables which are accepted by Qantas; or
(iv) terminate this Agreement with immediate effect by giving notice
to the Supplier.
If Qantas exercises its rights under paragraphs (ii) or (iii), the Contract
Price will be reduced by an amount equal to the loss of functionality of
that failure on Qantas, as reasonably determined by Qantas.
18.6 Further Testing: The parties may agree to a longer period in clause 18
(b)(i)(B) in which the Supplier must resubmit the Deliverables for testing
provided that, where the parties cannot agree on that longer period within
the fourteen day period, Qantas may follow clauses 18(b)(iii) or 18(b)(iv).
18.7 Approval of other Deliverables: Acceptance of Deliverables not falling
within the Detailed Test Plan will be subject to Qantas' approval (which
will not be unreasonably withheld).
19. Warranties
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19.1 Performance warranties: The Supplier gives the following `Performance
Warranties':
(a) during the Warranty Period and any Support Period the Deliverables
will provide the functions and meet the performance criteria set out
in the Specifications;
(b) the Products (when supplied) will:
(i) be of merchantable quality;
(ii) be fit for the purpose for which it is provided; and
(iii) be virus free.
19.2 Other warranties: In addition, the Supplier warrants that:
(a) the Services will be supplied:
(i) efficiently, with due care and skill and to the best of the
knowledge and expertise of the Supplier and its Personnel;
(ii) in accordance with all reasonable directions Qantas may give
from time to time; and
(iii) in compliance with all applicable US laws, regulations and
material industry codes of conduct.
(b) it has the right to grant Qantas licences in accordance with this
Agreement;
(c) the Documentation will be complete and accurate and suitable and
sufficient to enable Qantas' Personnel to make full use of the
Deliverables;
(d) it has been informed completely of the scope of the work and possesses
the skill, experience, capacity and resources necessary to perform the
Services;
(e) it has disclosed to Qantas any actual, threatened or potential
litigation in which the Supplier might be involved, which might
materially affect the Supplier's ability to perform its obligations
under this Agreement; and
(f) it has disclosed to Qantas any conflict of interest which may exist or
is likely to arise during the term of the Agreement between itself,
its employees and agents and those of Qantas.
20. Warranty Issues
20.1 Warranty period: The Warranty Period for a Deliverable begins on Acceptance
of that Deliverable.
20.2 Extension: The Warranty Period will be extended by any period taken by the
Supplier to correct a failure of all or any part of any Deliverable to
comply with the Performance Warranties.
20.3 Reports: The Supplier must supply Qantas with monthly Performance Warranty
reports (in a form approved by Qantas) throughout the Warranty Period
specifying:
(a) Failures notified to the Supplier by Qantas;
(b) Failures discovered by the Supplier; and
(c) corrective action taken by the Supplier and the effect of that action.
20.4 Remedies: In case of breach of the warranties contained in clause 19.1,
Supplier will, at its own cost:
(a) promptly correct or replace any defective Software or,
(b) if not practicable, Supplier will accept the return of the defective
Software and refund to Qantas :
(i) the amount actually paid by Qantas for the defective Software,
(ii) a pro rata share of any maintenance fees that Qantas actually
paid to Supplier for the period that such Software was not
useable and was under warranty.
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(c) this section 20.4 sets forth Qantas' exclusive remedy, and Supplier's
exclusive liability, for any breach of warranty contained in clause
19.1.
20.5 Limitations: The warranty provided in clause 19.1 hereof will not apply to
the extent that the breach of warranty or Product defect is not brought to
the attention of Supplier during the applicable warranty period or as a
result of:
(a) Qantas failure to properly install or use the Product in accordance
with the Documentation,
(b) failure of the operating environment or hardware failure,
(c) modification of the Products other than by Supplier,
(d) failure to promptly or properly install a Software Modification or
Version provided to Qantas by Supplier that would have eliminated the
defect,
(e) use of the Products with ambiguous date related data or in a Year 2000
non-compliant operating environment, or
(e) the combination of the Products with other items not provided by
Supplier, but only if the breach would not have occurred from use of
the Product alone with the designated hardware of the Current
Environment existing as of the date of this Agreement.
20.6 Disclaimer: Except as expressly provided in this Agreement, all Warranties,
conditions, representations, indemnities and guarantees with respect to the
Products, Services and the Deliverables, whether expressed or implied,
arising by law, custom, prior oral or written statements by Supplier, its
agents or otherwise (including but not limited to any warranty of
merchantability, fitness for particular purpose, satisfactory quality and
non-infringement) are hereby over-ridden, excluded and disclaimed.
21. Support
21.1 Scope: The Supplier must provide during the Warranty Period and each
Support Period:
(a) the support set out in this clause 0;
(b) any other support specified in Schedule 13; and
(c) any support otherwise agreed in writing between the parties from time
to time.
21.2 Fees: There will be no fees payable by Qantas for support during the
Warranty Period. Qantas must pay the Supplier the Support Fees for the
support provided during each Support Period.
21.3 Breach of Performance Warranty: If the Supplier becomes aware or Qantas
notifies the Supplier of a failure of all or any part of the Deliverables
to comply with the Performance Warranties (`Failure'), the Supplier must
correct the Failure in accordance with the response times specified in
Schedule 13, including by replacing or resupplying all or part of the
Deliverables if necessary.
21.4 Updates: The Supplier must, at no extra cost to Qantas, during the Licence
period specified in Schedule 9:
(a) offer all new Releases and Versions of the Software to Qantas that
Supplier will make generally available as part of its standard
maintenance updates; ; and
(b) if reasonably required to do so by Qantas, demonstrate the
functionality and performance of the new Release or Version.
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21.5 Continuity of Support: The Supplier must continue to provide support for
each new Release or Version forming part of the Software being used by
Qantas until at least 18 months after the next new Release or Version of
that Software has been offered to Qantas.
21.6 Superseded Release or Version: If Qantas does not accept a new Release or
Version offered by the Supplier under clause 21.4, the period specified in
clause 21.5 will start on the date that Qantas notifies the Supplier that
it does not wish to accept the new Release or Version.
21.7 Warranty: The Supplier warrants that any new Version or Release of the
Software will comply with the Performance Warranties in clause 19
(Warranties).
