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EXHIBIT 10.12
DISTRIBUTOR AGREEMENT
BETWEEN
TEMPLATE SOFTWARE, INC.
AND
▇▇▇▇▇▇▇ INGENIERIE
FOR
SNAP DEVELOPMENT AND RUN-TIME SOFTWARE
JANUARY 20, 1993
PROPRIETARY INFORMATION
NOT FOR USE OR DISCLOSURE OUTSIDE
TEMPLATE SOFTWARE, INC. AND ▇▇▇▇▇▇▇ INGENIERIE
EXCEPT UNDER WRITTEN AGREEMENT
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DISTRIBUTOR AGREEMENT
TABLE OF CONTENTS
Article I Agreement
Article II Definitions
Article III Grant of License
Article IV DISTRIBUTOR Representations and Obligations
Article V Support
Article VI Reporting and Payment
Article VII Warranties, Limitations of Liabilities and Remedies
Article VIII Intellectual Property
Article IX Indemnities
Article X Confidentiality
Article XI Term and Termination
Article XII Independent Relationship
Article XIII Notices
Article XIV Miscellaneous
ADDENDA
Addendum A Identification and Description of the "Licensed Product(s)"
Addendum B Development License Platform and Price
Addendum C "End User" License Terms
Addendum D Territory Assignment
Addendum E TEMPLATE SOFTWARE Standard License Agreement
Addendum F List of Platforms on Which "Licensed Product(s)" Is Supported
Addendum G Training Requirements
Addendum H Maintenance Terms
Addendum I DISTRIBUTOR "Internal Use" Price List
Addendum J DISTRIBUTOR Royalty Schedule
Addendum K "Licensed Product(s)" Standard Price List
Addendum L Sales Quota
Addendum M Format of Sales Report
Addendum N Format of Sales Forecast Report
Addendum O Royalty Credits for Sales made by Others in the Territory
Addendum P DISTRIBUTOR Training Certification Requirements
EXHIBIT A Business Plan
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DISTRIBUTOR AGREEMENT
This agreement is made between TEMPLATE SOFTWARE, INC. (TEMPLATE SOFTWARE), a
Maryland corporation with its principal offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇ and ▇▇▇▇▇▇▇ Ingenierie (DISTRIBUTOR), a
French corporation with its principal offices at 13, ▇▇▇ ▇▇▇▇▇▇ Micholet 94270
Le KREMLIN BICETRE.
ARTICLE I - AGREEMENT
TEMPLATE SOFTWARE owns a proprietary software product and related Documentation
(collectively "Licensed Product(s)") that is described in Addendum A. TEMPLATE
SOFTWARE hereby agrees to grant DISTRIBUTOR a license to use the Licensed
Product(s) and sublicense the Licensed Product(s) to End Users and DISTRIBUTOR
hereby agrees to accept the license from TEMPLATE SOFTWARE on the terms set
forth in this Agreement and Addenda referenced herein.
ARTICLE II - DEFINITIONS
A. "Confidential Information" shall mean all the Licensed Product(s)
Source code and Object Code, Licensed Product(s) architecture, Licensed
Product(s) plans and futures, this Agreement and any and all
information contained therein, and any information clearly marked by
TEMPLATE SOFTWARE as "Confidential Information", except any part which:
1. Is or becomes publicly available through no act or failure on the
part of DISTRIBUTOR, DISTRIBUTOR's customer, or End User; or
2. Was or is rightfully learned or obtained by DISTRIBUTOR,
DISTRIBUTOR's customer, or End User from a source other than
TEMPLATE SOFTWARE; or
3. Becomes independently available to DISTRIBUTOR, DISTRIBUTOR's
customer or End User as a matter of right from a third party; or
4. Is expressly authorized by any subsequent agreement between the
parties.
B. "Development Versions" shall mean the Object Code comprising the
development environment provided by the Licensed Product(s) to aid in
the development of an application.
C. "Documentation" shall mean the user manuals provided to End-User for
use with the Licensed Product(s), as revised from time to time.
D. "End User" shall mean a customer within the Territory to whom
DISTRIBUTOR grants a sublicense to use the Licensed Product(s).
E. "End User Maintenance" shall mean the maintenance of the Licensed
Products as provided by DISTRIBUTOR to the End User pursuant to a
maintenance agreement between the End User and DISTRIBUTOR.
F. "Event of Default" shall mean failure by DISTRIBUTOR to meet its
obligations under this Agreement including (without limitation) failure
to collect an amount of money in License Fees and Maintenance Fees
equal to the Sales Quota and failure to pay Product Royalties to
TEMPLATE SOFTWARE.
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G. "Internal Use" shall mean development, implementation and processing of
licensee data and applications.
H. "License Fee" shall mean an amount of money equal to the license fee
paid by an End User to use the Licensed Product(s) pursuant to an End
User licensing agreement for the Licensed Product(s) between
DISTRIBUTOR and such End User.
I. "Licensed Product(s)" shall mean TEMPLATE SOFTWARE's proprietary
Run-Time Versions and Development Versions and their related
Documentation, as described in Addendum A, in Object Code format.
J. "Maintenance Fee" shall mean an amount of money equal to the
maintenance fee paid to DISTRIBUTOR by an End User pursuant to an End
User maintenance agreement between DISTRIBUTOR and such End User.
K. "Object Code" shall mean machine executable computer programs, or
computer programs in the form used to build machine-executable computer
programs, which result from the compilation and/or assembly of Source
Code.
L. "Product Royalty" shall mean an amount of money equal to the greater
of: one half of the Sales Quota for the calendar year or one half of
the aggregate License Fees and Maintenance Fees collected by
DISTRIBUTOR from End Users during the calendar year.
M. "Run-Time Version" shall mean the Object Code libraries provided as
part of the Licensed Product(s).
N. "Sales Quota" shall mean the minimum License Fees and Maintenance Fees
to be collected by DISTRIBUTOR as set forth in Addendum L.
O. "Source Code" shall mean a computer program in the form of a symbolic
programming language, which when compiled and/or assembled is
transformed into Object Code.
