EXHIBIT 10(b)
1. The Parties
The parties to this Agreement are:
SICOM SOLUTIONS INC., a corporation having its principal place of
business at ▇▇▇▇▇ ▇▇▇ - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
which is referred to elsewhere in this Agreement as "The Licensor"; and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LTD., a corporation having its principal place of
business at ▇▇▇▇▇ ▇▇▇ - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
which is referred to elsewhere in this Agreement as "the Licensee".
2. Purpose of the Agreement
The purpose of this Agreement is for the Licensor to license the
Licensee to use, market and distribute the Computer Program and Related
Materials in return for which the Licensee will pay the Consideration to the
Licensor.
3. Definitions
The parties agree that, in this Agreement, the following terms have the
following meanings.
ACCEPTANCE This Agreement is effective and accepted when
the conditions of the "Acceptance" section
below are met.
ADDITIONAL TECHNICAL The services described in SCHEDULE 4.
SERVICES
AFFILIATE A company which has a majority of its voting
shares owned directly or indirectly by either
the Licensee or a company which directly or
indirectly owns a majority of the voting
shares of the Licensee.
COMPUTER PROGRAM The computer program[s] listed in the Product
Specification delivered to the Licensee and
each copy of, update of or enhancement to such
computer program.
CONFIDENTIAL INFORMATION The information specified in the Product
Specification and the information provided by
and designated as confidential in writing by
the Licensor to the Licensee. Confidential
Information does not include information which
is:
- publicly available or becomes so other than
by acts of the Licensee;
- received by the Licensee prior to it being
provided by the Licensor to the Licensee; or
- received by the Licensee from a third party.
DESIGNATED LOCATION Such address as may be designated by the
Licensee and agreed to in writing by the
Licensor.
PRODUCT SPECIFICATION The specification set out in SCHEDULE 1 to
this Agreement.
PERFORMANCE SPECIFICATION The specification set out in SCHEDULE 2 to
this Agreement.
RELATED MATERIALS The human-readable documentation which is to
be delivered with the Computer Program. The
Related Materials are specified in the Product
Specification.
SERVICE SPECIFICATION The specification set out in SCHEDULE 3 to
this agreement.
SUBJECT MATTER The intellectual property right[s] or the
subject of other rights licensed under this
Agreement namely:
- the copyright subsisting in a work entitled
relBuilder Enterprise Suite;
- the Confidential Information;
- all of the above as they are embodied in the
Computer Program and Related Materials
TERM The time period specified in the "Term"
paragraph below.
TERRITORY The geographic or economic market of the
License, namely: worldwide.
USE In respect of the Computer Program, use means
the execution of the Computer Program by a
computer's central processing unit(s) for
processing the instructions contained in the
Computer Program.
4. License Grant
(1) For the Consideration described below, the Licensor hereby grants a
License to
the Licensee under the Subject Matter to use, market and distribute the Computer
Program in the Territory for the Term of this Agreement, and to use, market and
distribute the Related Materials in association with such use, marketing and
distribution of the Computer Program, subject to the terms and conditions of
this Agreement.
(2) The License grant is exclusive.
(3) The Licensee may modify, or customize the Computer Program and
Related Materials. The Licensor is the owner of copyright in the modifications
or customizations. The Licensee shall provide copies of all modifications or
customizations to the Licensor.
(4) The License does not grant any ownership or security interest or
title in any intellectual property right relating to the Computer Program.
(5) The Licensee has the right to sub-license as specified in this
paragraph.
(a) The Licensee may sub-license any party;
(b) Sub-Licensees may only license use of the Computer Program and
Related Materials, under the terms of Licensor's "End-User Licensing
Agreement", to be provided to Sub-Licensee by Licensor within thirty
(30) days upon request by Sub-Licensee.
(6) The License is transferable only under the conditions specified in the
"Assignability" section below.
5. Consideration
(1) The Licensee shall pay to the Licensor the Consideration of:
(a) a lump-sum License fee of $50,000.00 (CAD) payable within sixty
(60) days from the effective date of this Agreement. This payment shall
be non-refundable after Acceptance has occurred; and
(b) a Royalty as defined below;
(2) If the Consideration is not paid when due and upon demand by the
Licensor, the Licensee shall pay to the Licensor interest at the rate of the
Bank of Canada prime, payable monthly. Interest on overdue interest is also
payable at the same rate until the amount due is paid.