22. Documentation
22.1 Supply: The Supplier must supply to Qantas the Documentation specified in
Schedule 11 and any other documentation normally provided with the
Deliverables. Qantas may make as many copies of the Documentation as it
reasonably requires.
22.2 Requirements: The Documentation must be:
(a) sufficient to allow Qantas Personnel to understand, properly use and
operate the Products; and
(b) current and accurate, which means the Supplier must update the
Documentation when:
(i) a defect in the Documentation is noticed by the Supplier or
brought to the Supplier's attention;
(ii) any Product is upgraded;
(iii) new or replacement Products are supplied by the Supplier in
accordance with this Agreement (for example as part of the
support under clause 21 (Support)).
23. Training
23.1 Supply: The Supplier must provide Qantas with the Training in accordance
with Schedule 12.
23.2 Additional training: Qantas may request additional training at the rates
specified in Schedule 12 (or, if none are specified, at the Supplier's
current training rates).
24. Assignment of Intellectual Property Rights (IPR)
24.1 Qantas Software: The Supplier assigns to Qantas all existing and future IPR
in the Qantas Software and any Documentation for the Qantas Software.
(a) the Supplier must, at its own cost, do all things and execute all
documents necessary to effect the assignments. he Supplier must supply
to Qantas the most current version of the Source Code Materials for
the Qantas Software on:
(i) Acceptance of the Qantas Software; and
(ii) the supply of any new Release or Version of the Qantas Software.
(b) the Supplier may use the Qantas Software only to provide support to
Qantas Group Companies.
24.2 Licensed Software: the Supplier does not assign any respective rights,
titles and interest in the Licensed Software and shall retain all rights,
title and interest in all modifications and derivative works thereof made
by the Supplier.
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25. Licences
25.1 Licence Rights: The Supplier grants Qantas a non exclusive, royalty free,
paid-up licence during the Licence period specified in Schedule 9 to use
the object code version of the Licensed Software for Qantas Group Company
business purposes;
25.2 Additional rights: Each licence granted to Qantas in this clause includes
the rights to:
(a) use the Licensed Software to conduct any acceptance tests;
(b) use the Licensed Software on any hardware;
(c) assign that licence to any third party but only for the purpose of the
third party using that licence for providing services to Qantas with
prior written consent from the Supplier, which will not be
unreasonably withheld;
(d) make as many back-up or stand-by copies of the Licensed Software as
Qantas reasonably requires; and
(e) sub-licence its rights under clause 25.1 to the extent necessary for
Qantas to install and operate the Licensed Software.
25.3 Conditions and limitations: Schedule 7 specifies any conditions or
limitations to be imposed upon or with respect to any licence granted to
Qantas under this clause.
25.4 Third Party Software: The Supplier must reasonably procure for Qantas
licences to use any Third Party Software set out in Schedule 7 on terms no
less favourable than those specified in this clause 25 for the Licensed
Software.
25.5 Conversion: If Qantas wishes to change the nature, extent or duration of a
licence for Licensed Software (`revised licence'), the Supplier must credit
Qantas with the value of the fee paid for the existing licence and apply
that fee toward the fee for the revised licence of the Licensed Software.
If the revised licence is for a reduced period, the credit will be for the
unexpired portion of the existing licence period calculated on a pro rata
basis. If the revised licence is for a reduced period, no credit will be
given for the fees already paid for in advance by Qantas.
26. Intellectual Property Warranty and Indemnity
26.1 Warranties: The Supplier warrants that:
(a) the Supplier is capable of validly making the assignments and granting
the licences in clauses 24 (Assignment of Intellectual Property
Rights) and 25 (Licences); and
(b) use of the Deliverables and Documentation by Qantas in accordance with
this Agreement will not infringe the IPR of any person.
26.2 Notification: In the event of an IPR Claim, the party receiving the claim
must notify the other party of that claim in writing as soon as
practicable.
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26.3 Action required: If an IPR Claim is made against Qantas the Supplier must,
at its cost, defend Qantas against the IPR Claim and Qantas agrees to
provide any assistance the Supplier reasonably requires in defending the
IPR Claim and the Supplier must at its option:
(a) modify the Deliverables so that the use of the Deliverables ceases to
infringe the rights of that person (while still complying with the
Warranties);
(b) procure promptly for Qantas the right to use the Deliverables free of
any claim or liability for infringement; or
(c) replace the Deliverables promptly with non-infringing substitute
products that complies substantially with the Warranties in clause 19
(Warranties).
26.4 Settlement: If the Supplier fails to comply with clause 26.3 within 60 days
after Qantas notifies the Supplier of an IPR Claim, the Supplier must
comply with any reasonable settlement of that IPR Claim (including by
paying money) negotiated by Qantas after that date.
26.5 Replacements: If the Supplier replaces all or part of the Deliverables
under clause 26.3(c), the Supplier must procure for Qantas free of charge
to Qantas those replacement products or the right to use them on terms no
more onerous than those contained in this Agreement.
27. Confidential Information
27.1 Definition: In this Agreement `Confidential Information' of a `Disclosing
Party' means:
(a) all information:
(i) disclosed (whether orally, in writing or in any other form) by
the Disclosing Party to the other party (`Recipient') for the
purposes of this Agreement; and
(ii) treated by the Disclosing Party as confidential; and
(b) all copies, notes and records and all related information generated by
the Recipient based on or arising out of any such disclosure.
27.2 Confidentiality: The Recipient:
(a) must keep the Confidential Information confidential;
(b) may use the Confidential Information but only in relation to this
Agreement; and
(c) may disclose the Confidential Information to enable it to perform its
obligations under this Agreement but only:
(i) to Permitted Employees and Permitted Disclosees; and
(ii) to the extent that the Permitted Employee or Permitted Disclosee
has a need to know.
27.3 Permitted Employees: A `Permitted Employee' is an officer or employee of
the Recipient (or in the case of Qantas, an officer or employee of a Qantas
Group Company) who before disclosure has been directed and undertaken
orally or in writing to comply with clauses 27.2, 27.5, 27.7 and 27.8(b)
(`Undertaking').
27.4 Permitted Disclosees: A `Permitted Disclosee' is a person (other than a
Permitted Employee) who:
(a) who has been approved by the Disclosing Party before any disclosure of
Confidential Information is made; and
(b) has agreed in writing to comply with clauses 27.2, 27.5, 27.7 and
27.8(b) (also an `Undertaking').