P. "Territory" shall mean the country or countries, or other definable
group that is defined in Addendum D.
Q. "Updates" shall mean any revisions or enhancements to the Licensed
Product(s), or any part thereof, that are not included in the Licensed
Product(s) at the time of execution of this Agreement, that improve the
Licensed Product(s) and are related to, and not separately priced from,
the Licensed Product(s).
ARTICLE III - GRANT OF LICENSE
A. License to Development Version - TEMPLATE SOFTWARE hereby grants the
DISTRIBUTOR, a non-exclusive, non-transferable license to use the
Licensed Product(s), on the terms and conditions set forth in this
Agreement, in the quantities, on the platforms and at the price set
forth in Addendum B, for the Term of this Agreement, to (i) develop and
support applications for demonstration purposes only, (ii) market and
promote the Licensed Product(s) to DISTRIBUTOR's customers in the
Territory, and (iii) support and provide End User Maintenance for End
Users, and conduct End User training provided DISTRIBUTOR has become
certified to conduct End User training in accordance with Addendum P.
B. TEMPLATE SOFTWARE hereby grants DISTRIBUTOR an exclusive,
non-transferable right to sublicense Licensed Products to End Users in
the Territory provided the End User executes a sublicense agreement
("Sublicense Agreement"), for the Licensed Product set forth in
Addendum C. Sublicense Agreements shall be in French and shall be
between DISTRIBUTOR
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and the End User. DISTRIBUTOR warrants that the Sublicense Agreement
shall contain the same semantic content as TEMPLATE SOFTWARE's Standard
License Agreement as contained in Addendum E including, but not limited
to, the Sections 4 - Assignment of Use, 3.e - Use, 7 - Warranty of
Performance, 9 - Trade Secret, Security and Confidentiality, and 11 -
Liability. DISTRIBUTOR further warrants that the Sublicense Agreement
shall contain an assignment clause that will effectuate the assignment
of the Sublicense Agreement to TEMPLATE SOFTWARE in the event of
Termination as required in Article XI(E)(3) and a clause prohibiting
any export of the Licensed Product(s) from France without DISTRIBUTOR's
advanced written permission. All applications developed by End Users
with the Development Version of the Licensed Product(s)
("Applications") must include a Run-time Version of the Licensed
Product(s). The End User who develops an Application can use such
Application at the sites and locations identified in the Sublicense
Agreement. DISTRIBUTOR shall have the right to license Run-time
Versions of the Licensed Product(s) for Applications for use outside
the Territory. In no case is the DISTRIBUTOR granted the right to
license Development Versions of the Licensed Product(s) for use outside
the Territory unless the Development Versions are priced at the
prevailing price of the country in which the Development Version of the
Licensed Product(s) will be used and the distributor of record for that
country is credited with such sale.
C. TEMPLATE SOFTWARE reserves the right to market and license Licensed
Products, either directly or through third parties, for use in the
Territory provided the End User in the Territory is (i) an affiliate
of a multinational corporation, (ii) a representative of a non-French
governmental body, (iii) a customer of a third party vendor who has
acquired the right to market the Licensed Product(s) pursuant to OEM
agreements or VAR agreements between such third party vendor and
TEMPLATE SOFTWARE or (iv) customers of UNISYS, Axil or, NCR, and
further provided that the royalties received by TEMPLATE SOFTWARE from
such transactions shall be treated as specified in Addendum O. TEMPLATE
SOFTWARE shall not be obligated hereunder to pay DISTRIBUTOR any moneys
for the royalties paid to TEMPLATE SOFTWARE by third parties (including
their affiliates and subsidiaries) defined in (iii) and (iv) of this
Article III, Section C. TEMPLATE SOFTWARE shall reserve the right to
enter into such agreements at its sole discretion.
D. TEMPLATE SOFTWARE hereby grants DISTRIBUTOR an exclusive,
non-transferable right to enter into Value Added Reseller (VAR)
contracts between DISTRIBUTOR and licensees provided DISTRIBUTOR
acquires the advanced approval from TEMPLATE SOFTWARE of the form and
substance of each VAR agreement.
E. License(s) for Internal Use - TEMPLATE SOFTWARE shall grant
DISTRIBUTOR, at the DISTRIBUTOR's request, licenses for additional
Run-Time and Development copies of the Licensed Product(s), for its
Internal Use, over and above the copies granted in Section A. of this
Article III, provided DISTRIBUTOR is not in default of any provision of
this Agreement. With respect to any such licenses, TEMPLATE SOFTWARE
shall grant, and DISTRIBUTOR shall accept, a license(s) to such
Run-Time and Development copies of the Licensed Product(s) in
accordance with TEMPLATE SOFTWARE's Standard License Agreements in
Addendum E. DISTRIBUTOR shall pay the then current rate for maintenance
of Internal Use copies purchased pursuant to this Article III.E.
ARTICLE IV - DISTRIBUTOR REPRESENTATIONS AND OBLIGATIONS
A. DISTRIBUTOR hereby represents that it will (i) market and license the
Licensed Product(s) and related services on a best efforts basis,
including training, installation assistance, End User Maintenance and
other forms of computer support, to potential customers in the
Territory. The License Fees and Maintenance Fees (increased by the
amount paid to DISTRIBUTOR by TEMPLATE SOFTWARE under the terms of
Article III.C) collected by DISTRIBUTOR in each calendar year shall
equal or exceed the Sales Quota for such calendar year. If the License
Fees and Maintenance Fees (increased by the amount paid to DISTRIBUTOR
by TEMPLATE
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SOFTWARE under the terms of Article III.C) collected by DISTRIBUTOR
during any calendar year do not equal or exceed the Sales Quota,
TEMPLATE SOFTWARE shall have the right to terminate this Agreement for
default as described in Article XI.B.
B. Execution of Sublicense Agreements - DISTRIBUTOR shall obtain duly
executed Sublicense Agreements for Licensed Products as set forth in
Addendum C, prior to delivery of Licensed Products to its customers.
