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EXHIBIT 10.21
REDACTED
[i2 LOGO] SOFTWARE LICENSE
(THE "AGREEMENT")
Agreement Number:___________
(to be completed by i2)
"Customer" Name: UNION TRANSPORT INCORPORATED
(Registration number: 141257)
9 Columbus Centre
Pelican Drive
Road Town
Tortola
British Virgin Islands
In accordance with the following terms and conditions, i2 Technologies
(Netherlands) ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇▇ ▇/▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
("i2") agrees to license the System (as defined in Section 1) and shall provide
the Maintenance (as defined in Section 3) to Customer.
1. LICENSE GRANT AND USE. Subject to the terms and conditions of this Agreement,
and payment of the appropriate license fees, i2 hereby grants to Customer a
non-exclusive, non-transferable, perpetual license to use the machine readable
version of the software as identified on Addendum A hereto ("Licensed
Software"), Enhancements (defined in Section 3) which i2 delivers to Customer
and the user manuals and technical materials delivered to Customer (the
"Documentation"), (the Licensed Software, Enhancements and Documentation are
collectively referred to herein as the "System") to process its data subject to
the Site Location (defined in Section 1.2), User (defined in Section 1.2),
Server (defined in Section 1.2) and other restrictions, if any, as specified on
the addenda attached to this Agreement. Use beyond the scope of the license
granted therein is subject to additional fees and requires an amendment to this
Agreement signed by both Customer and i2. Customer agrees to allow i2, with
reasonable prior notice, to enter Customer's premises during normal business
hours, or electronically access the System as installed at Customer's location,
to verify Customer's compliance with this Agreement.
1.1 THIRD PARTY SOFTWARE. The Customer acknowledges that the System may include
software which has been provided by third parties ("Third Party Software") and
the licensor of any Third Party Software embedded in the System has a
proprietary interest in such software.
1.2 SITE, SERVER AND USER DEFINITIONS. A site is defined as one of the Site
Locations identified in Addendum A. A server is defined as one of the Servers
identified in Addendum A. Users are defined as individually named users of the
System identified on Addendum A. If not included on Addendum A, Customer shall
provide a list of the Users within thirty (30) days of the effective date of
this Agreement ("Agreement Date") and shall update the list of Users as changes
occur.
1.3 RIGHT TO COPY SYSTEM. Customer may copy the System only in so far as
strictly necessary for the intended use of the System . Customer explicitly
agrees that in the foreseeable future the intended use of the Systems does not
require copies of the Systems other than for archival and/or backup purposes
Should at any time occur that the intended use of the software implies the
necessity of copies for other purposes than archival and/or backup purposes,
Customer shall immediately notify i2 in writing and provide i2 with all
information necessary in order to enable i2 to evaluate the actual necessity of
such copies. Customer shall not otherwise, in whole or in part, sublicense,
copy, rent, loan, transfer, prepare derivatives of the System or any copy of the
System. Customer shall not decompile the System for other purposes than creating
interoperability of the System and Customer shall not create interoperability
without having approached i2 in order to obtain from i2 the necessary
information and data to do so, provided that i2 does not provide Customer with
such information and data within a reasonable time, Customer shall have the
right to decompile the System. Customer shall not modify the System for other
purposes than correcting errors of the System. Customer acknowledges that all
Improvements and Modifications, not made contrary to the terms of this
Agreement, of the System or any part
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thereof (whether developed by i2, Licensor, Customer or any third party acting
on behalf of them at any time during the term of this agreement) shall be deemed
to be part if the System and shall be and remain the sole and exclusive property
of i2, subject to the terms and conditions of this Agreement and any additional
agreements concluded and maintenance contracts permitted by this Agreement. With
respect to all Improvements or Modifications of the System or any part thereof
made by Customer, Customer shall (i) duly assign to i2 all rights in and to such
Improvement and Modifications; and (ii) confirm in writing the grant to i2 of
the right at all times to use, sell or license software including these
Improvements or Modifications to others without payment of royalties and on such
terms and conditions as i2 shall in its sole discretion determine. The parties
agree that should Customer request any substantial modifications or developments
to the Licensed Software, Customer and i2 shall enter into discussions to
negotiate a possible Joint Development Contract, and such contract shall be a
separately executed document.
Customer shall not, in whole or in part, copy the Documentation except as
expressly permitted by this Agreement. Customer shall ensure that the
proprietary, copyright, trademark and trade secret notices contained in or
placed upon the System are affixed to the permitted copy in such manner and
location as to give reasonable notice of the proprietary, copyright, trademark
and trade secret rights of i2 or any third party from whom i2 has received
distribution rights.