27.5 Undertakings: The Recipient must enforce each Undertaking.
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27.6 Other Obligations: The Recipient must:
(a) not copy the Confidential Information or any part of it other than as
strictly necessary for the purposes of this Agreement and must ▇▇▇▇ if
required by the Disclosing Party any such copy `Confidential -
[Disclosing Party]';
(b) safeguard the Confidential Information in the same way as the
Recipient safeguards its own confidential information;
(c) implement security practices against any unauthorised copying, use,
disclosure (whether that disclosure is oral, in writing or in any
other form), access and damage or destruction;
(d) immediately notify the Disclosing Party if the Recipient suspects or
becomes aware of any unauthorised copying, use or disclosure in any
form; and
(e) comply with any reasonable direction issued regarding a suspected or
actual breach.
27.7 Return of materials: On termination of this Agreement, or earlier on
reasonable request by the Disclosing Party (as long as that request does
not prevent or limit the Recipient's ability to perform its obligations
under this Agreement) the Recipient must promptly return to the Disclosing
Party or destroy any or all copies of Confidential Information, in which
case any right to use, copy and disclose that Confidential Information
ceases.
27.8 Survival: The Recipient's obligations under this clause 0:
(a) do not apply to the extent that information is:
(i) independently developed or known by the Recipient;
(ii) public knowledge (otherwise than as a result of a breach of this
Agreement); or
(iii) required to be disclosed or retained by law; and
(b) continue indefinitely in relation to Confidential Information, even if
that Confidential Information is returned to the Disclosing Party or
destroyed.
28. Performance Bond
Intentionally left blank
29. Alliance Partners
29.1 If requested to do so by Qantas, the Supplier will enter into an Agreement
with one or more of the Alliance Partners on terms and conditions no less
favourable to the Alliance Partner than those provided to Qantas in this
Agreement, so long as the Agreement with the Alliance Partner is for
Deliverables that are the same as the Deliverables that Qantas is acquiring
from the Supplier under this Agreement.
29.2 This Agreement conveys no obligation on any Alliance Partner to acquire any
Deliverables from the Supplier.
29.3 This Agreement conveys no obligation on the Supplier to amend or replace
any of the terms, conditions or prices in existence at the date of this
Agreement between the Supplier and any Alliance Partner.
29.4 In determining prices for any Deliverables which may be offered to an
Alliance Partner the Supplier or an Alliance Partner may, in addition to an
adjustment for escalation, seek an equitable adjustment due to variances in
volume (that is where quantities are less than those required by Qantas
under this Agreement) and /or timing for delivery (that is, where the lead
time for delivery of the Deliverables ordered is less than that required by
Qantas under this Agreement).
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29.5 This Agreement conveys no obligation on the Supplier to enter an Agreement
with any Alliance Partner for the supply of the Deliverables.
30. Indemnities
30.1 Subject to clause 31, The Supplier must defend and indemnify Qantas, Qantas
Group Companies and their Personnel from and against all Damages suffered
or incurred by any of those indemnified to the extent that those damages
are suffered or incurred as a result of, whether directly or indirectly,
of:
(a) an IPR Claim;
(b) any breach of this Agreement by the Supplier;
(c) a claim, demand, suit, action or proceeding by a third party arising
from an act or omission of the Supplier or its Personnel in connection
with this Agreement whether negligent or not;
(d) without limiting paragraph 30.1(c) any act of omission of the Supplier
or its Personnel in connection with this Agreement resulting in or
contributing to:
(i) claims by any third party against Qantas in respect of personal
injury or death; or
(ii) loss of or damage to physical property.
30.2 The Supplier shall have no indemnity obligation to Qantas, Qantas Group
Companies and their alliance partners, currently British Airways, and their
Personnel under this Section to the extent the infringement claim results
from:
(a) a correction or modification of the Product not provided by Supplier,
such as a Modification made by Qantas;
(b) the failure to promptly install a Release provided to Qantas by
Supplier ; or
(c) the combination of the Product with other items not provided by
Supplier, unless the infringement would have occurred from use of the
Product alone.
30.3 Subject to clause 31, Qantas must defend and indemnify the Supplier and
their Personnel from and against any Damages suffered or incurred by any of
those indemnified to the extent that those damages are suffered or incurred
as a result of, whether directly or indirectly of:
(a) an IPR claim
(b) any breach of this Agreement by Qantas
(c) a claim, demand, suit, action or proceeding by a third party from an
act or omission of Qantas or its Personnel in connection with this
Agreement whether negligent or not;
(d) without limiting paragraph 30.3(c) any act or omission of Qantas or
its Personnel in connection with this Agreement resulting in or
contributing to:
(i) claims against the Supplier in respect of personal injury or
death; or
(ii) loss or damage to physical property.
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31. Liability
31.1 Limitation: If a party makes a claim against the other party for any act or
omission of the other party relating to this Agreement (including claims
based in contract, tort (including negligence), common law, equity, statute
or otherwise) that other party's liability is limited in aggregate to the
greater of:
(a) $1 million;
(b) the insurance claimable for that liability; and
(c) the aggregate of the amounts actually paid by Qantas to the Supplier
under this Agreement and the Contract Price.
31.2 Exclusion: The limitation of liability in clause 31.1 does not apply to
(a) the Supplier's liability to indemnify Qantas under clauses 27
(Confidential Information), 30.1(a), 30.1(c) and 30.1(d) which is
unlimited; or
(b) Qantas' liability to indemnify the Supplier under clauses 27
(Confidential Information), 30.3(a), 30.3(c) and 30.3(d) which is
unlimited.
31.3 Definition: In this clause, `Contract Price' means the total amount paid
and payable by Qantas to the Supplier under this Agreement.
32. Insurance
32.1 Policies: The Supplier must take out valid and enforceable insurance
policies:
(a) of the types and for the coverage specified in Schedule 14;
(b) with insurers and on terms approved by Qantas; and
(c) that are primary and without any right of contribution by Qantas or
any insurance effected by Qantas.
32.2 Content: If required by Qantas the Supplier must ensure that the insurance
policies:
(a) name Qantas and its officers, employees and agents as `Additional
Insured' persons;
(b) contain clauses providing that each of the insured and Additional
Insured has a separate insurable interest; and
(c) the Additional Insured are not affected by any breach of warranty by
the Supplier.