(3) The Royalty shall be in the following amounts for the following
periods,
calculated on the basis of 15% of net sales.
(4) The Licensee shall pay a royalty of at least $50,000.00 (CAD) by the
end of the first year of this Agreement; an additional $200,000.00 (CAD) by the
end of the second year of this Agreement; and an additional $300,000.00 (CAD) by
the end of the third year of this Agreement.
6. Obligations of the Licensor
The Licensor shall provide to the Licensee, within ninety (90) days of
the effective date of this Agreement taking effect:
(a) any reasonable number of copies of the Computer Program and Related
Materials as described in the Product Specification requested by the
Licensee; and
(b) training and technical assistance as described in the Service
Specification;
7. Obligations of the Licensee
(1) The Licensee shall not make any copies of the Computer Program or
Related Materials nor permit anyone else to use, have access to, or copy the
Computer Program or Related Materials other than those that are specifically
authorized to be made under this Agreement.
(2) Upon termination of this License, the Licensee shall return to the
Licensor or destroy under oath all copies of the Computer Program and Related
Materials. The Licensee shall erase all Computer Programs from any storage media
before disposal of such media. Within one month of the date of the termination
of this License, the Licensee shall notify the Licensor in writing of the
Licensee's compliance with the requirements of this section.
8. Acceptance
(1) Acceptance and effectiveness of this Agreement will have occurred upon
execution of this Agreement by authorized officers of the parties.
9. Defects
(1) Obligations of the Licensee
If the Computer Program fails to perform in accordance with the
Performance Specification, the Licensee shall promptly advise the Licensor of
the defect and shall assist the Licensor in identifying and fixing the defect.
(2) Obligations of the Licensor
If the Computer Program fails to perform in accordance with the
Performance Specification, and the Licensee promptly advises the Licensor of the
defect, then the Licensor shall, within 90 days of the communication of the
existence of the defect:
(a) correct the defect, or;
(b) identify the defect and provide a schedule to the Licensee for
correcting the defect.
10. Upgrades/Interim Maintenance Releases
The Licensor shall deliver to the Licensee:
(a) upgrade versions or new versions of the Computer Program and
Related Materials; and
(b) interim maintenance releases of the Computer Program and Related
Materials.
11. Term
(1) The term of the License is three (3) years beginning on the date this
Agreement takes effect.
(2) This License terminates thirty (30) days after the non-breaching party
gives notice to the breaching party of a material breach of a provision of this
Agreement, unless the breaching party has remedied the breach within that time.
(3) This License terminates automatically upon the occurrence of any of
the following events:
(a) The insolvency of the Licensee;
(b) The Licensee executes an assignment for the benefit of creditors;
(c) The Licensee ceases to carry on business;
(d) The Licensee becomes subject to receivership or bankruptcy
proceedings;
(4) The parties acknowledge that the Licensee has the right to retain,
access, copy and modify all data files containing Licensee's data used or
generated by the Computer Program.
12. Warranties
(1) The Licensor and Licensee warrant to each other as follows:
(a) Each corporate party is duly incorporated and subsisting under the
laws of its place of incorporation or subsistence.
(b) Each party has the power to and is authorized to enter into this
Agreement.
(c) The carrying out of this Agreement will not breach or interfere
with any other agreement to which the respective party has entered
into.
(d) Neither party will enter into another agreement the carrying out of
which would interfere with the carrying out of this Agreement;
(2) The Licensor warrants as follows:
(a) The Licensor has the right to license the Subject Matter free of any
liens or encumbrances. Any portions of the Computer Program and Related
Materials, the intellectual property of which are owned by Licensor or
are owned by someone other than the Licensor, and have been licensed to
the Licensor for sub-licensing to the Licensee and others. Such License
does not restrict the ability of the Licensor to grant the Licenses set
out in this Agreement.
(b) The Licensor owns the right, title and interest in the physical
media provided to the Licensee under this Agreement.
(c) The Computer Program is of marketable quality.
