DATED 29th June 1999
iOra Ltd
('iOra')(1)
DXP New Media Services Limited
('The OEM') (2)
OEM
PARTNERSHIP
AGREEMENT
OEM PARTNERSHIP AGREEMENT
This AGREEMENT is made the 29th day of June 1999
BETWEEN
1. iOra Ltd a company incorporated in England (registered number 3445693) and
having its registered office at Meadlands Broad Layings, Woolton Hill, Newbury,
Berks ▇▇▇▇ ▇▇▇ ("iOra" which shall include all or any of its subsidiaries,
agents, successors or assigns)
AND
2. DXP New Media Services Limited a company incorporated in England (company
number 03732349) and having its registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ on the Water, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"OEM")
WHEREAS:
A. iOra is engaged in development and marketing certain software known as
SoftCD(TM).
B. The OEM is engaged inter alia in the business of Consultancy and the
provision of Application Solutions, and wishes to acquire from iOra the right to
license and/or sub-license the Software as an integral part of such solutions.
C. The parties wish to cooperate, with a view to the OEM acting as a single
solution provider to Customers and providing Application Solutions which include
the use of the Software.
D. iOra proposes to grant to the OEM the non-exclusive right for the OEM to sell
licenses for the use of the Software in the Territory, and in accordance with
the terms and subject to the conditions herein contained.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions and Interpretation:
In this Agreement:
1.1. 'Agreed Promotional Project' means an Application Solution involving
the distribution of Promotional Material, and where the details of the
proposed promotional project (including the numbers of those who are to
receive Promotional Material) have been approved in writing in advance
by iOra. iOra may grant or withhold such approval at its sole
discretion.
1.2. 'Application Solution' means the application of the Software for the
periodic circulation of updates in electronic format (including
software, documents, and multimedia), customised to a Customer's
specific requirements.
1.3. 'CD Business Card' means a storage product whose physical size is
similar to a business card measuring approximately 3" x 2" (and
including any size within 20% of these dimensions) manufactured
utilising CD Technology
1.4. 'Customer' means a customer of the OEM, and includes (for the avoidance
of doubt) a customer of the OEM with whom the OEM is at the material
time contracting, whether or not the OEM has previously contracted with
that customer.
1.5. 'Licence Terms' means the licence terms for the use of the Software as
incorporated within the Software.
1.6. 'Managed Service' means an Application Solution where the OEM produces
electronic updates (Amendments to Publications) using the Software for
or on behalf of a Customer.
1.7. 'Minimum Royalty Rate' means the sum specified as such in the First
Schedule.
1.8. 'OEM Sales Target' and 'OEM Discount' means the sum and percentage
respectively so defined in the First Schedule.
1.9. 'Operative Date' means the date so defined in the First Schedule.
1.10. 'Product Licence Fee' and 'Product Support Fee' means the sums so
described in the Second Schedule, subject to change from time to time
on notice in accordance with this Agreement.
1.11. 'Product Support Agreement' means an agreement between the OEM and a
Customer for the support of the Software.
1.12. 'Promotional Material' meant electronic information distributed to a
recipient of the information by a distributor of the information,
where:
1.12.1. the distributor is the person or organisation on whose behalf
the information is distributed, and
1.12.2. the recipient receives the information free of charge, and
1.12.3. the recipient is neither directly employed by the distributor
nor acting as a sales agent, either directly or indirectly,
for the distributor.
1.13. 'Publisher Licence Number' means a Publisher Licence Number issued by
iOra in connection with the licensing of the Software.
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1.14. 'the Software' means the software known as SoftCD(TM), owned and
marketed by iOra and including any documentation and manuals relating
thereto, including SoftCD(TM) Publisher and SoftCD(TM) Client software.
1.14.1. 'SoftCD(TM)Publication' means a CD or a directory on a disk or
CD, which is updated using SoftCD(TM).
1.14.2. 'SoftCD(TM)Amendments' mean a set of files that represent the
differences between two versions of a Publication with
different content, produced by SoftCD(TM) Publisher.