1.4 DOCUMENTATION RIGHTS. Subject to the terms and conditions of this Agreement,
Customer shall receive one set of Documentation per Site Location at no
additional cost. Customer may purchase additional sets of Documentation or the
right to reproduce the Documentation for internal use only at the Site Locations
identified in Addendum A. Additional Documentation rights, if any, purchased
under this Agreement are identified in Addendum A.
2. CONFIDENTIALITY. Customer acknowledges that System is proprietary and
confidential material of i2. Customer shall not disclose, provide or otherwise
make available, the System or any other proprietary or confidential material of
i2, in whole or in part, except to Customer's employees or subcontractors in the
scope of their employment. Customer shall take appropriate action to satisfy its
obligations under this Agreement with respect to the use, copying, protection
and security of the System and all other proprietary or confidential material of
i2 or its licensor. Customer shall not disclose the contents of this Agreement
to any third party without the prior written consent of i2. Notwithstanding, i2
agrees that Customer may disclose portions of the confidential information to
Customer's professional advisors, as and when required, provided that such
advisor has executed the standard i2 non-disclosure agreement or an agreement
which contains terms and conditions substantially similar with respect to the
protection and non-disclosure for the confidential information. Customer
acknowledges that in the event of an actual or threatened violation of the
foregoing provisions, i2 will not have an adequate monetary remedy and shall be
entitled to immediate injunctive relief without any requirement to post bond, in
addition to any other available remedies. Any information disclosed by Customer
to i2 and identified by Customer as being confidential shall be subject to the
same degree of security, protection and confidentiality as i2 uses to preserve
information of a similar nature. Nothing in this Paragraph shall preclude i2
from using Customer's name and/or logo in its customer list or providing the i2
user group the name and address of the Customer and the fact that i2 and
Customer have entered into this Agreement. Provisions of this Confidentiality
paragraph shall survive termination or expiration of this Agreement.
3. MAINTENANCE. Maintenance support may be ordered by Customer and upon payment
of Maintenance Fees due, will be provided under i2's Customer Support Programs
policies in effect at the time the services are ordered. Following the first
anniversary of the Agreement date, as long as i2 is offering Maintenance,
Customer may at Customer's option renew Maintenance. In the event Customer
allows Maintenance to lapse, it may thereafter renew such support for the
affected Software by paying, in addition to the then current annual Maintenance
Fee, an amount equal to the aggregate Maintenance Fee that would have been
payable for the affected Software during the period of lapse. i2 agrees that the
Maintenance support will be conducted from the i2 location which is
geographically closest to the Customer location eligible for such Maintenance
support
4. CONSULTING AND TRAINING. i2 shall, at Customer's request, provide consulting
and training services, as described in Addendums B and C hereto ("Consulting and
Training"). The Consulting and Training to be provided herein is designed to
assist Customer in commencing its implementation of the System in Customer's
business. Customer shall reimburse i2 for all reasonable travel, living and
delivery expenses incurred in rendering the Consulting and Training.
5. PAYMENT. Customer shall make all payments in US dollars. Within 30 days after
Agreement Date, Customer shall wire to i2 the Initial Payment as specified on
Addendum A. Customer shall pay all other items as specified
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within the Agreement. All other payments shall be due within thirty (30) days of
receipt by Customer of an invoice or as otherwise specified within this
Agreement. Any amount not paid within fifteen (15) days after the due date shall
bear interest from the due date at the rate of the lower of LIBOR plus 5% or the
highest interest rate permitted by law. All costs of collection, including
reasonable attorney's and expert's fees and costs of court, shall be paid by
Customer.
6. TAXES. License fees and all other amounts mentioned in this Agreement do not
include any sales, property, use, value added or ad valorem taxes, or any other
taxes, based upon this Agreement, all of which shall be paid by Customer. In the
event i2 is required to pay such taxes, Customer shall reimburse i2. Customer
shall withhold foreign withholding taxes only as required by relevant local
country tax law. Customer shall provide i2 with notice of withholding of any
such tax payment. Customer shall not pay for taxes on i2's net income and sales
and use taxes for which Customer has provided a valid tax exemption certificate
within sixty (60) days of the Agreement Date.
