Onelink Corp · 10KSB · For 12/31/02 · EX-10.10
Filed On 4/15/03 3:40pm ET · SEC File 0-50044 · Accession Number 1079974-3-219
As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
4/15/03 One Link 4 Travel Inc 10KSB 12/31/02 23:236 Edgar/Tech Fili..Svcs/FA
Annual Report -- Small Business · Form 10-KSB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10KSB Annual Report for Period Ended 12/31/2002 43 221K
2: EX-3.1 Restated-Amended Cert. of Incorporation 7 34K
3: EX-4 Speciman of Stock Certificate 1 9K
4: EX-10.1 Consulting Services Agreement 14± 64K
5: EX-10.1.1 Restricted Stock Agreement 5 33K
6: EX-10.3 Agreement 19 90K
7: EX-10.2 Warrant to Purchase Common Shares 5 25K
8: EX-10.4 Restricted Stock Purchase Agreement 6 31K
9: EX-10.5 Restricted Stock Purchase Agreement 5 30K
10: EX-10.6 Restricted Stock Purchase Agreement 6 31K
11: EX-10.7 Support Agreement 9 24K
12: EX-10.8 Consultant Agreement 16 50K
13: EX-10.9 Consulting and Services Agreement 7 32K
14: EX-10.10 Services Agreement 21 68K
15: EX-10.10.1 Deed of Variation 4 14K
16: EX-10.11 Service Agreement 23 76K
17: EX-10.12 Services Agreement 23 74K
18: EX-10.13 Finance Director Engagement Letter 5± 30K
19: EX-10.14 Director Corporate Development Engagement Letter 5 30K
20: EX-10.15 Director and Coo Engagement Letter 5 30K
21: EX-10.16 Director Engagement Letter 5 29K
22: EX-21 Subsidiaries 1 6K
23: EX-99 Certification Ceo and Cfo 1 10K
EX-10.10 · Services Agreement
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* Portions of this marked Exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the Commission.
EXHIBIT 10.10
DATED
2002
FS2 LIMITED (1)
and
VIDECOM INTERNATIONAL LIMITED (2)
SERVICES AGREEMENT
THIS AGREEMENT is made the______________ day of _________________________ 2002
PARTIES
1. FS2 LIMITED a company duly existing and registered under the laws of
England with company number 04102584 and whose registered office Carlton
Tower 34 St Pauls Street Leeds LS1 2QB ("FS2");
2. VIDECOM INTERNATIONAL LIMITED a company duly existing and registered under
the laws of England with company number 01928894 and whose registered
office is at Newtown Road Henley-On-Thames Oxon RG9 1HG ("Videcom")
RECITALS
A. Videcom have agreed to provide to FS2 services and products in relation to
the development and operation of the BSP Travellink Application.