(d) To the best of the Licensor's knowledge, the use of the Computer
Program does not infringe the intellectual property rights of others nor
is the Licensor aware of any allegations made that the use of the
Computer Program infringes the intellectual property rights of others.
(e) The Computer Program does not contain any programs which are
intended to permit unauthorized access, or cause damage to other
programs, data or hardware.
(3) The Licensee warrants that it shall keep the License of this Agreement
free of liens, claims and encumbrances.
(4) The above warranties are instead of any and all other warranties,
representations or conditions express or implied, oral or written with respect
to the Computer Program and Related Materials, including any implied warranties
or conditions of title, non-infringement, merchantability or fitness or
suitability for a particular purpose. The Licensor disclaims and the Licensee
waives all other such warranties, representations and conditions. Certain
jurisdictions do not permit such exclusion of warranties, so this disclaimer may
not apply to the Licensee.
13. Indemnification
(1) The Licensor shall indemnify the Licensee gainst all claims including
liabilities and legal costs and disbursements made against the Licensee alleging
that any use of the Computer Program or Related Materials constitutes
infringement of any copyright, patent, trade-▇▇▇▇, or trade secret rights.
(2) The Licensor shall have carriage of the defense of such claim made
against the Licensee and has the exclusive right to settle the claim so long as
the settlement does not interfere with the business arrangements of the
Licensee. The Licensee shall cooperate fully in the conduct of the defense. The
Licensee shall either retain the legal counsel designated by the Licensor or may
retain its own counsel at its own expense.
(3) The Licensee shall notify the Licensor as soon as possible upon any
claim being made against the Licensee that its use of the Computer Program is
alleged to be an infringement of the intellectual property rights of others.
(4) In the event that the Computer Program is finally held by a court of
competent jurisdiction, to be an infringement of the intellectual property
rights of another, then the Licensor shall:
(a) modify the Computer Program to make it non-infringing; or
(b) obtain a License for use of the Computer Program from the other
party; or
(c) terminate the License and refund any payments the Licensee has made.
14. Relief
(1) Injunctive Relief
Any unauthorized use of any intellectual property rights of the
Licensor made or caused by the Licensee will result in irreparable harm to the
Licensor which cannot be adequately compensated for by damages. The Licensor is
entitled to a court-ordered injunction in the event such use is made or caused
by the Licensee.
(2) Limitation of Damages
The Licensor shall not be liable to the Licensee for incidental,
special or consequential damages caused by the breach of any term or warranty of
this Agreement, including lost profits, lost data, loss of computer time or any
commercial or economic loss. The liability of the Licensor shall, in any event,
be limited to the total monies paid by the Licensee to the Licensor as the
Consideration for this Agreement. Certain jurisdictions do not permit such
exclusion of liability for consequential damages, so this disclaimer may not
apply to the Licensee.
15. Dispute Resolution
(1) Governing Law
This Agreement shall be interpreted under the laws of Alberta, Canada.
(2) Arbitration
Disputes, other than those for immediate cessation of conduct by a
party to this Agreement, shall be resolved under arbitration in accordance with
the Licensing Agreement Arbitration Rules of the American Arbitration
Association.
The Arbitration shall take place at a location agreed to by the parties
in the English language.
The costs of the arbitration shall be paid equally by the parties.
The decision of the arbitrator shall be binding on the parties and may
be entered in any Court having jurisdiction to do so.
16. Confidentiality
(1) The Licensee acknowledges that the Confidential Information is a trade
secret and is owned by the Licensor.
(2) The Licensee will take all reasonable precautions to maintain the
confidentiality
of the Confidential Information and to prevent the unauthorized disclosure to
others of the Confidential Information. The Licensee shall not be liable for
damages caused to the Licensor by inadvertent breaches of confidentiality.
(3) The Licensee shall only disclose the Confidential Information to those
of its employees who have a need to know and require access to the Confidential
Information to exploit the License. The Licensee shall require each employee who
receives the Confidential Information to agree in writing, prior to such
disclosure, to maintain the information as confidential.
17. Non-competition
The Licensee may develop computer software similar in function to the
Licensor's Computer Program. Those employees of the Licensee who develop such
computer software shall not have had access to the Licensor's Confidential
Information for a two-year period prior to commencing such development.