32.3 Maintenance: The Supplier must within 30 days of installation on Qantas
aircraft and each year on the anniversary of that date prior to termination
of this Agreement provide Qantas with certificates from the Supplier's
insurers certifying that the Supplier has insurance as required by this
clause 32.
33. Taxation and Employer Obligations
33.1 Indemnity: The Supplier is responsible for and must pay or reimburse Qantas
for and indemnify Qantas against all taxes (other than GST), charges, fees
and other imposts of whatever kind (including any fine or penalty) that are
in force at the date of this Agreement and are levied, assessed, charged or
collected in connection with:
(a) this Agreement (including payments made under this Agreement);
(b) the sale or licensing of the Deliverables under this Agreement; or
(c) the performance of the Services under this Agreement.
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33.2 Change in tax law: Other than as set out in clause 34, if any applicable
law:
(a) increases or decreases the rate of any taxes, charges, fees and other
imposts of whatever kind levied, assessed, charged or collected which
are directly related to the provision of, or payment for, goods and
services under this Agreement (`Taxes'); or
(b) introduces any new Taxes or abolishes previously applicable Taxes, and
as a result the amount payable by Supplier for Taxes is increased or
decreased, Supplier and Qantas will negotiate in good faith any
increase or decrease of the prices.
33.3 Inclusions: Prices include sales tax unless Qantas quotes in writing its
sales tax registration number or provides evidence in some other form
acceptable to the Supplier that sales tax should not be charged. Prices and
invoices must separately itemise sales tax. Any future adjustment to sales
tax rates (increases or decreases) will adjust the price of the
Deliverables for all sales affected by the tax amendments.
33.4 Claims: If requested by Qantas, the Supplier must cooperate in reviewing
and making a claim for a refund of sales tax. The Supplier agrees that if
it is determined that sales tax charged in this Agreement is found to be
overpaid, then any amount refunded to the Supplier must be repaid to Qantas
within 30 days of receipt by the Supplier.
33.5 Deductions: Where required to do so by relevant taxation legislation or
regulation, Qantas will deduct taxes from payments to the Supplier, except
where the Supplier can provide evidence issued by the relevant taxation
authority of an exemption from, or rate variation of, such taxes. Where any
taxes are deducted, Qantas will supply to the Supplier evidence of the
payment of such taxes.
33.6 Payroll Taxes: The Supplier indemnifies Qantas in respect of any claim (and
all costs and payments associated with any claim) whether or not the
Supplier is liable at law for the amount the subject of the claim, which
may be made against Qantas by, or on behalf of:
(a) a State or Territory Payroll Tax Office in respect of any payroll tax
or penalties that the office may seek to recover from Qantas in
respect of any amounts paid to the Supplier under this Agreement; and
(b) any revenue raising authority including the Commissioner of Taxation
in respect of any other payment, liability or penalty that the
authority may seek to recover from Qantas in respect of any amounts
paid to the Supplier under this Agreement.
33.7 Tax Instalments: The Supplier must ensure that it complies with all
obligations relating to payments of tax instalment deduction, deductions
from prescribed payments, fringe benefits tax, superannuation, payroll tax
and any other taxes or levies imposed upon an employer which arise in
respect of any amounts paid to the Supplier under this Agreement and that
it complies with all requirements imposed on an employer under the relevant
legislation to keep records, lodge returns and provide information in
relation to such obligations. The Supplier must provide to Qantas upon
request proof that these obligations have been complied with.
34. Goods and Services Tax
34.1 GST Definition: 'GST' means any goods and services tax imposed by
legislation enacted by the Commonwealth Government of Australia including
but not limited to a tax imposed by the A New Tax System (Goods and
Services Tax) ▇▇▇ ▇▇▇▇ (C'th) and the related imposition Acts of the
Commonwealth.
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34.2 Supply Definition: In this clause, 'Supply' has the meaning given to it by
the legislation enacted or amended from time to time by the Commonwealth
Government of Australia in relation to the imposition of GST.
34.3 Base Price: Notwithstanding any other clause in this Agreement, the amount
payable for the Supply of any goods, services or other things under this
Agreement (other than as required by this clause) ('Base Price') has not
been calculated to include GST.
34.4 GST: If GST is imposed on any Supply made pursuant to this Agreement,
Qantas must pay, in addition to the Base Price an amount calculated by
multiplying the prevailing GST rate by the Base Price. Subject to clause
34.6, any amount payable under this clause 34.4 is payable on the day that
payment of the Base Price (or part of the Base Price) for the Supply that
has given rise to the obligation to pay GST, is required pursuant to this
Agreement.
34.5 TPA Warranty: Prior to calculating the additional amount payable pursuant
to clause 34.4, the Supplier agrees to adjust the Base Price to reflect any
abolition or reduction of taxes which has occurred as result of or in
connection with the imposition of the GST and represents and warrants that
it will pass on to Qantas the full benefit of the abolition or reduction of
such taxes and will otherwise comply with the provisions of Part VB of the
Trade Practices ▇▇▇ ▇▇▇▇ (C'th).
34.6 Tax Invoice: The Supplier must ensure that any invoice or other request or
demand for payment of Supplies provided by it to Qantas shall constitute a
tax invoice under the relevant GST legislation or any ATO Public Ruling and
will enable Qantas to claim input tax credits in respect of Supplies to
which the invoice relates. No amount shall be due and payable by Qantas in
respect of any Supply under this Agreement unless Qantas has received from
the party making the Supply a tax invoice which complies with this clause.
34.7 Co-operation: The parties agree to use reasonable efforts to do everything
required by the relevant GST legislation or any ATO Public Ruling to enable
or assist the other party to claim or verify any input tax credit, set off,
rebate or refund in respect of any GST paid or payable in connection with
Supplies under this Agreement.
34.8 Other Costs: If any amount payable by Qantas under this Agreement is
calculated by reference to any cost, expense or other liability ('Cost')
incurred by any person including the Supplier, the Cost for the purposes of
that calculation shall be the amount of the Cost actually incurred by the
relevant party less the amount of any input tax credits (as defined in the
relevant GST legislation) which that party is entitled to claim in respect
of that Cost. The Supplier must provide details of the Cost and any input
tax credits to Qantas on demand.