1.15. 'Territory' means the Territory defined as such in the Third Schedule.
1.16. The headings of the paragraphs of this Agreement are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
2. Grant
2.1. iOra hereby grants to the OEM and the OEM hereby accepts the right to
grant licenses for the use of the Software in accordance with the
provisions of Licence Terms in the Territory under the trade marks
SoftCD(TM) and iOra during the continuance of this Agreement.
2.2. For the avoidance of doubt such right is limited to the granting of
such licences:
2.2.1. to Customers as an integral part of a Application Solution
offered by the OEM to such Customers, where the list price of
the Software licensed to the Customer amounts to no more than
80% of the OEM's total charge to its Customer.
2.2.2. to Customers and prospective Customers as part of an Agreed
Promotional Project.
2.2.3. to Customers in connection with the provision by the OEM of a
Managed Service for such Customers.
2.3. It is acknowledged and agreed that
2.3.1. the OEM does not have the right to appoint subdistributors, or
to sell licences to use the Software other than direct to its
Customers as part of an Application Solution.
2.3.2. The OEM shall purchase the Software only from iOra.
2.3.3. The OEM does not have the right to sell licenses to use the
Software in projects which involve updating of CD Business
Cards except where such right has been expressly granted to
the OEM in a separate agreement. For the avoidance of doubt
the terms upon which the OEM shall have any such rights should
be governed by any such separate agreement to the exclusion of
this agreement.
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2.3.4. iOra retains all rights in respect of marketing the Software,
and may licence the Software directly to end-users and
prospective end-users, and grant such other licences and
sublicences to other parties in relation to the distribution
and marketing of the Software as it thinks fit.
3. Term
3.1. This Agreement shall take effect on the Operative Date and shall
continue for an initial period of one year, and from year to year
thereafter until or unless terminated by either party giving to the
other not less than thirty days prior written notice, subject always to
prior termination as hereinafter specified.
3.2. iOra may give the OEM written notice one month before any anniversary
of the Operative Date to change the OEM Sales Target and/or the OEM
Discount and/or the Minimum Royalty Rate with effect from such
anniversary.
4. Marketing
4.1. iOra will provide the OEM from time to time with up to date pricing
structures for the Software and for support thereof. Prices are subject
to change on one month's notice from iOra.
4.2. iOra will provide the OEM from time to time with up to date product
information and with iOra's own marketing materials.
4.3. The OEM may from time to time propose promotional projects to iOra.
iOra will promptly inform the OEM whether or not it is prepared to
accept such proposals as Agreed Promotional Projects.
4.4. The parties may cooperate in connection with proposals for education,
promotion, joint marketing, and the preparation of joint marketing
materials and collateral, in relation to the Software and the OEM's
services. All costs of such activities will be agreed between the
parties; provided that neither party shall be in any way restricted
from carrying out its own such activities.
4.5. Any marketing materials produced by the OEM in relation to the Software
shall first be submitted to iOra for iOra's, prior approval, including
(where necessary) an English language translation thereof. The OEM will
not use such materials without iOra's prior written approval. iOra will
not unreasonably withhold or delay such approval.
4.6. The parties will cooperate with a view to identifying, targeting and
marketing to suitable prospective customers:
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4.6.1. iOra will introduce the OEM to such prospective customers as
it considers appropriate, with a view to the OEM negotiating
with such prospective customers for the provision to them of a
Application Solution involving the use of the Software.
4.6.2. iOra will propose the OEM on such bid opportunities as it
considers appropriate, with a view to the parties co-operating
to assist the OEM to secure a contract involving the provision
of a Application Solution involving the use of the Software.
4.6.3. The OEM will introduce the Software to such of its existing
customer base as it considers appropriate, with a view to
providing Application Solutions involving the use of the
Software.
Provided that iOra shall not be precluded from introducing other OEMs
to or from dealing directly with prospective customers who have not
been introduced by the OEM to iOra where iOra in its sole discretion
considers it more appropriate to do so.