DISTRIBUTOR shall retain such Sublicense Agreements on file for the
Term of this Agreement and provide TEMPLATE SOFTWARE a copy of each
Sublicense Agreement for the Licensed Products licensed in order that
TEMPLATE SOFTWARE can ship the Licensed Product(s) in accordance with
Article V.A.
C. TEMPLATE SOFTWARE shall provide DISTRIBUTOR with an International Price
List in US dollars, which shall be that no greater than 125% of the US
Price List, within ten (10) days from the date of the execution of this
Agreement. TEMPLATE SOFTWARE shall convert such International Price
List to French Francs ("France Price List") twenty (20) days thereafter
at the conversion rate listed in Wall Street Journal at the date of the
execution of this Agreement (with a reasonable rounding factor). Such
International Price List and converted France Price List shall be
attached to this Agreement as Addendum K. TEMPLATE SOFTWARE shall
review the exchange rate every ninety days and reserves the right to
adjust the France Price List if the currency exchange rate from US
dollars to French Francs varies by five percent (5%) from the last
conversion rate used provided such adjustments shall not exceed a 25%
cumulative increase over any twelve month period. DISTRIBUTOR shall not
vary the prices for the Licensed Product(s) from those set forth in the
France Price List by 20% without specific written agreement from
TEMPLATE SOFTWARE. TEMPLATE SOFTWARE shall use its best efforts to
respond to all of DISTRIBUTOR's special pricing requests within two (2)
business days from written receipt of the same.
D. Reverse Compiling and Modifying the Licensed Product(s) - Except as
provided in European Community Directive on Protection of Proprietary
Rights in Computer Programs, DISTRIBUTOR shall not modify, reverse
compile or otherwise reverse engineer the Licensed Product(s) or any
part thereof.
E. DISTRIBUTOR agrees to assign, at a minimum, one designated sales
representative and two technical representatives for the Territory for
the Term of this Agreement. DISTRIBUTOR further agrees to add sales and
technical representatives that support the business growth as reflected
in the increase in Sales Quota.
F. DISTRIBUTOR shall prepare and submit a Sales Report (Addendum M) and a
Sales Forecast Report (Addendum N) within thirty (30) days from the
calendar quarter end for all orders executed in the quarter and
forecasted for the next quarters.
G. Copies of the Licensed Product(s) - DISTRIBUTOR shall not make copies
of the Licensed Product(s) except to provide a backup or archive copy.
All reproductions shall contain any proprietary or copyright notices
appearing in the Licensed Product(s). DISTRIBUTOR shall be limited to
making no more than two (2) backup copies of the Licensed Product(s).
H. Export of Licensed Products - Unless provided otherwise herein,
DISTRIBUTOR shall not have the right to export any Licensed Products
outside the Territory.
I. Trained Personnel - DISTRIBUTOR shall have its personnel trained
according to Addendum G and shall be responsible for the product
training of the customers.
J. DISTRIBUTOR shall be solely responsible for the promotion, marketing,
installation, training, End User Maintenance and technical support of
Licensed Products sublicensed to End Users.
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K. DISTRIBUTOR shall translate all marketing materials, Documentation and
this Agreement into languages other than English as may be required to
promote and implement the Licensed Product(s) in the Territory.
DISTRIBUTOR shall pay all costs incidental to such translations. Such
translations shall be the sole and exclusive property of TEMPLATE
SOFTWARE and TEMPLATE SOFTWARE shall own any and all copyrights, trade
secrets, trademarks, or service marks therein ("Intellectual Property
Rights"). DISTRIBUTOR shall cooperate with TEMPLATE SOFTWARE in helping
to secure such Intellectual Property Rights. DISTRIBUTOR shall have the
right to use such translations only for purposes of promoting and
implementing the Licensed Product(s) to customers in the Territory as
provided under this Agreement. DISTRIBUTOR shall provide TEMPLATE
SOFTWARE with copies of such translations. In the event of conflict
between any such translation and the corresponding English version, the
meaning of the English version shall prevail. DISTRIBUTOR shall
indemnify, release and hold harmless TEMPLATE SOFTWARE against any and
all claims resulting from or arising out of errors, misstatements,
misrepresentations or false claims in any such translations.
L. DISTRIBUTOR shall not make any express or implied representation to its
customers that the Licensed Product(s) functions, performs or is usable
on any equipment other than the equipment listed on Addendum F.
M. DISTRIBUTOR shall conduct End User training only with training
instructors who are Certified by TEMPLATE SOFTWARE in accordance with
Addendum P and only with TEMPLATE SOFTWARE's training materials (or
TEMPLATE SOFTWARE's approved translated training materials).
ARTICLE V - SUPPORT
A. TEMPLATE SOFTWARE shall ship to the DISTRIBUTOR the English version of
the Licensed Products and related Documentation within five (5)
business days after receiving copy of an executed Sublicense Agreement
between the DISTRIBUTOR and an End User or for Internal Use copies, an
executed license agreement between TEMPLATE SOFTWARE and DISTRIBUTOR.
B. Training - TEMPLATE SOFTWARE will provide training for DISTRIBUTOR's
personnel in accordance with Addendum G. Such training will take place
at TEMPLATE SOFTWARE's offices. TEMPLATE SOFTWARE shall provide
DISTRIBUTOR five (5) copies of training materials for the Licensed
Product(s) for End User Training conducted by the DISTRIBUTOR.
Additional copies can be provided to the DISTRIBUTOR at TEMPLATE
SOFTWARE's cost of producing and shipping the same.
C. Technical Assistance - TEMPLATE SOFTWARE shall provide DISTRIBUTOR with
technical assistance with regard to the Licensed Product(s) by
telephone during normal business hours.
D. Maintenance of Licensed Product(s) - TEMPLATE SOFTWARE will provide
DISTRIBUTOR maintenance of the Licensed Product(s) licensed pursuant to
Article III.A. for the Term of this Agreement in accordance with the
terms in Addendum H.