7. TERM AND TERMINATION. In addition to i2's termination rights specified
elsewhere in this Agreement, i2 may terminate this Agreement or any license
granted under this Agreement if Customer fails to pay any fees due under this
Agreement and such failure is not cured within thirty (30) days written notice
from i2. i2 or Customer may terminate this Agreement or any license granted
under this Agreement if the other party breaches any other provision of this
Agreement for any reason, which breach has not been cured within thirty (30)
days of written notice. Customer shall be obligated to pay all charges which
have accrued up to the date of termination. Upon termination for any reason,
Customer's license shall be revoked and Customer's rights under the license
shall cease. In the event of such termination, Customer shall immediately
de-install the System and promptly return to i2 the System, any and all
materials related to the System, and all proprietary and confidential
information of i2 held by Customer. Customer shall provide a certificate of
return. Those provisions of this Agreement which by their nature should survive
termination or expiration shall remain in effect in the event of such
termination or expiration. These provisions include, but are not limited to,
Paragraphs 2, 8, 10, 11 and 12.
8. OWNERSHIP. All rights, title, and interest, including trademarks, patent
rights, copyright interests, and other forms of intellectual property, in and to
the System (including any parts or copies thereof) including any and all
Enhancements delivered to Customer herein, and materials or Consulting provided
by i2 are the exclusive property of i2.
9. PUBLICITY. Within thirty (30) days of the Agreement Date, i2 may, at its
option, upon Customers written approval, which will not be unreasonably
withheld, issue a press release to the general public announcing the license of
the System to Customer. In addition, Customer shall permit i2 to bring in
potential i2 customers to Customer's Site Locations, provided such potential
customers are not direct Customer competitors and provided i2 maintains
confidentiality in accordance with Section 2 of this Agreement. The purpose is
for Customer to explain why the System was selected and the System's anticipated
benefits. Customer shall have the sole authority to determine the timing of each
Site Location visit.
10. WARRANTY. i2 warrants to Customer that during the first twelve (12) months
following the Agreement Date ("Warranty Period"), the System furnished by i2
will function substantially in accordance with the Documentation delivered to
Customer under this Agreement. If during the Warranty Period, the System does
not function substantially in accordance with the Documentation, Customer shall
promptly notify i2 in writing of any claimed deficiency. Provided that i2
determines that such deficiency exists and is i2's sole responsibility, i2
shall, within thirty (30) days, (a) correct such deficiency; (b) provide
Customer with a plan acceptable to Customer for correcting the deficiency; or
(c) upon i2's determination that neither (a) nor (b) can be accomplished through
commercially reasonable efforts, then i2 may terminate the license. If this
license is terminated under the provision of this Paragraph, Customer shall
de-install the System and return all copies of the System to i2. Upon return of
the System, i2 shall refund any Software License Fees for the terminated license
paid to i2 under this Agreement.
10.1. WARRANTY LIMITATIONS. i2 MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE. i2 DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET
CUSTOMER'S EXPECTATIONS OTHER THAN THE EXPECTATION THAT THE SOFTWARE
SUBSTANTIALLY FUNCTIONS IN ACCORDANCE WITH THE DOCUMENTATION . UNLESS OTHERWISE
SPECIFIED IN THIS AGREEMENT, I2 DOES NOT WARRANT THAT THE LICENSED SOFTWARE
OPERATES IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CUSTOMER, OR THAT
THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
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11. LIMITATION ON LIABILITY. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE
REGARD FOR CUSTOMER'S BUSINESS RISK ASSOCIATED WITH ITS USE OF LICENSED
SOFTWARE. THEREFORE, IN ANY EVENT i2'S LIABILITY FOR DAMAGES UNDER THIS
AGREEMENT SHALL NOT EXCEED THE SOFTWARE LICENSE FEE PAID BY CUSTOMER FOR THE
SYSTEM. IN NO EVENT SHALL i2 OR THE LICENSOR OF ANY THIRD PARTY SOFTWARE
EMBEDDED IN THE SYSTEM BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES EVEN IF i2 HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.WITH THE SAME UNDERSTANDING, i2 SHALL NOT BE LIABLE
FOR DAMAGES OCCURRING DUE TO OMISSION OR FAILURE OF CUSTOMER TO PERFORM ITS
OBLIGATIONS TO ANY THIRD PARTY.