18. Reverse Engineering
The Licensee shall not reverse engineer, decompile or disassemble the
object code version of the Computer Program without the prior written approval
of the Licensor.
19. Assignability
(1) This License is assignable by the Licensee to another person or legal
entity only with the express prior written permission of the Licensor.
(2) This Agreement is binding on the parties to this Agreement, their
successors and assigns.
20. General Provisions
(1) This Agreement constitutes the entire agreement between the parties
concerning the Computer Program. The parties are not relying upon any earlier
representation which is not included in this Agreement.
(2) This Agreement cannot be amended or modified other than by a change
made in writing and executed by the parties.
(3) Covenants concerning intellectual property are to be construed as being
independent of other provisions in this Agreement.
(4) In the event that any portion of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, then the remaining
portions of the Agreement shall survive unaffected.
(5) Notice may be sent, by any means whatsoever, to the address specified
at the beginning of this Agreement or at such other address for notice which may
be given by notification of the other party in writing. Notice is effective on
the date that the notice is received. Notice by courier or registered mail is
deemed to be given on the date recorded as delivered. Notice by telecopy or
Telex is deemed to be made on the date and at the time it is sent and
acknowledged as being received.
(6) The waiver by any party of a breach of this Agreement does not
constitute a waiver of other breaches or rights under this Agreement.
(7) Delays or non-performance of any obligations under this Agreement
caused by events beyond the control of the party having the obligation, shall
not be a breach of this Agreement. The time for carrying out the obligation
shall extend for a period equal to the time over which the conditions existed.
(8) The headings in this Agreement are for reference purposes only and
cannot be used to construe the terms of the Agreement.
(9) This Agreement does not establish a joint venture or partnership
between the Licensor and Licensee.
(10) This Agreement shall be recorded in any and all offices where such
recordal is necessary under the laws of the respective country.
EXECUTED AT Calgary, Alberta, Canada, this 1 day of June, 1999.
Licensor
"▇▇▇▇ ▇▇▇▇▇"
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By: ▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
Licensee
"▇▇▇▇ ▇▇▇▇▇"
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By: ▇▇▇▇ ▇▇▇▇▇
Title: President
SCHEDULE 1
Product Specification
(1) The Computer Program to be delivered under this Agreement is a set
of instructions or statements expressed, fixed, embodied or stored in any
manner, that is to be used directly or indirectly in a computer in order to
bring about a specific result and has the following characteristics:
(a) Brand Name: relBuilder Enterprise Suite
(2) The Computer Program shall be in executable form.
(3) The Related Materials shall include:
(a) operation and user manuals
(b) instructions
(4) The Computer Program shall be in the form of:
(a) source code in a form which may be compiled or assembled to
executable code.
Confidential Information
(1) The following items are confidential and proprietary to the Licensor:
(a) the source code version of the Computer Program;
(b) the Computer Program system specification;
(c) the methods and concepts embodied in the Computer Program;
(d) the structure, sequence and organization of the Computer Program.
(2) All written forms of the Confidential Information shall bear a
conspicuous notice identifying the subject matter as being Confidential
Information. The Licensee shall not remove such notice.
SCHEDULE 2
Performance Specification
(1) "as-documented"
(a) The Licensor warrants that the Computer Program will perform in
accordance with its description in its documentation on the computer
hardware and operating system specified in its documentation.
(b) The Licensor does not warrant that the Computer Program will operate
with any other Computer Program not so specified in the documentation.
(c) The only remedy of the Licensee under this warranty is the Licensee
may terminate the License. If the Licensee terminates the License under
this warranty, the Licensor shall pay to the Licensee 90% of the License
fee paid by the Licensee.
SCHEDULE 3
Service Specification
(1) Training
The Licensor shall train a reasonable number of employees of the
Licensee in the use and operation of the Computer Program.
(2) Technical Assistance
The Licensor shall provide the following technical assistance:
(a) Installation support; and
(b) Troubleshooting support.
(3) Maintenance
The Licensor shall maintain the Computer Program and Related Materials
in an operable form as described in the Product Specification and Performance
Specification.
SCHEDULE 4
Additional Technical Services
The Licensor shall provide the following technical services:
(a) Integration training for Licensee developers;
(b) Support for Licensee developers; and
(c) Architectural training for Licensee developers.