E. Updates to Licensed Product(s) - TEMPLATE SOFTWARE will provide
DISTRIBUTOR Updates during the Term of this Agreement to the Licensed
Product(s) as such Updates are officially released. TEMPLATE SOFTWARE
shall support the last version of the Licensed Product(s) for a period
of three (3) months after the official release of such Updates.
Thereafter, TEMPLATE SOFTWARE shall only provide support for the
current version of the Licensed Product(s). TEMPLATE SOFTWARE shall
ship to the DISTRIBUTOR one copy of Updates for each End User who is
under a current maintenance agreement with DISTRIBUTOR.
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F. TEMPLATE SOFTWARE SHALL NOT HAVE ANY RESPONSIBILITY TO PROVIDE
TECHNICAL ASSISTANCE, INSTALLATION, END USER MAINTENANCE OR SUPPORT
SERVICES DIRECTLY TO ANY END USER OF A LICENSED PRODUCT(S).
G. Development Plans and Suggestions - TEMPLATE SOFTWARE will inform
DISTRIBUTOR generally about all development plans for the Licensed
Product(s). DISTRIBUTOR is encouraged to make written suggestions for
future changes or enhancements to the Licensed Product(s). TEMPLATE
SOFTWARE will evaluate all such suggestions, but does not guarantee
that any of the suggestions will be implemented in future Updates.
H. Marketing Materials - TEMPLATE SOFTWARE shall provide DISTRIBUTOR with
initial copies of marketing materials as may be from time to time
specified in the then current Business Plan by mutual agreement of
TEMPLATE SOFTWARE and DISTRIBUTOR. DISTRIBUTOR shall be responsible for
paying for any marketing materials provided by TEMPLATE SOFTWARE. All
marketing materials prepared and translated into local languages by
DISTRIBUTOR shall be reviewed and approved by TEMPLATE SOFTWARE before
their release. DISTRIBUTOR shall be responsible for the entire cost
related to the language translation of marketing materials.
ARTICLE VI - REPORTING AND PAYMENT
A. Sales Report and Sales Forecast Report - DISTRIBUTOR shall submit a
Sales Report and a Sales Forecast Report.
1. Within 30 days after the end of each calendar quarter,
DISTRIBUTOR shall submit the Sales Report. Such Sales Report
shall contain, at a minimum, the following information for the
immediately preceding quarter:
For new licenses:
a. Name and address and authorized contact of End User;
b. Licensed Product identification;
c. Platform type;
d. Date of license;
e. Number of Run-Time Versions and Development Versions
sublicensed;
f. License Fees;
g. Applicable discounts from French Price List for the order;
h. Initial Maintenance Fees combined with the initial order
including maintenance period; and
i. Shipping and Handling payable to TEMPLATE SOFTWARE pursuant
to Article VI(E).
For End User Maintenance:
a. End User Maintenance Fees including maintenance period; and
b. End Users that Declined End User Maintenance
The Sales Report shall also include a list of any Run-Time and
Development copies of the Licensed Product(s), and applicable
maintenance, licensed for the Internal Use of DISTRIBUTOR in the
quarter pursuant to Article III, Section E and the applicable
license fees plus Shipping and Handling payable to TEMPLATE
SOFTWARE.
2. Within the first five (5) days of every quarter, DISTRIBUTOR
shall send a Sales Forecast Report by means of facsimile
transmission. Such report shall include a projection of potential
revenue for the quarter. Information such as the names and
locations of
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prospects, potential order type, percentage of confidence of
order achievement, hardware platform, and order revenue value of
the potential order is required.
B. DISTRIBUTOR shall send a Money Collection Report by means of facsimile
transmission to TEMPLATE SOFTWARE within the first five (5) days of
every month. Such report shall include information about money
collected in the prior month related to the Licensed Product(s) sales
and applicable maintenance. TEMPLATE SOFTWARE shall send to DISTRIBUTOR
a corresponding invoice based on such Money Collection Report. TEMPLATE
SOFTWARE reserves the right to include as amounts due on such invoice,
that amount which represents one half of the License Fee calculated
using the France Price List for any License Product shipped pursuant to
Article V, Section A that has not been reported on the Money Collection
Report within ninety (90) days of such shipment unless DISTRIBUTOR
terminates the Sublicense Agreement relating to such unpaid License
Fee, has the Licensed Product(s) returned and notifies TEMPLATE
SOFTWARE of the same in writing.
C. Payment for the license fees and applicable maintenance fees for
Licensed Product(s) licensed for DISTRIBUTOR's Internal Use -
DISTRIBUTOR shall pay for any additional Run-Time and Development
copies, and applicable maintenance of the Licensed Product(s) licensed
for DISTRIBUTOR's Internal Use, pursuant to Article III, Section E, in
accordance with DISTRIBUTOR Internal Use Price List in Addendum I,
within thirty (30) days from the end of the calendar quarter in which
they were licensed.
D. Product Royalties - DISTRIBUTOR shall pay TEMPLATE SOFTWARE Product
Royalties.
E. Shipping and Handling - DISTRIBUTOR shall pay TEMPLATE SOFTWARE for
Shipping and Handling in connection with the shipping of DISTRIBUTOR
requested Licensed Products and Documentation to DISTRIBUTOR or
End-Users in accordance with the then current Price List.
F. Payment of one half of License Fees and one half of Maintenance Fees is
due and payable within five (5) days from the date of TEMPLATE
SOFTWARE's invoice. Shipping and Handling is payable within thirty (30)
days from the end of each quarter.
G. Price Changes - TEMPLATE SOFTWARE reserves the right to vary its
International Price List, Addendum K, for the Licensed Product(s) every
twelve (12) months upon ninety (90) days written notice. TEMPLATE
SOFTWARE shall convert such price changes to French Francs in
accordance to the procedure in Article IV, Section C, within ninety
(90) days of such written notice. Such converted International Price
List shall be the new France Prices List on the ninetieth day after the
written notice of the price change.