5. Supply of the Software
5.1. iOra shall forthwith upon execution of this Agreement and at its own
cost furnish the OEM with one copy of the Software and a Publisher
Licence Number for evaluation, demonstration and support purposes and
in accordance with the Licence Terms, and with copies of all available
file maintenance documentation, drawings, data, upgrade and "bug" lists
that are necessary to enable the OEM to support the Software. Any
licence granted to the OEM for the use of the Software (including any
licence separately purchased by the OEM) does not extend so as to
permit the use of SoftCD(TM)Publisher for provision of Managed
Services; a separate SoftCD(TM)Publisher licence is required in respect
of each Customer for whom SoftCD(TM)Amendments are produced, and
separate SoftCD(TM)Client licences are required in respect of each
Customer whose SoftCD(TM)Amendments are produced and distributed. The
licence hereby granted to the OEM shall subsist for so long as this
Agreement remains in effect or until or unless otherwise suspended or
revoked.
5.2. iOra undertakes also to keep the OEM fully informed of and make
available to the OEM any changes, additions or modifications to the
Software and to such documentation, drawings, data, upgrade and "bug"
lists that may have an effect on marketing, operation, performance,
cost or support by within seven (7) days of release of such revisions.
5.3. The OEM shall, on all copies made of any such information, faithfully
reproduce the copyright symbol, legend or clause or, in the absence of
same, insert the copyright symbol of iOra.
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5.4. iOra will in connection with each sale of a licence for the use of the
Software issue a Publisher Licence Number. iOra will keep proper and
accurate records of all Publisher Licence Numbers issued to the OEM,
and the OEM will keep proper and accurate records of all Publisher
Licence Numbers issued by the OEM and in respect of each such number
will advise iOra within 7 days of the name and address of the Customer
to whom it has been issued or on whose behalf a Managed Service has
been purchased.
6. Commercial and Technical Assistance, and Support
6.1. iOra undertakes from time to time during the continuance of this
Agreement, at the request of the OEM, to render to the OEM reasonable
commercial and technical assistance and training in connection with
use, application and marketing of the Software, and to enable the OEM
to provide front-line support thereof to its Customers.
6.2. The OEM will offer to enter into a Product Support Agreement to provide
end-user support to all those who have purchased licences to use the
Software from the OEM, and on entering an agreement with a Customer to
provide support the OEM will forthwith provide iOra with the name of
the Customer and the date of such agreement.
6.3. iOra will at all times during the continuance of this Agreement during
its normal working hours provide the OEM with such backup support as
the OEM may reasonably require in connection with such problems
relating to the Software that the OEM is unable to resolve itself
(including bug-fixing), to the intent that wherever practicable the OEM
will resolve problems directly for its own Customers, and the OEM and
not iOra will deal with all Customer contact in connection with such
support.
6.4. The cost of such assistance as is provided by iOra will be borne by
iOra unless otherwise agreed between the parties.
7. Payment
7.1. In respect of each licence granted for the use of the Software and each
Support Agreement entered for support of the Software the OEM shall pay
iOra the fee stated in the Second Schedule, less the discount specified
therein.
7.2. iOra will invoice the OEM monthly for all sums due. Each invoice will
be accompanied by a summary showing how the invoiced sum is arrived at.
7.3. iOra's invoices shall be payable (together with VAT, where applicable)
within 30 days of invoice.
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7.4. Payment shall be made either:
7.4.1. by check or draft drawn on a UK clearing bank, or
7.4.2. by SWIFT standard inter-bank transfer to iOra's account at
such UK bank as may be notified to the OEM from time to time,
in which case the OEM shall pay any charges in connection with
the transfer applied by the OEM's own bank;
7.5. In the event of late payment:
7.5.1. iOra may charge interest on all sums overdue at the rate of 2
per cent per month (or at the maximum amount permitted under
any applicable law, if less), compounded monthly from the due
date until payment.
7.5.2. and the OEM shall fail to make good such payment within thirty
(30) days from receipt of notice from iOra that the payment is
late, iOra may suspend and/or revoke the OEM's Licence and its
authority to license and sub-license the Software and/or may
suspend and/or terminate this Agreement.