12. INDEMNIFICATION. i2 represents that, to the best of i2's knowledge, as of
the Agreement Date, it is the owner or licensee of the System, that it has the
right to grant the license set forth in this Agreement, and that Customer's use
of the System in accordance with the terms of this Agreement do not infringe
upon any third party's copyright, patent or trade secret. i2 shall indemnify and
hold Customer harmless against liability to third parties (only for liability
solely the fault of i2) arising from the violation of any third party's trade
secrets, proprietary rights, copyright or patent rights in connection with the
use by Customer of the System (a) as delivered by i2 to Customer herein or as
modified by i2 (but not Customer) and (b) in accordance with the Documentation
and this Agreement, provided that (i) i2 shall have the right to conduct any
defense and/or settlement in any such third party action arising as described
herein, (ii) Customer shall fully cooperate with such defense, and (iii) i2
receives prompt written notice from Customer. This indemnification is limited to
the System delivered to Customer or as modified by i2 and does not cover third
party claims arising from modifications not authorized by i2 or its licensor. i2
shall have no liability for any claim of infringement based on (a) use of other
than a current release of the System if such infringement would have been
avoided by use of a current release, or (b) use or combination of the System
with non i2 software or data if such infringement would have been avoided by the
use of the System without the use of other software or data.
12.1. If a third party's claims substantially interfere with Customer's use of
the System or if i2 believes that a third party claim may substantially
interfere with Customer's use of the System, i2, at its sole discretion, may (a)
replace the System, without additional charge, with a functionally equivalent
and non-infringing product; (b) modify the System to avoid the infringement; (c)
obtain a license for the Customer to continue use of the System and pay any
additional fee required for such license: or (d) if none of the foregoing
alternatives are commercially reasonable, i2 may terminate the license for the
infringing software. If such partial removal by a third party of the right to
use such party's software renders the System inoperable for its intended use,
both Parties have the right to terminate this Agreement. In event of termination
of this Agreement Customer shall de-install the infringing software and return
all copies to i2. Upon return, i2 shall refund to Customer a prorated portion of
the Software License Fee paid for the infringing software. For every year
following the Agreement Date, the refundable portion of the Software License Fee
shall be reduced by 25%. The licensor of any Third Party Software is excluded
from liability under this Agreement and Customer shall look solely to i2 for
liabilities relating to the System.
13. EXPORT OF SYSTEM. Customer agrees that it will not, directly or indirectly,
export or reexport, or knowingly permit the export or reexport of, the System,
or any technical information about the System, to any country for which the
United States Export Administration Act, any regulation thereunder, or any
similar United States law or regulation, requires an export license or other
United States Government approval, unless the appropriate export license or
approval has been obtained.
14. MISCELLANEOUS. This Agreement, including the addendums attached hereto and
made a part hereof, may be modified or amended only by a written instrument
signed by duly authorized representatives of both Customer and i2. Customer may
not, without the prior written consent of i2 , assign or transfer this Agreement
or any obligation incurred herein; provided that any factoring or assignment of
receivables shall not be treated as an assignment for this purpose. Any attempt
to do so in contravention of this Section shall be void and of no force and
effect. i2 may assign its rights and obligations resulting from the present
Contract to i2 Technologies, Inc. or to any other subsidiaries of i2
Technologies, Inc and any other company, corporation or entity fifty (50)
percent or more of whose: (a) shares or other securities or equity interests
entitled to vote for the election of directors or other managing authority; or
(b) interest in the income thereof, is, at the time of determination and only so
long as it remains, held, owned or controlled, directly or indirectly by i2
Technologies, Inc. The pre-printed terms and conditions of any purchase order or
other ordering document issued by Customer in connection with this Agreement
which are in addition to or inconsistent with the terms and conditions of this
Agreement shall not be binding on i2 and shall not be deemed to modify this
Agreement. No term or provision contained herein shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
i2.
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Neither party hereto shall be liable to the other for any failure, delay or
interruption in the performance of any of the terms or conditions contained in
this Agreement due to causes entirely beyond the control of that party,
including, without limiting the generality of the foregoing, strikes, boycotts,
labor disputes, embargoes, acts of God, acts of public enemy, acts of
governmental authority, floods, riots or rebellion. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF SOUTH
AFRICA. SAVE AS OTHERWISE PROVIDED HEREIN OR IN THE ADDENDA, THE PARTIES CONSENT
AND SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE WITWATERSRAND LOCAL DIVISION
OF THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA FOR THE PURPOSE OF ALL OR ANY
LEGAL PROCEEDINGS ARISING FROM OR CONCERNING THIS AGREEMENT. All notices which
either party hereto is required or may desire to give the other herein shall be
given by addressing the communication to the address set forth on the first page
of this Agreement, and shall be given by certified or registered mail. The
effective date of this Agreement shall be the date this Agreement is signed by
i2 ("Agreement Date").