H. DISTRIBUTOR shall pay a license fee for each Run-Time Version of the
Licensed Product(s) embedded in "▇▇▇▇▇▇▇ Patrimoine" and/or "▇▇▇▇▇▇▇
Securite" pursuant to Article VIII, Section C. Such license fee for
each Run-Time Version so embedded shall be equal to the greater of,
fifteen percent (15%) of the list price of "▇▇▇▇▇▇▇ Patrimoine" and/or
"▇▇▇▇▇▇▇ Securite", or $1,000. All such license fees shall be reported
on the Sales Report, invoiced by TEMPLATE SOFTWARE in accordance with
Section B of this Article and payable to TEMPLATE SOFTWARE in
accordance to Section C of this Article.
I. Currency - All payments by DISTRIBUTOR to TEMPLATE SOFTWARE shall be
made payable in French Francs by wire transfer to TEMPLATE SOFTWARE's
designated bank as indicated below. TEMPLATE SOFTWARE may change the
designated bank and related information by providing DISTRIBUTOR a
minimum of three days advanced written notice prior to any change.
Societe Generale, Paris
for credit to Signet Bank
Account Number: 001014427480
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For further credit to:
Template Software, Inc.
J. Late Payments - Payments not made by the due date shall be late. Late
payments shall accrue interest at one and one half percent per month,
or the maximum rate of interest allowed by the law of the Commonwealth
of Virginia of the United States of America, if less.
K. Taxes, Tariffs and Duties - DISTRIBUTOR shall be solely responsible for
all sales and use taxes, duties, tariffs, and other taxes on goods or
services furnished under this Agreement, provided that TEMPLATE
SOFTWARE shall be responsible for its own franchise and income taxes.
DISTRIBUTOR shall indemnify and hold harmless TEMPLATE SOFTWARE from
and against any taxes duties, tariffs and penalties levied by or on
behalf of any taxing entity or governmental authority with respect to
the DISTRIBUTORS obligations hereunder.
L. Expenses of DISTRIBUTOR - DISTRIBUTOR is solely responsible for any
expenses it incurs in the performance of its responsibilities under
this Agreement.
M. Audit - TEMPLATE SOFTWARE may audit DISTRIBUTOR's books and records
pertaining to the licensing of the Licensed Product(s) and the payment
of the applicable royalties, during normal office hours, at its own
expense, on ten (10) days notice.
ARTICLE VII - WARRANTIES, LIMITATIONS OF LIABILITY, AND REMEDIES
A. Warranty of Title and Authority - TEMPLATE SOFTWARE warrants that it
owns all rights, title and interest in the Licensed Product(s), and has
full power and authority to fulfill its obligations under this
Agreement.
B. Limited Warranty of Performance - TEMPLATE SOFTWARE further warrants
for a period of ninety (90) days from the execution of this Agreement
that the Licensed Product(s) will perform in accordance with its
specifications as contained in the Documentation.
C. Disclaimer of Warranties - EXCEPT FOR THE EXPRESS WARRANTIES STATED IN
SECTIONS VII(A) AND (B), TEMPLATE SOFTWARE DISCLAIMS, AND DISTRIBUTOR
HEREBY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING THE LICENSED PRODUCT(S) AND DOCUMENTATION.
TEMPLATE SOFTWARE DISCLAIMS, AND DISTRIBUTOR HEREBY WAIVES, RELEASES,
INDEMNIFIES AND AGREES TO HOLD HARMLESS TEMPLATE SOFTWARE FROM ANY
LIABILITY OR RESPONSIBILITY TO DISTRIBUTOR OR ANY CUSTOMER OF
DISTRIBUTOR FOR A LICENSED PRODUCT(S) THAT IS MODIFIED BY DISTRIBUTOR
OR CUSTOMER IN ANY WAY.
D. Limitation of Remedies - In the event of a breach of the express
warranties under this Agreement, DISTRIBUTOR's exclusive remedy shall
be prompt repair or replacement by TEMPLATE SOFTWARE of defective
Licensed Product(s) or, at TEMPLATE SOFTWARE's option, a refund of all
amounts paid by DISTRIBUTOR to TEMPLATE SOFTWARE for defective Licensed
Product(s) upon return of all copies of them to TEMPLATE SOFTWARE. In
no event shall either party be liable for indirect, incidental,
exemplary, or consequential damages, including loss of profits, or any
cause of action arising under or related to this Agreement, whether in
contract, tort, or strict liability, except in any action based on the
unauthorized disclosure, or use of Confidential Information or trade
secrets of TEMPLATE SOFTWARE; or any action based on TEMPLATE
SOFTWARE's copyrights, patents, trademarks, trade secrets, trade names,
or other proprietary rights.
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E. The parties expressly agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement.
F. DISTRIBUTOR warrants, covenants and agrees that, in the performance of
this Agreement and in connection with the sales of Licensed
Product(s), it has not and will not in the future, directly or
indirectly offer, pay, promise to pay, or authorize the payment of any
money or offer, promise to give or authorize the giving of anything of
value to:
1. any government official, any political party or official
thereof, or any candidate for political office; or
2. any other person while knowing or having reason to know
that all or a portion of such money or thing of value will
be offered, given or promised directly or indirectly, to
any such official, to any such political party of official
thereof, or to any candidate for political office:
for the purpose of
1. influencing any action or decision of such official, party
or official thereof, or candidate in his or its official
capacity, including a decision to fail to perform his or
its official functions;
2. inducing such official, party or official thereof, or
candidate to use his or its influence with any government
or instrumentality thereof to effect or influence any act
or decision of such government or instrumentality;
in order to assist DISTRIBUTOR in obtaining or retaining
business for or with or directing business to any person.
ARTICLE VIII - INTELLECTUAL PROPERTY
A. Ownership - All Licensed Product(s) and Updates shall be the sole
property of TEMPLATE SOFTWARE, including (without limitation) ownership
rights to patents, copyrights, trademarks, trade secrets and all other
property interests incidental thereto. All Licensed Product(s), in
whole or in part, shall be marked with such copyright, patent, or other
notices, proprietary legends, or restrictions as TEMPLATE SOFTWARE may
require. DISTRIBUTOR does not have the right to transfer, and shall not
attempt to transfer, TEMPLATE SOFTWARE ownership to the Licensed
Product(s).