8. Undertakings by the OEM
The OEM undertakes and agrees with iOra that it will at all times during the
continuance in force of this Agreement and where applicable, following
termination hereof observe and perform the terms and conditions set out in
this Agreement and in particular:
8.1. shall at all times refrain from engaging in any illegal, unfair,
deceptive or unethical business practices whatsoever, whether with
respect to the Software or otherwise;
8.2. shall not make any false or misleading representations to customers or
other persons with regard to the Software;
8.3. shall not make any representations with respect to the specifications,
features or capabilities of the Software which are not consistent with
those described in iOra's promotional materials;
8.4. will, in all correspondence and other dealings relating directly or
indirectly to the licensing or other transaction relating to the
Software, clearly indicate that it is acting as OEM and not as author
or developer of the Software;
8.5. will not incur any liability on behalf of iOra or in any way pledge or
purport to pledge iOra's credit or purport to make any contract binding
upon iOra;
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8.6. will not alter, obscure, remove, conceal or otherwise interfere with
any eye-readable or machine-readable marking on the Software or its
packaging which refers to iOra as author or developer of the Software
or otherwise refers to iOra's copyright or other intellectual property
rights in the Software;
8.7. will immediately bring to the attention of iOra any improper or
wrongful use of iOra's trade marks, emblems, designs, models or other
similar industrial, intellectual or commercial property rights which
come to the notice of the OEM and will in the performance of its duties
under this Agreement use every effort to safeguard the property rights
and interests of iOra and will at the request and cost of iOra take all
steps required by iOra to defend such rights;
8.8. will not whilst this Agreement subsists become involved in the
development or sale of any product which substantially competes with
the Software;
8.9. will not after the termination of this Agreement interfere or seek to
interfere with any dealings between iOra and the OEM's Customers
concerning the Software.
9. Inspection and Audit
9.1. The OEM shall keep complete and accurate books and records with respect
to this Agreement in order to determine accurately the amount owed to
iOra hereunder. The OEM shall preserve such records for at least two
years after the termination of this Agreement.
9.2. iOra shall have the right during the term of this Agreement and within
two years thereafter, to appoint a Chartered Accountant to inspect
audit and take copies or extracts from such books and records of the
OEM upon reasonable prior notice during normal business hours at the
OEM's offices, for the purpose of verifying the accuracy of the
statements provided to iOra under this Agreement. The OEM agrees to
provide such Chartered Accountant with such assistance cooperation and
further information as the Chartered Accountant may reasonably require
for such purpose.
9.3. If such inspection reveals that the OEM's payments were less than the
amount which should have been paid, then the OEM shall pay to iOra any
sums shown to be due together with interest thereon calculated on the
basis that such sums fell due on the date on which they should have
been declared to iOra.
9.4. In the event of an inspection revealing an error in excess of 5% of the
total sums accrued due during the period for which such inspection and
audit was made the OEM shall pay to iOra all the costs of such audit
and inspection upon receipt of an appropriate invoice justifying the
costs. Otherwise, iOra will pay all the costs of the audit and
inspection.
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10. Warranty
10.1. iOra DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE ERROR-FREE
BUT IF ANY COPY OF THE SOFTWARE IS DEMONSTRATED TO iOra WITHIN NINETY
(90) DAYS FROM THE DATE OF DELIVERY TO OR DOWNLOAD BY THE OEM TO
CONTAIN AN ERROR OR MALFUNCTION, OR IS OTHERWISE SUBSTANTIALLY
INCONSISTENT WITH ANY ACCOMPANYING DOCUMENTATION, iOra WILL USE ALL
REASONABLE ENDEAVOURS TO CORRECT SUCH ERROR OR MALFUNCTION OR (AT ITS
OPTION) REPLACE SUCH COPY OF THE SOFTWARE FREE OF CHARGE PROVIDED THAT:
10.1.1. THE SOFTWARE HAS BEEN USED AT ALL TIMES PROPERLY AND IN
ACCORDANCE WITH INSTRUCTIONS FOR USE; AND
10.1.2. NO ALTERATION, MODIFICATION OR ADDITION HAS BEEN MADE TO THE
SOFTWARE WITHOUT iOra'S PRIOR WRITTEN CONSENT; AND
10.1.3. THE ALLEGED ERROR, MALFUNCTION OR INCONSISTENCY HAS BEEN
NOTIFIED TO iOra WITHIN THE WARRANTY PERIOD SPECIFIED ABOVE.