B. Videcom and FS2 have agreed to enter into this Agreement in order to record
the terms upon which Videcom will provide the services and products
determined and outlined in this Agreement to FS2
TERMS
1. Definitions
In this Agreement unless inconsistent with the context or otherwise specified
the following definitions will apply:
"Acceptance Date" means the date on which the Software is accepted or deemed to
be accepted by FS2 pursuant to clause 11;
"Acceptance Tests" means the tests described in clause 11;
"Acceptance Notice" means the document provided to Videcom after the successful
testing of each release of the application against the Development
Acceptance Criteria;
"Agreement" means these terms and the Schedules to them;
"BSP Travellink Application" means the internet-based travel application jointly
developed by the Consortium Partners providing distribution and settlement
services to non-air vendors in the travel and tourism industries;
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"Change of Control" means a change in the identity of the shareholders who
control by voting rights the management and operation of a corporate body;
"Change Management" means the procedure for the proper management of changes to
the services provided;
"Confidential Information" means any and all information, in whatever form,
whether tangible or intangible, and whether disclosed before or after this
Agreement, which is now or at any time after the date of this Agreement
owned or controlled by the parties and which is either marked as
"Confidential" or is within the reasonable contemplation of the parties as
being of a confidential nature and which is or has been supplied in
connection with this Agreement;
"Consortium Partners" means Videcom International Limited whose registered
office is at Newtown Road Henley on Thames RG9 1HG United Kingdom; Webb&Flo
Inc. whose registered office is at P.O. Box 4869 420 East Third Street
Whitefish Montana 59937 USA; Thermeon Europe Limited whose registered
office is at Sterling House 27 Hatchlands Road Redhill Surrey RH1 6RW
United Kingdom; and IATA;
"Deliverables" means the Software and the Documentation and all other materials
to be produced or used by Videcom and/or made available to FS2 during the
Project including but not limited to the matters specified in the Project
Definition Paper;
"Development Acceptance Criteria" means the list of elements that each release
of the application will be tested against before acceptance is provided;
"Development Plan" means the documented list of tasks resources and allocations
that will be used to monitor the Projects progress against plan;
"Development Services" means the development of the Software and the System by
Videcom in accordance with the specification document;
"Documentation" means the documentation described in the Project Definition
Paper together with such operating manuals and other technical
specifications and documents necessary to enable FS2 to use and to make any
modifications to the Software;
2
"Equipment" means the computer equipment and operating systems specified in the
Project Definition Paper;
"Exit Management" means the process by which all reasonable assistance will be
provided by Videcom to achieve a transition of the Service to another
service provider;
"First Level Support Services" means the initial handling point of any end-user
enquiry by FS2 and or its appointed representative/s;
"IATA" The International Air Transport Association;
"IDFS" a division of IATA, known as Industry Distribution and Financial
Services;
"Implementation Plan" means the list of tasks that require completion before the
application is considered operational;
"Installation Site" means the location of the premises in which the Service will
be undertaken;
"Intellectual Property" means patents, know-how and techniques (whether or not
confidential and in whatever form held), registered and unregistered
trademarks and service marks, copyright, database rights and in each case
for the full periods of them and all extensions and renewals thereto and
applications for any of them and the right to apply for any of them in any
part of the world and any similar rights;
"Licensed Software" means the existing computer programs listed in [*] to be
supplied by Videcom to FS2 under this Agreement where the Intellectual
Property remains with Videcom;
"Milestone" means as regards any of Videcom's obligations to deliver any of the
Deliverables or to perform any part of the Project the relevant date or
stage set out in the Project Definition Paper or any other agreed date;
"Project Definition Paper" means the document in [*] as amended from time to
time in accordance with this Agreement;
3
"Personnel" means any individual provided by Videcom to perform the services
required;
"Phase" means a phase or stage of the Project as specified in the Project
Definition Paper;
"Price and Payment Plan" means the financial remuneration package as detailed in
[*] of this Agreement;
"Project" means the project for the supply of the Deliverables and the Service
by Videcom under this Agreement;
"Second Level Support Services"
means support provided after the representative of FS2 and/or any other
organisation has provided the First Level Support Services;
"Service" means software development, maintenance, and support, as well as
consulting and other requirements of this Agreement;
"Service Level Agreement"
means the documented levels of services to be mutually agreed and which
once agreed will be deemed incorporated in and subject to the terms and
conditions of this Agreement;
"Software" means the computer programs to be developed by Videcom specifically
for FS2 under this Agreement as briefly described in the Project Definition
Paper;
"Software Maintenance Agreement" means the level of support as determined in
accordance with clause 16 of this Agreement;
"Specification"
means the specification of the Software describing the intended functions
and facilities for the Software as set out in the Project Definition Paper;
"Sub-Contractor" means any person, firm or company (other than Videcom) to whom
is sub-contracted any part of the Project;
"Support Services" means the software support and infrastructure services
specified in the Service Level Agreement which are to be provided by
Videcom to FS2;
"System" means the hardware software infrastructure and intellectual property
that combine to provide the BSP Travellink Application;
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"Term" means the period indicated in clause 30;
"Territory" means the World;
"Third Party" means any other organisation with whom Videcom and/or the
Consortium Partners must cooperate.