35. Escalation and Dispute Resolution
35.1 Requirements: Before a party (`Notifying Party') seeks any external dispute
resolution in relation to this Agreement, it must follow the escalation
procedure set out in clause 35.2.
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Page 25 Confidential
35.2 Procedure: The Escalation procedure is as follows:
(a) the Notifying Party's Contract Manager must notify the other Contract
Manager, setting out the reasons for its dissatisfaction or the
alleged breach (`Issue');
(b) the Contract Managers must meet and discuss the Issue;
(c) if the Contract Managers cannot resolve the Issue within 10 days of
notification of the Issue, each Contract Manager must notify the
respective parties' main representative (the person specified in
Schedule 15 or his or her nominee);
(d) each parties' representative must meet and attempt to resolve the
Issue; and
(e) if the parties' representatives cannot resolve the Issue within 10
days after notice of the Issue to the representatives, Qantas may
request the Supplier's chief executive officer to meet with Qantas'
General Manager for Information Technology and attempt to resolve the
Issue.
35.3 Urgent Relief: Nothing in this clause 35 prevents a party from seeking
urgent interlocutory relief.
36. Termination
36.1 By Supplier: The Supplier may terminate this Agreement if Qantas has
breached clause 15 (Price and Payment) of this Agreement and fails to
remedy that breach within 60 days after receiving notice requiring it to do
so.
36.2 By Qantas: Qantas may terminate this Agreement:
(a) by notice in accordance with clauses 6.2(b)(ii) (Personnel), 12
(Delivery & Timing), 13.3 (Termination for Delay), or 18.5(b)
(Acceptance Testing)
(b) immediately by notice if the Supplier breaches any provision of this
Agreement and that breach:
(i) is not capable of being remedied; or
(ii) is capable of being remedied but the Supplier fails to remedy the
breach within 60 days after receiving notice requiring it to do
so; or (c) immediately by notice if any event referred to in
clause 36.3 happens to the Supplier.
36.3 The Supplier must notify Qantas immediately if:
(a) it disposes of the whole or any part of its assets, operations or
business other than in the normal course of business;
(b) any step is taken to enter into any arrangement between the Supplier
and its creditors;
(c) the Supplier ceases to be able to pay its debts as they become due;
(d) the Supplier ceases to carry on business;
(e) any step is taken by a mortgagee to enter into possession or dispose
of the whole or any part of the Supplier's assets or business;
(f) any step is taken to appoint a receiver, a receiver and manager, a
trustee in bankruptcy, a liquidator, a provisional liquidator, an
administrator or other like person of the whole or any part of the
Supplier's assets or business;
(g) the Supplier is a partnership and:
(i) any member of the partnership is declared bankrupt; or
(ii) any step is taken to dissolve the partnership; or
(h) there is any material change in the direct or indirect beneficial
ownership or control of the Supplier.
37. Termination for Convenience
--------------------------------------------------------------------------------
Page 26 Confidential
37.1 Qantas may terminate this Agreement in whole or part at will by giving
notice to the Supplier. Except if clause 8.3 (Change in Order) applies,
Qantas will compensate the Supplier a reasonable amount for loss
unavoidably suffered by the Supplier as a result of the termination
providing:
(a) the Supplier provides evidence of the loss having been suffered;
(b) the Supplier uses its best efforts to mitigate against any such loss;
and
(c) the amount payable by Qantas is limited to the lesser of:
(i) the Contract Price remaining unpaid on the date of termination;
or
(ii) if performance is in Milestones, the Contract Price remaining
unpaid for that Milestone.
38. Effects of Termination
38.1 On termination of this Agreement by either party:
(a) the Supplier must stop working on, and seek to cancel the supply of
any incomplete or undelivered Deliverables (`Work in Progress')
(unless otherwise agreed between the parties) and if required by
Qantas deliver the Work in Progress to Qantas;
(b) both parties must pay all amounts owed by it in connection with this
Agreement, including under any indemnities;
(c) clauses 19 (Warranties) for Deliverables Finally Accepted, 0
(Licences) for Software Finally Accepted, 26 (Intellectual Property
Warranty and Indemnity), 30 (Indemnities), 33 (Taxation and Employer
Obligations) and 38 (Effects of Termination) will continue;
(d) the obligations of confidentiality (but not the rights to use or
disclose) under clause 27 (Confidential Information) will continue to
apply to the parties;
(e) if prior to expiry of the Warranty Period:
(i) Qantas must promptly notify the Supplier which parts of the
products supplied under this Agreement Qantas elects to return
(`Returned Products') or retain (`Retained Products');
(ii) any licence granted under this Agreement with respect to
Returned Products will cease;
(iii) any licence granted under this Agreement with respect to the
Retained Products will continue;
(iv) the Supplier must:
(A) promptly remove the Returned Products; and
(B) immediately pay to Qantas the pro-rata amount paid by Qantas
to the Supplier for the Returned Products before the date of
termination; and
(C) Qantas will pay for Licensed Products and services rendered
up to the time of termination
(v) Qantas must pay the Supplier a mutually agreed amount for the
Retained Products and any Services provided before the date of
termination and not paid for, less any amount owed by the
Supplier to Qantas in connection with this Agreement, including
under any indemnity.
39. Return of Materials
Upon request by Qantas or Supplier and on termination or expiry of this
Agreement Qantas or the Supplier must immediately:
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Page 27 Confidential
(a) return to the respective parties all material or other property of the
other party (including materials containing Confidential Information
belonging to the other party) and all copies of them; or
(b) if requested by the other party, destroy the material referred to in
paragraph (a) and certify in writing to the other party that material
has been destroyed.
40. Money Recoverable by Qantas
Any refunds, damages, liquidated damages, costs and expenses recoverable by
Qantas from the Supplier as a result of the Supplier's breach of this
Agreement may be deducted from any performance bond or from money then due
to the Supplier under this Agreement and if that money is insufficient for
that purpose, the balance remaining unpaid will be a debt due by the
Supplier to Qantas and may be:
(a) set off against any other money due to the Supplier by Qantas under
this or any other Agreement between Qantas and the Supplier; or
(b) recovered from the Supplier by Qantas in any court of competent
jurisdiction.
41. General
41.1 Public Statement: Unless required by law, the Supplier may not make any
public statement about this Agreement or the Services unless it has first
obtained written consent from Qantas.