10.2. EACH CLAIM OF THE OEM UNDER THIS WARRANTY SHALL BE SENT IN WRITING. BY
POST OR BY FAX, TO iOra SPECIFYING THE SOFTWARE AND THE NATURE OF THE
ALLEGED ERROR OR MALFUNCTION.
10.3. EXCEPT AS OTHERWISE PROVIDED IN THIS CLAUSE, iOra MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
10.4. THE SOFTWARE IS NOT WARRANTED TO BE FAULT-TOLERANT, AND IS NOT INTENDED
FOR THE DESIGN, CONSTRUCTION. MAINTENANCE, OPERATION, CONTROL, OR ANY
OTHER USE IN CONNECTION WITH HIGH RISK SYSTEMS, AND WE SPECIFICALLY
DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR PURPOSE IN
CONNECTION WITH HIGH RISK SYSTEMS.
10.5. The OEM will not sell licences for the use of the Software for any
purpose in connection with High Risk Systems. 'High Risk Systems' means
systems in environments requiring fail-safe performance (such as
nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines, or weapons systems), in
which the failure of the Software could lead directly to death,
personal injury, or severe physical or environmental damage.
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10.6. The OEM acknowledges that it is not technically practicable to
guarantee software to be error-free, and agrees that if any such errors
are found to exist they shall not constitute a breach of this
Agreement.
10.7. Although iOra does not warrant that the Software supplied hereunder
shall be free from all known viruses, it has used commercially
reasonable efforts to check for the most commonly known viruses. The
OEM is nevertheless solely responsible for virus scanning the Software.
10.8. iOra warrants to the OEM that it is entitled to grant the rights
granted under this agreement and that use of the Software in accordance
with this agreement will not infringe the rights of a third party.
11. Liability
11.1. iOra shall not be liable to the OEM or to any other persons for any
loss or damage whatsoever or howsoever caused arising directly or
indirectly in connection with this Agreement, the Software, its use,
application, support, or otherwise, except to the extent to which it is
unlawful to exclude such liability.
11.2. Notwithstanding the generality of the above, iOra expressly excludes
liability for consequential loss, damage, or corruption to other
software or data, or for loss of profit, business, revenue, goodwill or
anticipated savings.
11.3. In the event that any exclusion contained in this Agreement shall be
held to be invalid for any reason and iOra becomes liable for loss or
damage that it may otherwise have been lawful to limit, such liability
shall be limited to all such sums as are payable by the OEM to iOra
under the terms of this Agreement.
11.4. iOra does not exclude liability for death or personal injury to the
extent only that the same arises as a result of the negligence of iOra
its employees, agents or authorized representatives.
11.5. The OEM hereby undertakes to take out and maintain adequate insurance
cover with a reputable insurance company approved by iOra against any
liability which the OEM or iOra may incur to an endorser or to any
other person in connection with the Software or support thereof. The
OEM shall upon request produce to iOra the policy of such insurance,
the premium receipt and insurance certificate.
12. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
12.1. The OEM acknowledges that any and all of the copyright, trade marks and
other intellectual property rights in the Software including all
documentation and manuals relating thereto are and shall remain the
property of iOra and the OEM shall not during or at any time after the
expiry or termination of this Agreement in any way question or dispute
the ownership thereof by iOra.
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12.2. The OEM also acknowledges that such copyright, trade marks and other
rights belonging to iOra may only be used by the OEM with the consent
of iOra and during this Agreement. Upon expiry or termination hereof
the OEM shall forthwith discontinue such use, without any right of
compensation for such discontinuation.