2. Conditions
2.1 This Agreement is conditional upon additional funding of not less than
US$1,500,000 being made available to FS2 by not later than 30 June 2002.
2.2 In the event that such additional funding is not made available to FS2 by
30 June 2002 then this Agreement shall at the option of either party be
terminable on 7 days written notice at which time subject to the provisions
of this Agreement all obligations of the parties to each other shall cease
forthwith.
3. Duties and obligations of Videcom
In addition to the responsibilities of Videcom detailed in clause 8:
3.1 Videcom agrees to design and write the Software and Documentation and
provide the Service all as described in the Project Definition Paper and in
accordance with and subject to the terms of this Agreement.
3.2 Videcom agrees to supply Licensed Software to provide part of the Service.
3.3 Videcom acknowledges that the Software is to be used by Videcom in
conjunction with the Equipment. Videcom acknowledges that it has been
supplied with sufficient information about the Specification and the
Equipment and that it has made all appropriate enquiries to enable it to
undertake the Project in accordance with this Agreement. Videcom will
neither be entitled to any payment nor excused from any obligation or
liability under this Agreement because of any misinterpretation by FS2 of
any fact relating to the functions, facilities and capabilities of the
Equipment or any part of them. Videcom will promptly bring to the attention
of FS2's Project Representative any matter which is not adequately
specified or defined in the Specification and any other relevant
specification or document.
3.4 Videcom may employ Sub-Contractors for carrying out any part of the
Project. Videcom will not be relieved of any of its obligations under this
Agreement by entering into any sub-contract for the performance of any part
of the Project and will at all times remain primarily responsible and
liable to FS2 for the conduct of the Sub-Contractors.
5
3.5 Videcom shall carry out the Project with reasonable care and skill in a
professional and businesslike manner and in accordance with accepted
industry practices using appropriately qualified and experienced Personnel.
In particular, but not by limitation, Videcom will use all reasonable
endeavours to achieve completion of each Phase of the Project by the
relevant Milestone in the Project Definition Paper.
3.6 Videcom shall be entitled in relation to the Software to do the acts in the
United Kingdom restricted by copyright by virtue of the Copyright and
Designs Patents Act 1988 solely insofar as this is necessary to enable
Videcom to perform its obligations under the Project. All Intellectual
Property in the Software and any other Intellectual Property of FS2
disclosed during or as a consequence of the Project shall at all times
remain vested in FS2.
3.7 Videcom will provide on going support and maintenance of the BSP Travellink
Application in accordance with the Service Level Agreement once it is moved
from pre-implementation to an operational environment.
3.8 Videcom will prepare, provide to FS2 and maintain a set of initial
technical and functional specifications in electronic format and in the
English language within 60 days of the date of this Agreement.
3.9 Videcom will use its best endeavours to achieve the objectives laid out in
this Agreement and not to unreasonably prevent conclusion of any
outstanding actions or items.
3.10 Videcom shall deposit the current version of the BSP Travellink Application
with a recognised escrow agent. The costs associated with the escrow agent
shall be met by FS2.
4. Duties and obligations of FS2
With effect from the date of this Agreement and during the Term, FS2 will:
4.1 make available to Videcom all staff reasonably required to assist in the
provision of the Service;
4.2 secure necessary data provision before during and after implementation;
4.3 provide such office facilities as may be reasonably required for the
purposes of allowing Videcom to fulfil its obligations under this
Agreement;
4.4 provide such information relating to IDFS' business as Videcom may
reasonably require to allow Videcom fulfil its obligations under this
Agreement;
4.5 actively promote the BSP Travellink Application with the objective of
deploying it on a world-wide basis without limitation to the travel and
associated industries;
4.6 make payments to Videcom for Software, Licensed Software and other
Deliverables as specified in [*];
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4.7 reimburse reasonable travel and accommodation expenses to Videcom which
shall not be incurred without the prior written consent of FS2.