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT, UNDERSTANDING AND
REPRESENTATIONS, EXPRESSED OR IMPLIED, BETWEEN CUSTOMER AND i2 WITH RESPECT TO
THE SYSTEM, CONSULTING AND MAINTENANCE TO BE FURNISHED HEREIN. THIS AGREEMENT
SUPERSEDES ALL PRIOR COMMUNICATIONS BETWEEN THE PARTIES INCLUDING, BUT NOT
LIMITED TO, COMMUNICATIONS WITH i2's SALES REPRESENTATIVES.
IF ANY PORTION OF THIS AGREEMENT IS DETERMINED TO BE OR BECOMES UNENFORCEABLE OR
ILLEGAL, SUCH PORTION SHALL BE DEEMED TO BE ELIMINATED AND THE REMAINDER OF THIS
AGREEMENT SHALL REMAIN IN EFFECT IN ACCORDANCE WITH ITS TERMS AS MODIFIED BY
SUCH DELETION.
AGREEMENT VALID ONLY IF EXECUTED BY CUSTOMER BY: December 15, 1999.
The prices specified in the Agreement assume acceptance by Customer of the terms
and conditions set forth herein.
Accepted: Accepted:
i2 TECHNOLOGIES (Netherlands), B.V. UNION TRANSPORT INCORPORATED
By: /s/ Jan Van den Broeck By: /s/ ▇.▇. ▇▇▇▇▇▇▇
Authorized Signature Authorized Signature
Title: European Controller Title: Chairman
Date: 15 December 1999 Date: 15 December 1999
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SOFTWARE LICENSE
ADDENDUM A (CONTINUES ON NEXT PAGE)
LICENSED SOFTWARE
Customer Name: UNION TRANSPORT INCORPORATED
9 Columbus Centre
Pelican Drive
Road Town
Tortola
British Virgin Islands
ATTACHED TO AND MADE PART OF THE SOFTWARE LICENSE AGREEMENT BETWEEN i2 AND
CUSTOMER.
LICENSED SOFTWARE:
GROUP A PRODUCTS:
RHYTHM Transportation Optimizer
RHYTHM Transportation Manager
RHYTHM Transportation Modeler
RHYTHM Carrier Bid Optimizer
RHYTHM Load Configuration, including RHYTHM Load
Viewer
RHYTHM Global Logistics Manager
RHYTHM Supply Chain Planner, including RHYTHM
Strategy Drive Planner
RHYTHM Rhythm Inventory Planning Extension
RHYTHM Supply Chain Architect
RhythmLlink
RHYTHM Active Data Warehouse including the
Common Data Model
SCOPE OF USE OF GROUP A PRODUCTS:
Notwithstanding anything to the contrary herein, usage of the Licensed Software
shall include in particular but not be limited to the following scope:
- The ability for Customer to set up an unlimited number of servers and any
number of clients in an unlimited number of locations.
- Access to the System parts for an unlimited number of users, system
administrators, technical support staff, or other users.
- Use of the System parts for third parties within the framework of the
definition in accordance with limitations set out below
- Use of the System parts on all hardware platforms supported by i2, with
databases supported by i2, in all languages offered by i2.
- Besides Customer, companies in which Customer holds a direct or indirect
capital share of at least 51% and which are engaged in the same basic
sector (defined as providing logistic and transportation services to third
parties) ("Affiliates"), are also entitled to use the System
LIMITATIONS OF USE OF GROUP A PRODUCTS:
Customer and Affiliates shall only use the System for its own business purposes
and, save as provided herein, shall not allow any third party access to the
System in whole or in part.
Notwithstanding, Customers and Customer clients who are under a contractual
agreement with Customer and who are closely connected to Customer's business
("third party") shall have access to the System:
- unlimited use via installed client or internet browser for calling
up information (read only);
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- via installed client or internet browser for changing information
(write) only if the third party has concluded a written
confidentiality agreement in favour of i2 in respect of all
information relating to the System and then only if the access is
directly connected to the performance of services carried out for
the third party by Customer
- Customer shall be responsible for the configuration of the
relevant, limited user / usage definition in the i2 software and
for ensuring that the third parties adhere to such limited
user/usage requirements.
- Except as specified below Customer and/or Affiliate shall be
responsible for the costs of Third Party Software.
- Use of Licensed Software for third parties is limited to that part
of the third parties' supply chain directly under Customer's
management. Specifically excluded from and not authorized
hereunder is the use of the Licensed Software by Customer for a
third party's operations not outsourced to Customer. Such
non-authorized use shall require: (i) payment of additional
license fees to be negotiated at the time of licensing; and (ii)
acceptance and execution by such third party of the terms and
conditions set forth in i2's standard software license agreement.