12.3. The OEM shall not during or after the expiry or termination of this
Agreement, without the prior written consent of iOra, use or adopt any
name, trade name, trading style or commercial designation that includes
or is similar to or may be mistaken for the whole or any part of any
trade ▇▇▇▇, trade name, trading style or commercial designation used by
iOra.
13. Confidential Information
13.1. iOra has imparted and may from time to time impart to the OEM certain
confidential information relating to the Software, successor or
enhanced software or other software or marketing or support thereof
(including specifications therefor) and the OEM may otherwise obtain
confidential information concerning the business and affairs of iOra
pursuant to this Agreement. The OEM hereby agrees that it will use such
confidential information solely for the purposes of this Agreement and
that it shall not disclose, whether directly or indirectly, to any
third party such information other than as required to carry out the
purposes of this Agreement. In the event of and prior to such
disclosure, the OEM will obtain from such third parties duly binding
agreements to maintain in confidence the information to be disclosed to
the same extent at least as the OEM is so bound hereunder.
13.2. The OEM further agrees that upon expiry or termination of this
Agreement it shall not itself or through any subsidiary or agent or
otherwise, sell, license, sub-license, market, distribute or otherwise
deal with any of the Software (in whole or in part) except to the
extent permitted by the applicable law or develop any software or have
any software developed through use of any confidential information
supplied to it by iOra, or in any other way obtained by the OEM
pursuant to this Agreement.
13.3. The foregoing provisions shall not prevent the disclosure or use by the
OEM of any information which is or hereafter, through no fault of the
OEM, becomes public knowledge or to the extent permitted by law.
14. Termination or Expiry
14.1. Notwithstanding any provisions herein contained this Agreement may be
terminated forthwith by either party by notice in writing from the
party not at fault if any of the following events shall occur, viz.:
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14.1.1. if the other party shall at any time be in default under this
Agreement and shall fail to remedy such default (if capable of
remedy) within thirty (30) days from receipt of notice in
writing from the first party specifying such default;
14.1.2. if the other party shall commit any act of bankruptcy, shall
have a receiving order made against it, shall make or
negotiate for any composition or arrangement with or
assignment for the benefit of its creditors or if the other
party being a body corporate, shall present a petition or have
a petition presented by a creditor for its winding up or shall
enter into any liquidation (other than for the purpose of
reconstruction or amalgamation), shall call any meeting of its
creditors, shall have a receiver of all or any of its
undertakings or assets appointed, shall be deemed by virtue of
the relevant statutory provisions under the applicable law to
be unable to pay its debts, or shall cease to carry on
business;
14.1.3. if either party is by any cause (other than a cause directly
attributable to the other party) prevented from performing its
obligations hereunder for a period of three (3) consecutive
weeks or for a total period of six (6) weeks in any period of
twelve (12) consecutive weeks.
14.2. If any such event referred to in this sub-clause shall occur,
termination shall become effective forthwith or on the date stated in
such notice.
14.3. The expiry or termination of this Agreement shall be without prejudice
to the rights of the parties accrued up to the date of such expiry or
termination.
14.4. Upon expiry or termination (for whatever reason) of this Agreement, the
OEM shall return or destroy (as iOra shall instruct) no later than
fourteen (14) days thereafter, all Software, documentation, technical
information and any other data supplied to the OEM during the
continuance of this Agreement and all and any copies made of the whole
or any part of the same and the OEM shall furnish iOra with a
certificate, certifying that the same has been done. For such purpose
iOra or any one or more of its agents or authorized representatives
shall be entitled at any time and without notice to enter upon any
premises in which the same are or are reasonably believed by iOra, to
be kept, stored or used.
14.4.1. Upon expiry or termination of this Agreement all the rights
and obligations of the parties under this Agreement shall
automatically terminate except for such rights of action as
shall have accrued prior to such termination and any
obligations which expressly or by implication are intended to
come into or continue in force on or after such termination;
14.4.2. the OEM shall be entitled to sell any of its stocks which have
been fully paid for and which are required to fulfil any
unperformed contracts of the OEM outstanding at the date of
termination (and to that extent and for that purpose the
provisions of this Agreement shall continue in effect);
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14.4.3. Customers who have purchased and/or received the Software from
the OEM prior to termination shall be permitted to continue
using the Software on the Licence Terms.