B. Trademark - This Agreement does not grant DISTRIBUTOR any right, title,
interest, or license in or to any trademark or servicemark of TEMPLATE
SOFTWARE, except as may be approved in writing by TEMPLATE SOFTWARE.
C. Noncompetition - Except as otherwise provided herein, DISTRIBUTOR shall
not develop, market or sell any product that is competitive with the
Licensed Product(s) and shall not assist any other entity to sell or
supply, directly or indirectly, software products that perform the same
or comparable functions as the Licensed Product(s). DISTRIBUTOR can
market their "▇▇▇▇▇▇▇ Patrimoine" and "▇▇▇▇▇▇▇ Securite" applications
which include a run-time version of KBMS product from AICORP.
DISTRIBUTOR may, at its sole expense, convert such products to embed
the Run-Time Versions of the Licensed Product(s), subject to ten (10)
days advanced written notice to TEMPLATE SOFTWARE. The license fee
payable to TEMPLATE SOFTWARE by DISTRIBUTOR for each Run-Time Version
of the Licensed Product(s), so embedded, shall be calculated at the
greater of, fifteen percent (15%) of the list price of the converted
product, "▇▇▇▇▇▇▇ Patrimoine" and/or "▇▇▇▇▇▇▇ Securite", or $1,000.
Reporting
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and payment of license fees relating to such sales shall be in
accordance with Article VI, Section H.
ARTICLE IX - INDEMNITIES
A. By TEMPLATE SOFTWARE - TEMPLATE SOFTWARE hereby indemnifies and holds
harmless DISTRIBUTOR from and against any claims, actions, or demands
alleging that the Licensed Product(s) infringe upon any U.S. patent,
trademark, copyright, or other intellectual property right of any third
party under United States law or any state law thereof. DISTRIBUTOR
shall permit TEMPLATE SOFTWARE to replace or modify any affected
Licensed Product(s) so as to avoid infringement, or to procure the
right for DISTRIBUTOR to continue to use and remarket such items. If
neither alternative is reasonably possible, the infringing items shall
be returned to TEMPLATE SOFTWARE and TEMPLATE SOFTWARE's sole liability
to DISTRIBUTOR shall be to refund amounts paid for them by DISTRIBUTOR.
TEMPLATE SOFTWARE shall have no obligation and DISTRIBUTOR shall
indemnify and hold harmless TEMPLATE SOFTWARE under this Agreement with
respect to claims, actions, or demands alleging infringement which
arise by reason of the combination of non-infringing items with any
items not supplied by TEMPLATE SOFTWARE.
B. By DISTRIBUTOR - DISTRIBUTOR hereby indemnifies and holds harmless
TEMPLATE SOFTWARE from and against any claims, actions, or demands
arising with respect to this Agreement, including but not limited to
actions that arise due to DISTRIBUTOR's misrepresentation of the
Licensed Product(s) or its relationship with TEMPLATE SOFTWARE, with
the sole exception of those matters for which TEMPLATE SOFTWARE bears
responsibility under Article IX, Section A.
C. Conditions - The foregoing indemnities are conditioned on prompt
written notice of any claim, action, or demand for which indemnity is
sought, complete control of the defense and settlement thereof by the
indemnifying party, and cooperation of the other party in such defense
or settlement.
ARTICLE X - CONFIDENTIALITY
A. Safeguarding Confidential Information - DISTRIBUTOR shall insure that
unauthorized parties do not have access to Confidential Information.
DISTRIBUTOR shall prevent Confidential Information from being copied or
stolen. DISTRIBUTOR shall ensure that the obligation of confidentiality
is adhered to fully by any customer of DISTRIBUTOR. DISTRIBUTOR shall
limit access to Confidential Information to those employees of
DISTRIBUTOR having a specific need to know. DISTRIBUTOR shall obtain
written agreements from such employees and customers of DISTRIBUTOR to
maintain the confidentiality of the Confidential Information.
DISTRIBUTOR shall notify TEMPLATE SOFTWARE immediately of any violation
of a Licensed Product license or of any disclosure of Confidential
Information, and shall cooperate fully with TEMPLATE SOFTWARE to cure
the violation or disclosure. This Article X shall survive termination
or expiration of this Agreement.
B. Remedies - DISTRIBUTOR agrees that in the event of a breach or
threatened breach by DISTRIBUTOR, including its agents, directors, or
employees or any customer of DISTRIBUTOR, of this Article, TEMPLATE
SOFTWARE may have no adequate remedy in damages and shall be entitled
to an injunction against such breach, in addition to any other legal or
equitable remedies available to it. Any breach of this Article by
DISTRIBUTOR's agents, directors, or employees DISTRIBUTOR shall be the
joint and several responsibility of DISTRIBUTOR.
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C. Unfair Competition - DISTRIBUTOR specifically and without reservation
agrees that its failure to observe its confidentiality, intellectual
property and indemnification obligations under this Agreement shall
constitute unfair competition and shall entitle TEMPLATE SOFTWARE to
immediate relief for breach as set forth herein.
ARTICLE XI - TERM AND TERMINATION
A. Term - This Agreement shall become effective on the date DISTRIBUTOR or
TEMPLATE SOFTWARE has executed it (whichever is later) and shall remain
in effect for an initial period of thirty-six (36) months ("Base Term")
except as provided otherwise hereunder. Prior to the expiration of the
Base Term or the Extended Term, TEMPLATE SOFTWARE shall have the right
(but not the obligation) to renew this Agreement for additional one (1)
year periods. Any such renewal period shall be ("Extended Term").
TEMPLATE SOFTWARE shall renew this Agreement in one year increments
provided DISTRIBUTOR is not in default hereunder, has made the Sales
Quota in each calendar year as required hereunder, and TEMPLATE
SOFTWARE and DISTRIBUTOR mutually agree upon the Sales Quota for any
such Extended Term as provided in Addendum L.2.