The use of Licensed Software and access to it on the part of third parties as
defined above is part of the usage rights granted to Customer hereunder. This
Agreement however, grants no independent rights to third parties for the use of,
or access to the Licensed Software.
Initial Licensed Software fee payable for Group A products as defined above ***.
Should Customer desire to add additional products to the Group A product list,
the parties agree to enter into good faith negotiations to allow for such
additional products.
GROUP B PRODUCTS:
Through the period expiring 31 December 2002, and excluding Group A, Group B
Products shall comprise of all i2 products that may be contained from time to
time on i2's then current price list at the time Customer desires wish to
license such products.
SCOPE AND USE OF GROUP B PRODUCTS:
Any Software License granted for the use of Group B Products is limited to the
following Site Locations, Servers and number of Users and Platform:
Site Locations Servers Number Of Users Platform
-------------- -------------------- ------------------ -------------
Johannesburg 1 per Rhythm Product Unlimited per site All Platforms
Deployed location supported by i2
Los Angeles As above As Above As above
Frankfurt As above As Above As above
▇▇▇▇▇▇ As above As Above As above
London/▇▇▇▇▇▇▇ As above As Above As above
Hong Kong As above As Above As above
New York As above As Above As above
Any information regarding Site Locations, Servers, or number of Users not
available upon Agreement Date will be provided by Customer in writing as soon as
possible.
LIMITATIONS OF USE OF GROUP B PRODUCTS:
The Customer is only entitled to use the Group B products for non commercial
purposes (non direct revenue generating), including but not limited to:
------------------
* INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION FOR CONFIDENTIAL
TREATMENT.
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- Training of Customer's own employees
- Preparation and presentation of conceptual solutions to Customer's
prospective and current customers using the i2 product portfolio and
Customer's services portfolio
- Evaluation of i2 products for use in specific client environments
- Conceptualizing and testing of future Customer service offerings using
the i2 product portfolio
INITIAL LICENSED SOFTWARE FEE PAYABLE FOR GROUP B PRODUCTS AS DEFINED
ABOVE - ***.
i2 agrees Customer shall receive three (3) sets of proprietary Licensed Software
Documentation. Customer may copy the documentation at its own expense as is
necessary for the authorized use of the Licensed Software by Customer. Customer
shall assure that all i2, or third party proprietary legends, copyright, and
trade marks appear on such Customer reproductions as the appear on the original
Documentation furnished by i2 and shall be included in a style and form whose
visual character is equivalent to the copyright notice posted by i2. Customer
understands that all copies, in whole or in part of the Documentation remain the
property of i2. i2 shall have no liability for errors or omissions caused by, or
during such reproduction of the Documentation.
THIRD PARTY SOFTWARE. For a period of three (3) years from the effective date of
this Agreement, any Third Party Software, excluding databases, which is required
to execute the Licensed Software in accordance with its documentation, will be
supplied and paid for by i2. Such Third Party Software will be licensed from the
applicable third parties at the time the products are required by Customer, and
shall be governed by the terms and conditions of this Agreement.
Notwithstanding, to the extent that the cost of the Third Party Software during
such three (3 year period exceeds an amount equivalent to *** of the initial
Licensed Software Fee paid by Customer as set forth herein, then Customer shall
pay all amounts, if any, which are in excess of the aforementioned ***.
With regard to the applicable databases required for the proper use of the
Licensed Software, including but not limited to the RHYTHM Active Data
Warehouse, RHYTHM Global Logistics Manager, and RHYTHM Transportation Manager,
it is expressly agreed that Customer shall acquire the rights of usage for such
databases at its own expense.
TOTAL INITIAL LICENSED SOFTWARE FEE PAYABLE BEING THE SUM OF LICENSE FEES FOR
GROUP A AND GROUP B PRODUCTS AS DEFINED ABOVE ***.
INCREMENTAL SOFTWARE FEE - THROUGH THE PERIOD EXPIRING AT THE END OF THE
CUSTOMER FISCAL YEAR ENDING PRIOR TO 31 DECEMBER 2003 *** of the annual
incremental revenue growth of the Customer calculated as defined below.
ANNUAL MAINTENANCE FEES *
Multi-Site
-----------------------------------------------------
Year 1 Year 2 Year 3 Total - 3 yrs
-----------------------------------------------------
*** *** *** ***
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*INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION FOR CONFIDENTIAL
TREATMENT.
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First Year maintenance and support is calculated at *** of the Initial Software
License fee. This is an amount which due and payable with the initial Software
License fee. With respect of subsequent years the Maintenance fee will be an
amount equivalent to *** for the second year and *** for the third year of
the sum of the Initial Licensed Software fee and the total incremental software
fees paid by the Customer since the Agreement Date and/or due to be paid by the
Customer on the date of maintenance renewal.