15. Miscellaneous
15.1. Media Releases
All media releases, public announcements and public disclosures by
either party relating to this Agreement shall be co-ordinated with and
approved by both parties prior to the release thereof.
15.2. Force Majeure
iOra shall not be under any liability to the OEM or to any other party
in any way whatsoever for destruction, damage, delay or any other
matters of any nature whatsoever arising out of war, rebellion, civil
commotion, strikes, lock-outs or industrial disputes; fire, explosion,
earthquake, acts of God, flood, drought or bad weather; the
unavailability of deliveries, supplies, software, disks or other media
or the requisitioning or other act or order by any government
department, council or other constituted body.
15.3. Relationship of the OEM to iOra
15.3.1. It is agreed and understood that the OEM is not the agent or
representative of iOra and has no authority or power to bind
or contract in the name of or to create any liability against
iOra in any way or for any purpose. It is understood that the
OEM is an independent contractor with non-exclusive rights
confirmed by this Agreement to license, market, and support
the Software on its own accord and responsibility in the
Territory.
15.3.2. In particular, the parties deny that notwithstanding the title
of this Agreement, it does not constitute a partnership
agreement within the legal meaning of that expression, and the
legal relationship of partnership does not and will not exist
between them.
15.3.3. It is acknowledged that the terms of this Agreement have been
negotiated between the parties, and that in deciding the terms
to offer the OEM iOra has taken into account the proven track
record and market position of the OEM.
15.3.3.1. iOra reserves the right to enter other similar
agreements with other OEMs on the same or on
different terms.
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15.3.3.2. This Agreement shall not be assigned by the OEM
whether voluntarily or involuntarily or by
operation of law, in whole or in part, to any party
without the prior written consent of iOra, which
consent may be granted or refused at iOra's sole
discretion. No such assignment by the OEM howsoever
occurring shall relieve the OEM of its obligations
hereunder.
15.4. Waiver
Failure or neglect by iOra to enforce at any time any of the provisions
hereof shall not be construed nor shall be deemed to be a waiver of
iOra's rights hereunder nor in any way affect the validity of the whole
or any part of this Agreement nor prejudice iOra's rights to take
subsequent action.
15.5. Notices
All notices shall be sent by e-mail to the other party's mailbox where
practicable, and shall also be given in writing, and shall be deemed to
have been duly given when delivered by hand, posted by registered first
class post (airmail if international) or sent by fax to the party to
which such notice is required to be given at the business address
and/or fax number stated in this agreement or to such other address or
fax number as such party may have specified to the other in writing.
Notices shall be deemed received when the earliest of the following
occurs:
15.5.1. Notices delivered by e-mail shall be acknowledged immediately
on receipt, and shall be deemed received when so acknowledged.
15.5.2. Notices delivered by hand or sent by fax shall be deemed
received the first working day following such delivery or
sending.
15.5.3. Notices which have been posted as above shall he deemed
received on the second (fifth if international) working day
following posting.
15.6. Agreement
This Agreement supersedes any arrangements, understandings, promises or
agreements made or existing between the parties hereto prior to or
simultaneously with this Agreement and constitutes the entire
understanding between the parties hereto. Except as otherwise provided
herein, no addition, amendment to or modification of this Agreement
shall be effective unless it is in writing and signed by and on behalf
of both parties.
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15.7. Severability
In the event that any or any part of the terms, conditions or
provisions contained in this Agreement shall be determined by any
competent authority to be invalid, unlawful or unenforceable to any
extent such term, condition or provision shall to that extent be
severed from the remaining terms, conditions and provisions which shall
continue to be valid and enforceable to the fullest extent permitted by
law.