B. Default - If an Event of Default occurs, TEMPLATE SOFTWARE shall have
the right (but not the obligation) to terminate this Agreement by
sending termination notice ("Termination Notice") to DISTRIBUTOR. The
Termination Notice shall describe the Event of Default and state that
this Agreement shall be terminated if the Event of Default is not cured
by DISTRIBUTOR within thirty days after receipt of the Termination
Notice by DISTRIBUTOR. If the Event of Default is not cured by
DISTRIBUTOR within thirty (30) days after DISTRIBUTOR's receipt of the
Termination Notice, this Agreement shall be terminated as of such
thirtieth day.
C. Bankruptcy, Reorganization or Liquidation - This Agreement may be
terminated by either party, if the other party becomes subject to any
voluntary or involuntary reorganization or liquidation proceedings and
as a consequence of such proceedings this Agreement is repudiated.
D. Convenience - TEMPLATE SOFTWARE shall have the right (but not the
obligation) to terminate this Agreement for convenience by providing at
least six (6) months prior written notice and by paying a Termination
Fee to DISTRIBUTOR. If TEMPLATE SOFTWARE terminates this Agreement for
convenience during the first consecutive twelve month period of the
Base Term, the "Termination Fee" shall mean an amount of money equal to
the lesser of 3.6 million FF or provable expenses incurred by
DISTRIBUTOR in performing this Agreement during such first twelve month
period. If TEMPLATE SOFTWARE terminates this Agreement for convenience
during the second consecutive twelve month period of the Base Term, the
"Termination Fee" shall mean an amount of money equal to the lesser of
5.6 million FF or provable expenses incurred by DISTRIBUTOR in
performing this Agreement during the past consecutive twelve month
period. If TEMPLATE SOFTWARE terminates or elects to not renew this
Agreement for convenience after the second consecutive twelve month
period of the Base Term, the "Termination Fee" shall mean an amount of
money equal to the lesser of one half of the Sales Quotas or one half
of the actual License Fees for the last twenty-four month period
immediately preceding the date such Termination Fee is paid to
DISTRIBUTOR. Payment of Termination Fee by TEMPLATE SOFTWARE to
DISTRIBUTOR shall be in full satisfaction of any and all claims of
DISTRIBUTOR against TEMPLATE SOFTWARE. Payment of such Termination Fee
shall be made only after (i) DISTRIBUTOR ceases to deliver Licensed
Product(s) and receive payment for Sublicense Agreements pursuant to
this Article XI Section E.1., (ii) all Sublicense Agreements have been
assigned pursuant to this Article XI Section E.3, (iii) DISTRIBUTOR has
made all payments due TEMPLATE SOFTWARE hereunder and (iv) there
remains no outstanding disputes related to this Agreement.
E. Rights Upon Termination or Expiration of Term
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1. Upon termination of this Agreement by TEMPLATE SOFTWARE,
DISTRIBUTOR shall cease to use, market, promote and
sublicense the Licensed Product(s). Notwithstanding the
above, DISTRIBUTOR shall retain the right for up to six
months after the termination of this Agreement to deliver
Licensed Product(s) and receive payment for Sublicense
Agreements that were entered into prior to the date of any
such expiration or termination of this Agreement.
2. Upon termination of this Agreement by DISTRIBUTOR under
Section C of this Article, DISTRIBUTOR rights shall be
defined in accordance with Section F - Escrow.
3. Upon any termination of this Agreement, except for
termination by DISTRIBUTOR under Section C of this Article,
TEMPLATE SOFTWARE shall assume full responsibility for the
licensing or sublicensing of the Licensed Products and the
provision of technical and other support services to
End-Users and shall be entitled to all fees for the use of
the Licensed Products and the furnishing of such services.
In furtherance thereof, DISTRIBUTOR shall be deemed to have
assigned to TEMPLATE SOFTWARE, or such other person or
entity as TEMPLATE SOFTWARE directs, all of its rights and
obligations under any and all Sublicense Agreements that
DISTRIBUTOR has entered into with End-Users, and
DISTRIBUTOR shall deliver to TEMPLATE SOFTWARE, or to such
other person, a duly executed written assignment of such
rights, together with such other documents as may be
necessary or advisable in the reasonable opinion of
TEMPLATE SOFTWARE to effectuate such assignment.
4. No termination of this Agreement shall affect the
obligation of DISTRIBUTOR to make license, royalty, or
maintenance payments which have become due to TEMPLATE
SOFTWARE prior to the effective date of such termination.
F. Escrow - TEMPLATE SOFTWARE has and shall continue to deposit all
current versions of the Licensed Product(s) in escrow for the purpose
of maintaining a secure backup copy of the Source Code for the
protection of TEMPLATE SOFTWARE and Licensed Product(s) licenses. Upon
written request from DISTRIBUTOR, TEMPLATE SOFTWARE or its authorized
escrow agent shall release to DISTRIBUTOR one copy of the most current
version of the Source Code for the Licensed Product(s) upon the
occurrence of one of the following events:
1. The cessation for a period of more than thirty (30) days of
all active business operations by TEMPLATE SOFTWARE, except
as provided below.
2. The filing of any bona-fide petition under the provisions
of the Federal Bankruptcy Act, or similar federal or state
statute, by or against TEMPLATE SOFTWARE, except as
provided below.
3. The application for appointment of a receiver for or the
making of a general assignment for the benefit of creditors
by TEMPLATE SOFTWARE, except as provided below.
4. The transfer, disposition or condemnation of all or
substantially all of the assets of TEMPLATE SOFTWARE, by
whatever means accomplished, to a party not intending to
continue TEMPLATE SOFTWARE's computer software operations.
Notwithstanding the occurrence of any of the events specified in 1.,
2., or 3. of this Section, TEMPLATE SOFTWARE or its escrow agent shall
not be required to deliver the requested Licensed Product(s) Source
Code to DISTRIBUTOR if TEMPLATE SOFTWARE or any other party has made
arrangements for the continued maintenance and support of the Licensed
Product(s).