PAYMENT SCHEDULE - the Customer shall pay the initial Licensed Software fee as
follows:
*** - upon execution of the Agreement.
*** - ninety (90) days from the Effective Date of the
Agreement.
*** - one hundred eighty days from the Effective Date of
the Agreement.
The incremental software fee shall be calculated based on Customers published
annual audited financial results, And is due and payable within thirty (30) days
after Customer's publication of each year's financial results.
- This incremental software fee shall only become payable once the
Customer's gross revenue in any financial year exceeds a value of ***
If Customer or any of its affiliates and subsidiaries undertake any
mergers or acquisitions with an entity having an annual turnover of 20%
or more of the turnover of Customer during the year the license was
granted, the incremental software revenue will not be automatically
calculated. The Parties will meet to review the potential impact of
such merger and/or acquisition on the value of the license granted
under this Agreement and will negotiate the commensurate additional
license fee in good faith. Should the parties fail to reach agreement
on the additional license fee, then such fee shall be determined by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on the basis set out in the Dispute Resolution clause
set out below. For calculation purposes the turnover for the year in
which the license was granted will be the figures set forth in the
Customer's annual report for the year ending January 31, 2000.
DISPUTE RESOLUTION - Should any dispute arise between the parties as to any
matter arising in relation to the gross revenue of the Customer or the
calculation of the Customer's incremental revenue growth such dispute shall be
referred for determination to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Co and failing them for any
reason to an independent chartered accountant of not less than ten (10) years
standing appointed by the president of the South African Institute of Chartered
Accountants.
WIRING INSTRUCTIONS for Payment of Licence and maintenance fees:
ABN Amro Bank For further credit to:
AMSTERDAM i2 Technologies, (Netherlands B.V.)
The Netherlands Account # 44.55.20.043
Accepted: Accepted:
i2 TECHNOLOGIES (Netherlands), B.V. UNION TRANSPORT INCORPORATED
By: /s/ Jan Van den Broeeck By: /s/ ▇.▇. ▇▇▇▇▇▇▇
Authorized Signature Authorized Signature
------------------
*INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION FOR CONFIDENTIAL
TREATMENT.
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SOFTWARE LICENSE
ADDENDUM B
CONSULTING AND ROLL-OUT SUPPORT
Customer Name: UNION TRANSPORT INCORPORATED
ATTACHED TO AND MADE PART OF THE SOFTWARE LICENSE BETWEEN i2 AND CUSTOMER.
CONSULTING PRICES IN EFFECT AS OF THE AGREEMENT DATE:
INTERNATIONAL RESOURCES:
Group Leader/Director / hour.................................................***
Senior Modeling Specialist / hour............................................***
Modeling Specialist / hour...................................................***
Project Manager / hour.......................................................***
Senior Consultant / hour.....................................................***
Consultant / hour............................................................***
SOUTH AFRICAN BASED RESOURCES:
Consultant / hour............................................................***
Senior Consultant / hour.....................................................***
Project Manager / hour.......................................................***
FOR THE PURPOSE OF THIS SECTION, "SOUTH AFRICAN BASED RESOURCES" SHALL MEAN
EMPLOYEES OF M- STAR SYSTEMS S.A. LIMITED. "INTERNATIONAL BASED RESOURCES" SHALL
MEAN EMPLOYEES OF I2 TECHNOLOGIES, INC. OR ANY OF ITS AFFILIATES OR SUBSIDIARIES
OUTSIDE THE REPUBLIC OF SOUTH AFRICA.
All Consulting prices do not include travel, living, or other incidental
expenses. These expenses shall be reimbursed by Customer. All services are
provided on a time and material basis and are charged portal to portal. Sales
tax and import fees to be borne by Customers. i2 reserves the right to modify
Consulting prices effective upon proper notification to Customer.
Contracting with third party provider for consulting services for implementation
effort will be Customer's responsibility unless indicated below.
ROLL-OUT SUPPORT
i2 shall provide the Customer with a full time Programme Manager, for a period
of 12 months from the agreement date to manage the installation of the Licensed
Software at a 30% discount to the fees normally charged by i2 for such a service
at the time the services are required.
------------------
*INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION FOR CONFIDENTIAL
TREATMENT.