41.2 All things necessary: The Supplier must:
(a) use reasonable efforts to do all things necessary or desirable to give
full effect to this Agreement; and
(b) refrain from doing anything that might hinder performance of this
Agreement.
41.3 Notices: A party notifying or giving notice under this Agreement must give
notice:
(a) in writing;
(b) addressed to the address of the other party specified in Schedule 15
or as altered in accordance with clause 41.5; and (c) left at or sent
by prepaid post or by fax to that address.
41.4 Service of Notice: A notice given in accordance with clause 41.3 is
received:
(a) if left at the recipient's address, on the date of delivery;
(b) if sent by prepaid post, 5 days after the date of posting; and
(c) if sent by fax, when the sender's facsimile system generates a message
confirming successful transmission of the total number of pages of the
notice.
41.5 Variation to address: Each party must advise the other in writing of an
address for notices which they may, at any time, change by written notice
to the other party.
41.6 Relationship of parties: Nothing in this Agreement or any circumstances
associated with it or its performance give rise to any relationship of
agency, partnership or employer and employee between Qantas and the
Supplier or between Qantas and any Personnel of the Supplier.
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Page 28 Confidential
41.7 Waiver: If a party:
(a) has a right arising from another party's failure to comply with an
obligation under this Agreement; and
(b) delays in exercising or does not exercise that right, that delay in
exercising or failure to exercise is not a waiver of that right or any
other right.
41.8 Assignment: Qantas shall not assign, delegate or otherwise transfer this
Agreement or any of its rights or obligations hereunder without Supplier's
prior approval, except that Qantas may assign this Agreement to any Qantas
Group Company if such assignee executes an Agreement which states that it
shall be bound by the terms of this Agreement.; Qantas acknowledges that
the Supplier may assign this Agreement in the situation whereby the
Supplier has a change of ownership, and the acquiring party intends to
continue to carry on in-flight entertainment games business on the same
terms and conditions as set out in this Agreement. If the acquiring party
is a company that Qantas elects not to do business with then Qantas may
elect to exercise its rights under clause 37 and proceed to terminate this
Agreement. If Qantas does terminate the Agreement following the change of
ownership of the Supplier then Qantas' obligation to pay any Licence fees
ceases on the date of termination.
41.9 Entire Agreement and variation: This Agreement including its schedules and
any attachments:
(a) constitutes the entire Agreement between the parties as to its subject
matter;
(b) in relation to that subject matter, supersedes any prior understanding
or Agreement between the parties and any prior condition, warranty,
indemnity or representation imposed, given or made by a party; and
(c) may only be amended in writing signed by both parties.
41.10 Confidentiality: Each party agrees (except with the prior written consent
of the other):
(a) not to commercially advertise the supply of these services to Qantas;
(b) to treat as strictly confidential all information supplied by either
party to the other and to use its best endeavours to prevent details
of this Agreement becoming known to third parties other than its legal
and financial advisers and Alliance Partner, currently British
Airways.
41.11 Priority of documents: If there is any inconsistency between any of the
terms of this Agreement the order of priority for the purposes of
construction is:
(a) clauses 1 to 41;
(b) the Schedules;
(c) the Specifications; and
(d) any other attachments.
41.12 Governing law: This Agreement is governed by the laws applicable in the
State of New South Wales and each party submits to the jurisdiction of the
courts of that State.
--------------------------------------------------------------------------------
Page 29 Confidential
--------------------------------------------------------------------------------
QANTAS SOFTWARE SUPPLY & SUPPORT AGREEMENT
SCHEDULES - GAMES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Schedule 1
COMMENCEMENT DATE
--------------------------------------------------------------------------------
This Agreement commences on the day that this Agreement is signed.
--------------------------------------------------------------------------------
Schedule 2
CONTRACT MANAGERS
--------------------------------------------------------------------------------
Qantas Airways: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Delivery Manager
Supplier: ▇▇▇▇ ▇▇▇▇▇▇▇, Program Manager.
--------------------------------------------------------------------------------
Schedule 3
KEY PERSONNEL
--------------------------------------------------------------------------------
Qantas Airways: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Marketing Product
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Delivery Manager
▇▇▇▇ ▇▇▇▇▇▇▇▇, IFE Co-Ordinator, Inflight Entertainment
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Producer Inflight Entertainment
Supplier: ▇▇▇▇ ▇▇▇▇▇▇▇, Program Manager
▇▇▇▇ ▇▇▇▇▇▇▇, Software Manager
▇▇▇▇ ▇▇▇▇▇▇▇, Vice President of Sales
--------------------------------------------------------------------------------
Schedule 4
ROLES AND RESPONSIBILITIES
--------------------------------------------------------------------------------
The Supplier must perform all of the roles and responsibilities set out in
document no. IFE-802- Games - PMR-1.0, Scope of Work and Program Management
Requirements for Games, and document no. IFE-801-Games - SOR - 1.0. Statement of
Requirements for Games.
A summary of the roles of both parties are as follows:
Supplier
(a) Provide the object code of up to 10 games selected by Qantas
(a) Carry out any Integration testing of the suite of games to ensure that they
run on the Qantas Rockwell ▇▇▇▇▇▇▇ TES IFE system.
(b) Carry out any personalisation of the graphics of the games requested by
Qantas.
(c) Configuration, installation and testing of the software on the Qantas
Rockwell ▇▇▇▇▇▇▇ TES IFE system.
(d) Provide installation support during installation and integration testing
(e) Provide technical support during installation and integration testing and
throughout the term of this Agreement
--------------------------------------------------------------------------------
Page 30 Confidential
Qantas
(a) Provide any information as required in order for Suppler to supply the
Deliverables.
(b) Arrange for appropriate facilities for Supplier to be able to conduct the
configuration, installation and testing required by Qantas.
(c) Make payment to the Supplier for any Deliverables associated with this
Agreement on verification of a validly submitted invoice.
--------------------------------------------------------------------------------
Schedule 5
SPECIFICATIONS
--------------------------------------------------------------------------------
The Supplier must perform all of the roles and responsibilities set out in the
Specifications. The specifications for technical and product requirements of the
games software are set out in #IFE - 801-Games -SOR -1.0, Statement of
Requirements. This includes the specification for the Current Environment for
the IFE games software which is Rockwell ▇▇▇▇▇▇▇ TES Core E IFE system that will
be installed on all classes of the Qantas 747 fleet.