15.8. Law
The parties hereby agree that this Agreement and the provisions hereof
shall be construed in accordance with English Law, and the Courts of
England shall have exclusive jurisdiction. In any such action the
parties hereby waive any right to allege lack of personal jurisdiction,
improper venue or inconvenient forum.
Signing Provisions
By iOra Ltd by Paddy Falls /s/ ▇▇▇▇▇▇▇ Falls
(Authorized Signature)
Title: Managing Director Date: 29/6/99
By the OEM by ▇▇▇ ▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇
(Authorized Signature)
Title: Chief Executive Date: 29/6/99
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THE FIRST SCHEDULE
Operative Date 30th June 1999
OEM Sales Target: Such sales as result in iOra receiving
(pound)[confidential information filed separately
with the Securities and Exchange Commission] net of
VAT, after deduction of all OEM Discount to which the
OEM is entitled, over the period of one year
commencing on the Operative Date or on an anniversary
thereof.
OEM Discount: [confidential information filed separately with the
Securities and Exchange Commission]% for the
territory of the United Kingdom or any territory
outside the United Kingdom where iOra have no other
OEM agreements in existence one month before the date
of the sale. For any territory outside the United
Kingdom where iOra have other OEM agreements in that
territory then the OEM discount is set to the maximum
OEM Discount for all other OEMs in that territory,
subject to the resulting OEM Discount being no
greater than [confidential information filed
separately with the Securities and Exchange
Commission] % and no less than [confidential
information filed separately with the Securities and
Exchange Commission]%.
Minimum Royalty Rate: (pound)[confidential information filed separately
with the Securities and Exchange Commission] net of
VAT in respect of the total value of all orders
submitted at the same time relating to any one
Customer.
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THE SECOND SCHEDULE
Product Licence Fees:
n SoftCD Publisher (pound)[confidential information filed separately with
the Securities and Exchange Commission]
License to run SoftCD Publisher on a
single machine. The license includes
support for a single publication,
updates to which can be published as
frequently as required.
n SoftCD Publication (pound)[confidential information filed separately with
the Securities and Exchange Commission]
License required for each additional
publication managed by the same
SoftCD Publisher. Additional
publications typically correspond to
different CD-ROM titles. Additional
publication licenses are not required
when distributing a new CD-ROM that
is an update of an existing CD-ROM
publication.
n SoftCD Clients (pound)variable License to use the SoftCD Client to
access any publication from a SoftCD
Publisher. The pricing is dependent
on the volume of clients to whom the
publisher is distributing the
publication
[confidential information filed
separately with the Securities and
Exchange Commission]
Product Support Fees
In addition to purchasing SoftCD Publisher licenses the customer is
recommended to purchase an annual maintenance contract at a cost of 15%
of the total software list price. This maintenance contract provides
the customer with telephone and email support, plus free maintenance
releases for their version of SoftCD for a year.
Where the Software is distributed as part of an Agreed Promotional Project, the
part of the Product Licence Fee attributable to SoftCD(TM) Client shall be
calculated on the basis that the number of SoftCD(TM) Client licences required
is 1% of the expected number of clients to whom the Promotional Material is to
be distributed. Subject to the Minimum Royalty Rate, the OEM will be entitled to
the OEM discount from such Product Licence Fees.
In all other cases where the OEM grants licences under the terms of this
Agreement, subject to the Minimum Royalty Rate, the OEM will be entitled to the
OEM Discount off the list prices for the Product Licence Fee.
In any case where the OEM purports to grant a licence for a SoftCD(TM) product
outside the terms of this Agreement, the OEM will not be entitled in any event
to any discount and will pay the full list price Product Licence Fee.
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In respect of each Product Support Agreement entered by the OEM the OEM will pay
iOra the Product Support Fees less in any event the OEM Discount.
When the OEM provides a Managed Service, the OEM will pay iOra the Product
Licence Fee on behalf of the Customer. Subject to the Minimum Royalty Rate, the
OEM will be entitled to the OEM discount from such Product Licence Fees.
Value Added Tax is also payable, where applicable.
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THE THIRD SCHEDULE
The Territory
The world.
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