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Training will be in i2 scheduled open courses at the most convenient of i2's
central training facilities offering the required course. Travel, living or
other incidental expenses for attendance of training to be borne by the
Customer.
i2 shall provide the standard product training in respect of the Licensed
Software to personnel of the Customer, for a period of 24 months from the
agreement date, at a price equivalent to 50% of the price normally charged by i2
for such training at the date of the training.
Customer shall pay i2 all amounts owing for training or consulting within 30
days of receipt of i2's invoice in respect of such training or consulting.
Accepted: Accepted:
i2 TECHNOLOGIES (Netherlands), B.V. UNION TRANSPORT INCORPORATED
By: /s/ Jan Van den Broeck By: /s/ ▇.▇. ▇▇▇▇▇▇▇
Authorized Signature Authorized Signature
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SOFTWARE LICENSE
ADDENDUM C
ADDITIONAL TERMS
Customer Name: UNION TRANSPORT INCORPORATED
ATTACHED TO AND MADE PART OF THE SOFTWARE LICENSE BETWEEN i2 AND CUSTOMER.
1. In addition to the Customer's obligations set forth in Section 9 on
this Agreement, the Customer agrees to the following:
- Customer will participate in publishing a press release announcing
the purchase by the Customer of the i2 software licenses set forth
in this Agreement.
- Customer agrees to at least two reference visits/calls per month
for a period of 24 months following the execution of this
Agreement.
- A senior executive from the Customer agrees to present at least
two i2 events over the following twelve months.
2. Year 2000 Compliance
i2 represents to Customer that for a period of one (1) year after January
1, 2000, the System, in the form delivered by i2, will be able to calculate
and compare date data between the twentieth and twenty-first centuries,
without impairment in the function of the System, when used in accordance
with the Documentation provided by i2, but only if all associated products,
such as hardware, software and firmware, used in combinations with the
System properly exchange date and data with the System. In the case of a
breach of this representation, i2 shall correct the System and deliver to
Customer a corrected version of the System. THE FOREGOING IS CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY FOR i2'S BREACH OF THIS PROVISION.
3. Whilst Customer and i2 agrees that the term "Solution Center" is a widely
used generic term used to describe test, evaluation or demonstration
facilities for software solutions, the customer wishes to use this term in
connection with its own business. I2 will communicate this wish to its
sales and marketing personnel and request them not to encourage the use of
this term. Should the customer come up with a specific term, for these
facilities, that can be registered as a trademark i2 will positively
encourage the use of this term solely in connection with Customer's
business amongst its personnel.
4. RIGHT TO SOURCE PROGRAM SOURCE CODE ESCROW. Provided Customer has paid for,
and remained current under the annual Maintenance provisions of this
Agreement without interruption, i2 will escrow the source code for the
Licensed Software with Fort ▇▇▇▇ Escrow Services, Inc. at i2's cost.
Customer shall be responsible for verification, release, and other costs,
if any.
The source code will be released to Customer in the event i2 ceases to
offer Maintenance without assigning an alternate business entity to do so,
or if not so assigned, fails in any material respect to perform its
Maintenance obligations under this Agreement and does not cure such failure
within the cure period set forth herein. Release of the escrowed source
code is dependent upon written authorization of such release by both by i2
and Customer or the receipt by Fort ▇▇▇▇ of a valid court order or
arbitration order.
In the event Fort ▇▇▇▇ Escrow Services Inc. or i2 terminates the Escrow
Agreement, i2 will make all commercially reasonable efforts to promptly
enter into an agreement with an alternative escrow agent of similar nature.
The source code will be provided only for the purpose of supporting the
Licensed Software and may not be copied in whole or in part for production
use. Disclosure of the source code to a third party is prohibited unless
approved by i2 in writing. Such third party must be subject to a written
confidentiality obligation. The use of the source code shall be subject to
the terms and conditions of this Agreement. Customer acknowledges that the
source code for the Licensed Software is a proprietary, confidential trade
secret of i2 and shall not disclose the source code for the Licensed
Software for any purpose other than maintenance and support as defined in
this Agreement and shall keep the source code in a secured area. Should i2
or its
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designee reinstate maintenance services, Customer agrees that it shall
cease use of and return the source code to i2.
Customer has identified ________________________, located at
__________________, whose phone number is ___________________, to be the
individual to be contacted by either i2 or Fort ▇▇▇▇ with regard to escrow
deposits.
Accepted: Accepted:
i2 TECHNOLOGIES (Netherlands), B.V. UNION TRANSPORT INCORPORATED
By: /s/ Jan Van den Broeck By: /s/ ▇.▇. ▇▇▇▇▇▇▇
Authorized Signature Authorized Signature
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