DISTRIBUTOR may use Source Code received pursuant to this Section only
as necessary to modify, maintain and update the Licensed Product(s).
Receipt by DISTRIBUTOR of Licensed
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Product(s) Source Code Pursuant this Section does not affect the
proprietary rights of TEMPLATE SOFTWARE in the Licensed Product(s) or
Documentation and does not alter DISTRIBUTOR's obligation under this
Agreement to protect Confidential Information.
G. Waiver of Default - An Event of Default shall only be waived in
writing. Such writing must describe the Event of Default being waived,
state that the Event of Default is being waived and bear the signature
of the party waiving the Event of Default.
H. Waiver - This Agreement shall be only terminated or renewed as
expressly provided hereunder. DISTRIBUTOR hereby waives any and all
rights under the laws of France or otherwise to automatic renewal of
this Agreement, extended termination notice or the payment of damages,
claims or costs exceeding the amounts set forth above for termination
of this Agreement by TEMPLATE SOFTWARE. DISTRIBUTOR shall indemnify,
release and hold harmless TEMPLATE SOFTWARE from any and all costs,
claims and liabilities resulting from or arising out of termination of
this Agreement by TEMPLATE SOFTWARE except as expressly provided
hereunder.
I. Consequential Damages - TEMPLATE SOFTWARE shall not be liable to
DISTRIBUTOR for any consequential, exemplary, incidental or punitive
damages, regardless of whether TEMPLATE SOFTWARE has been advised of
the possibility of such damages in advance or whether such damages are
reasonably foreseeable.
ARTICLE XII - INDEPENDENT RELATIONSHIP
DISTRIBUTOR shall perform under this Agreement only as an independent
contractor. DISTRIBUTOR shall have the sole obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed its obligation under
this Agreement. Nothing set forth in this Agreement shall be construed to create
the relationship of principal and agent between TEMPLATE SOFTWARE and
DISTRIBUTOR. DISTRIBUTOR shall not act or attempt to act or represent itself,
directly or by implication, as an agent of TEMPLATE SOFTWARE or in any manner
assume or create, or attempt to assume or create, any obligation on behalf of,
or in the name of TEMPLATE SOFTWARE. DISTRIBUTOR shall be solely responsible for
all taxes and insurance of its activities under this Agreement, including
franchise taxes, employment-related taxes, federal, state, and local income
taxes, and liability, health, and disability insurance. DISTRIBUTOR hereby
waives and agrees to indemnify and hold harmless TEMPLATE SOFTWARE against any
claims by DISTRIBUTOR's employees or customers against TEMPLATE SOFTWARE.
ARTICLE XIII - NOTICES
All notices or other communications required or contemplated herein shall be
deemed received (i) upon personal delivery in writing, (ii) upon confirmed
receipt of a wire communication (telex, twx, datafax, etc.), (iii) one day after
delivery by express courier, or (iv) three days after mailing by U.S. mail,
return receipt requested, to the other party's Contract Administrator at the
address below. Either party may change its address for notification purposes by
written notice to the other party.
A. For TEMPLATE SOFTWARE
1. Contract Administrator:
Director of Finance and Contracts,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. Technical Liaison:
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, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or
designee or successor.
B. For DISTRIBUTOR
1. Contract Administration:
▇▇▇▇▇ ▇▇▇▇▇▇, President, 13, ▇▇▇ ▇▇▇▇▇▇
Micholet 94270 Le KREMLIN BICETRE
2. Technical Liaison:
Thierry Petie, Consultant, ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ BICETRE
C. The Technical Liaison may clarify, explain, provide further details, handle
necessary technical matters, implement technical aspects, and develop
administrative procedures, but shall have no authority to change any of the
terms of this Agreement.
ARTICLE XIV - MISCELLANEOUS
A. Force Majuere - Neither party is liable for delay or failure in
performance resulting from acts beyond the reasonable control of such party,
including, but not limited to, any acts or omissions of any government or
governmental authority, natural disaster, act of a public enemy, riot,
sabotage, disputes or differences with workmen, acts of terrorism, power
failure, delays in transportation, acts of God, or any events reasonable
beyond the control of the parties.
B. Disputes - Any disputes arising under this Agreement relating to payment
shall be finally settled under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said rules. Any party to this Agreement shall have the
right to have recourse to and shall be bound by the Pre-arbitral Referee
Procedure of the International Chamber of Commerce in accordance with its
Rules. In the event of litigation or arbitration under this Agreement, the
prevailing party shall be entitled to recover its reasonable attorney's fees.
C. Assignment - Any assignments hereunder by DISTRIBUTOR without the written
consent of TEMPLATE SOFTWARE shall be void.
D. Severability - If any provision of this Agreement is held to be
unenforceable, the enforceability of remaining provisions shall be
unaffected.
E. Survival - The parties' rights and remedies relating to payment,
indemnification, liability and confidential and proprietary information shall
survive termination or expiration of the term of this Agreement.
F. Choice of Law - This Agreement shall be governed by law of the Commonwealth
of Virginia, USA except for its rules on conflicts of laws. Venue shall be in
the Commonwealth of Virginia, United States of America.
G. No Third Party Beneficiaries - The parties do not intend this Agreement to
create any enforceable rights by any third party.
H. Waiver - The waiver by either party of any provision or breach of this
agreement shall not waive any other term or succeeding breach. Any such
waiver must be in writing.
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I. Entire Agreement- This Agreement, including its Addenda, is the complete,
final, and exclusive understanding between the parties relating to its
subject matter. This Agreement may not be modified or supplemented except in
a writing signed by both parties.
TEMPLATE SOFTWARE
NAME: E. L. ▇▇▇▇▇▇
-----------------------------------
TITLE: Chief Executive,0fficer
-----------------------------------
DATE: /s/ illegible
-----------------------------------
DISTRIBUTOR
NAME: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
TITLE: President
-----------------------------------
DATE:
/s/ illegible
-----------------------------------