The specifications for the scope of work and project management requirements for
the delivery of the Deliverables.are set out in #IFE - 802-Games -PMR -1.0 .
--------------------------------------------------------------------------------
Schedule 6
PROJECT PLAN
--------------------------------------------------------------------------------
Supplier will develop, implement and maintain a Project Plan using the
guidelines and approach specified in document #IFE - 802- PMR-1.0. The Project
Plan will be agreed with the Qantas Contract Manager and the Supplier will
provide progress reports to the Qantas Contract Manager to ensure that the
Project Plan and its schedule is adhered to.
--------------------------------------------------------------------------------
Schedule 7
DELIVERABLES
--------------------------------------------------------------------------------
o Software
Supplier will supply the object code for a suite of 10 games that have been
designed to operate on the Qantas Rockwell ▇▇▇▇▇▇▇ TES Core D IFE system rack.
Qantas can select these games from the following titles:
Solitaire
▇▇▇▇▇ ▇▇▇▇
Backgammon
Othello
Tetris
Twins Cafe Match game
Zero G
Trivia Game
Hangman
Professional Gold Digger
Draw Poker
Chinese Solitaire
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Page 31 Confidential
Crossword
Tic-Tac-Toe
Noisy Farm
Slots
Keno
Each of these games is available in English as well multiple languages. Multi
-language versions of a game are counted as the same game, not individual games.
Qantas may substitute any game from the current list at any time, at no
additional cost from the Supplier. Any costs associated with integrating the new
game with the Rockwell ▇▇▇▇▇▇▇ IFE system software will be Qantas' expense.
Game Content Package Updates
Game content package updates are available for Trivia and Crosswords
Trivia Game -Update packages of 500 questions are available for the initial and
additional topics typically with a 4 week lead time.
Crossword Game - Puzzles categories can also be selected for target audience
demographics and destination themes. Puzzles are available in packages of 20.
Testing
Supplier will carry out all necessary testing of the software from the design
phase through to final installation. Supplier will use test matrixes and
automated data input to test all reasonable input to a software module. The
software will be tested at Supplier's facilities and then configured, installed
and tested at the Rockwell ▇▇▇▇▇▇▇ facility on the Qantas TES rack. Cost for any
testing will be at the expense of Qantas.
Supplier will provide installation engineering support at either Rockwell
▇▇▇▇▇▇▇ or a location nominated by Qantas for the rates itemised in the pricing
schedule.
Supplier will pass on to Qantas any Rockwell ▇▇▇▇▇▇▇ charges for integration,
fees and rack time for any future deliveries of additional game changes and/or
graphics changes.
Supplier will provide graphic design services to personalise the graphics of the
games at the request of Qantas.
Supplier will provide the Program Management Services set out in the Qantas
Scope of Work and Project Management document #IFE - 802- PMR-1.0. Due Date of
each of the Deliverables will be agreed with the Qantas Contract Manager.
The Qantas Contract Manager will advise the Supplier of the location of the
Installation Site for the Deliverables at the same time.
Warranty Period for any software that the Supplier supplies to Qantas will be
for 90 days after the Acceptance of the Product.
The IFE Project has certain deadlines set by third party suppliers which are
Fixed Due Dates. The Qantas Contract Manager will advise the Supplier of any
Fixed Due Dates for any of the Deliverables.
--------------------------------------------------------------------------------
Page 32 Confidential
--------------------------------------------------------------------------------
Schedule 8
CHANGE MANAGEMENT AND DELAY
--------------------------------------------------------------------------------
Supplier will comply with the procedures for change management that are set out
in document #IFE-802-PMR- 1.0.
If Supplier anticipates that there will be a Delay, Supplier should advise the
Qantas Contract Manager in a Project Jeopardy Report. This report should
identify the issue, any proposed "short term" solutions to overcome the Delay
temporarily as well as the proposed long - term solution and revised delivery
dates.
--------------------------------------------------------------------------------
Schedule 9
PAYMENT SCHEDULE
--------------------------------------------------------------------------------
The Licence period
The Licence period for the games will commence on 1 July 2001 and will continue
in effect for an initial term of 12 months (the `Term') unless terminated in
accordance with this Agreement, then this Agreement will then be automatically
renewed for a further 12 months. It will continue to be renewable on the
anniversary of this date until such time as either party gives 45 days written
notice of termination.
Licence fees
The agreed annual licence fees for the Qantas fleet of [Confidential Treatment
has been requested for this portion of this Exhibit] aircraft that are scheduled
to have the Rockwell ▇▇▇▇▇▇▇ TES IFE system installed is [Confidential Treatment
has been requested for this portion of this Exhibit].
If Qantas takes out a licence for additional aircraft, then the Licence fee for
each additional aircraft will be [Confidential Treatment has been requested for
this portion of this Exhibit] per aircraft.
Payment schedule for Licence fees
Supplier will invoice Qantas for the annual fees at the commencement of the Term
and Qantas will pay the Supplier in quarterly installments. i.e. every 3 months.
Milestone Payments
The Contract Managers will agree on the Milestones that make up the Project
Plan. Supplier will invoice Qantas for the number of hours required to deliver
those Milestones on satisfactory completion or delivery of those Milestones. The
Supplier will then invoice Qantas and Qantas will make payment to the Supplier
upon final Acceptance of the Milestone.
Charges for personalisation of the games graphics:
If Qantas requires any personalisation of the games graphics, then the fees for
any of this work is listed below.
--------------------------------------------------------------------------------
Page 33 Confidential
----------------------------------------------------------------------------
Services Type Pricing
----------------------------------------------------------------------------
Background graphics development
----------------------------------------------------------------------------
Menu Root Page development [Confidential
----------------------------------------------------------------------------
Menu Sub Page development Treatment has been
----------------------------------------------------------------------------
Card back graphics (all games) requested for this
----------------------------------------------------------------------------
Logo placement (all games) portion of this Exhibit]
----------------------------------------------------------------------------
Language graphics/text modifications
----------------------------------------------------------------------------
Graphics development, miscellaneous
----------------------------------------------------------------------------
Programming, miscellaneous
----------------------------------------------------------------------------
Crossword, 20 puzzles
----------------------------------------------------------------------------
Trivia package, 500 questions
----------------------------------------------------------------------------
Fees for Support, Testing or Training of any games
----------------------------------------------------------------------------
Services Type Pricing
----------------------------------------------------------------------------
(Rockwell ▇▇▇▇▇▇▇) engineering support [Confidential
during integration testing
----------------------------------------------------------------------------
(Rockwell ▇▇▇▇▇▇▇) rack time Treatment has been
Rockwell ▇▇▇▇▇▇▇ Pomona, CA rack fee
----------------------------------------------------------------------------
Supplier On-site engineering requested for this
(plus expenses)
----------------------------------------------------------------------------
On-site Product Training portion of this Exhibit]
(plus expenses)
----------------------------------------------------------------------------
Integration testing at Rockwell ▇▇▇▇▇▇▇
Supplier will pass on to Qantas any Rockwell ▇▇▇▇▇▇▇ fees for integration
testing or engineering support during the testing. Rockwell ▇▇▇▇▇▇▇ fees for
"rack time" at its test facility in Pomona, California are $[Confidential
Treatment has been requested for this portion of this Exhibit] per day, and
$[Confidential Treatment has been requested for this portion of this Exhibit]
per hour for engineering support. The fees for the Supplier's engineering
support during integration testing at the Rockwell facility are $[Confidential
Treatment has been requested for this portion of this Exhibit] per day.
Payment
The Supplier will only commence any testing or personalising of the graphics on
the receipt of written instructions from an authorised representative of Qantas.
Once completed, The Supplier will invoice Qantas for all completed work and
Qantas will make payment to the Supplier upon final
--------------------------------------------------------------------------------
Page 34 Confidential
Acceptance of the delivered product.
--------------------------------------------------------------------------------
Schedule 10
ACCEPTANCE TESTING
--------------------------------------------------------------------------------
The Supplier will carry out all the necessary testing to ensure that the
Software works properly on the Rockwell ▇▇▇▇▇▇▇ TES IFE system that will be
installed on the Qantas aircraft. The Supplier will prepare an Acceptance Test
Strategy before commencing the testing. The Strategy will include a list of
Acceptance Criteria that will be provided to the Qantas Contract Manager upon
completion of the testing. A framework for both these documents is provided in
IFE-802--Games PMR-1.0.
--------------------------------------------------------------------------------
Schedule 11
DOCUMENTATION
--------------------------------------------------------------------------------
The Supplier will provide to Qantas documentation that the Supplier makes
generally available for the Software.
--------------------------------------------------------------------------------
Schedule 12
TRAINING
--------------------------------------------------------------------------------
The Supplier will provide to Qantas the published user manuals that the Supplier
makes generally available for the Software.
The Supplier will also provide on-site training for the fees specified in
schedule 9.
--------------------------------------------------------------------------------
Schedule 13
SUPPORT
--------------------------------------------------------------------------------
(a) Maintenance. During the warranty period specified in Section 7(a), Supplier
will provide to Qantas, at no additional charge, with the fixes and updates that
Supplier 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, Supplier will provide
Qantas, at no additional charge, with advice, consultation and assistance to use
the Product and diagnose and correct problems that Qantas may encounter (the
"Hot-Line Support"). The Supplier 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 Central Standard Time. Qantas will bear all telephone and other
expenses that it may incur in connection with the Hot-Line Support. Supplier
will provide on-site support to Qantas if required.
Hot-Line Contact Information:
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇
Address: SNAP2 Corp.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Page 35 Confidential
Phone: ▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇-▇▇▇.▇▇▇
The Supplier will provide support for any problems or bugs discovered in the
software provided to Qantas. When a problem is reported, Supplier will first
attempt to confirm the existence of the problem and if determined that the
problem is in Supplier supplied software, will provide a fix or work around in a
reasonable time period. The minimum response time from problem reporting is 2
hours during business hours Central Standard Time.
Fees for Support
Qantas may require the Supplier to provide software engineering support
personnel at either Rockwell ▇▇▇▇▇▇▇ or a Qantas location.
The Support fees for the Supplier's Personnel to provide engineering support at
the Rockwell ▇▇▇▇▇▇▇ location in Pomona, USA are $[Confidential Treatment has
been requested for this portion of this Exhibit] per hour. The Support fees for
the Supplier's Personnel to provide engineering support in a Qantas location are
$[Confidential Treatment has been requested for this portion of this Exhibit]
per day. Qantas will pay any other costs.
Payment for Support
Supplier will invoice Qantas for actual Support provided. Payment of any
invoices submitted will be processed as soon as the invoice is verified by the
Qantas Contract Manager.
--------------------------------------------------------------------------------
Schedule 14
INSURANCE
--------------------------------------------------------------------------------
The Supplier must take out and maintain these policies:
Commercial General Liability Protection
General total limit. $[Confidential Treatment
Products and completed work total limit. $ has been requested
Personal injury each person limit. $ for this portion of
Advertising injury each person limit. $ this Exhibit]
Each event limit. $
Workmans Compensation
Professional liability $
--------------------------------------------------------------------------------
Schedule 15
ADDRESS FOR NOTICES
--------------------------------------------------------------------------------
Qantas - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Purchasing Executive Inflight Services
Qantas Airways Ltd
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
(fax) ▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------------------------------------------------------------
Page 36 Confidential
Supplier- ▇▇▇▇ ▇▇▇▇▇▇▇
Vice-President of Sales
SNAP2 Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(fax) ▇ (▇▇▇)▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Schedule 16
CONDUCT POLICIES
--------------------------------------------------------------------------------
Qantas has Non smoking conduct policy
--------------------------------------------------------------------------------
Page 37 Confidential
EXECUTED as an Agreement:
--------------------------------------------------------------------------------
SIGNED for and on behalf of SIGNED for and on behalf of
QANTAS AIRWAYS LIMITED Snap2 Corporation by a duly authorised
by a duly authorised officer officer
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
Purchasing Manager Vice President of Sales
Date 23 April 2001 Date 5/1/01
------------- ------
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------- ---------------------
Signature of witness Signature of witness
Name and title (print) Name and title (print)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Purchasing Executive V.P. Marketing
Date 23 April 2001 Date 5/1/01
------------- ------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 38 Confidential