5. Mutual obligations
The parties will mutually co-operate to identify the best technology and
means to provide the BSP Travellink Application in the most effective and
efficient manner, not limited to technology platform or software and the
parties will co-operate with all other appointed service providers in a
professional and businesslike manner.
6. Acknowledgements
6.1 Videcom acknowledges it has been supplied with sufficient information about
the business requirements of FS2 to enable it to provide and perform the
Service required.
6.2 Videcom will not be entitled to any additional payment nor excused from any
liability under this Agreement as a consequence of any misinterpretation of
any matter or fact based on the Specification or the Project Definition
Paper or other technical requirements.
6.3 FS2 acknowledges that Licensed Software and all modifications to the
Licensed Software provided as part of the Service shall remain the sole and
exclusive property of Videcom and that title to the Licensed Software will
at all times remain vested in Videcom. FS2's only interest in the Licensed
Software will be that of a conditional licensee.
6.4 Upon completion and acceptance of the Software in accordance with clause
11, Videcom will conditionally licence the Licensed Software to FS2 in
connection only with the BSP Travellink Application for the duration of the
Term.
6.5 FS2 may not use the Licensed Software in any other manner or with any third
party. FS2 shall not permit, authorise or enter into any sub-licence, or
other agreements with any third party for the use, distribution, sale or
other transfer of the Licensed Software.
6.6 The licence referred to in this clauses 6 may be terminated by Videcom upon
12 months written notice to FS2 in the event that FS2 is guilty of a
material breach of the terms of the licence which breach if capable of
remedy is not remedied by FS2 within 28 days of receipt in writing of
notice of such breach.
6.7 Videcom shall not be prevented or inhibited from developing and selling
other software products of a similar nature to the Software provided always
that the development and sale of such software products does not directly
compete with the BSP Travellink Application.
7. Development
7.1 FS2 will allow Videcom to provide a quote for the provision of any
Development Services to be undertaken by Videcom, before seeking any offer
for the provision of such services.
7
7.2 If the parties agree that Videcom will provide any Development Services
Videcom will deliver and perform the Development Services with all
reasonable skills speed accuracy and due diligence in accordance with the
Development Plan and delivery date(s) specified.
7.3 Videcom will demonstrate to FS2 that any enhancements or modifications to
the BSP Travellink Application undertaken by Videcom as part of the
Development Services will perform in all material aspects with Development
Acceptance Criteria specified in the Development Plan.
7.4 The enhancements or modifications to the BSP Travellink Application
undertaken by Videcom as part of the Development Services will, immediately
following issue of an Acceptance Notice by FS2 be deemed included in and
subject to the terms and conditions of this Agreement for the purpose of
the provision of the Support Services.
7.5 Notwithstanding any other provision in this Agreement, Videcom will not be
obliged to provide Support Services in relation to any modifications,
enhancements or developments to the BSP Travellink Application which are
undertaken by FS2 or any Third Party.
8. Services to be provided by Videcom
Videcom hereby undertakes to FS2 to provide the following services:
8.1 For the development of the BSP Travellink Hub Videcom will:
8.1.1 review overall systems architecture, including both logical and
physical elements, and recommend solutions as necessary;
8.1.2 define communications specification based upon valuation of
available protocols;
8.1.3 [*]
8.1.3.1 [*]
8.1.3.2 [*]
8.1.3.3 [*]
8.1.3.4 [*]
8.1.3.5 [*]
8.1.3.6 [*]
8.1.4 [*]
8.1.4.1 [*]
8
8.1.4.2 [*]
8.1.5 [*]
8.1.6 [*]
8.1.6.1 [*]
8.1.6.2 [*]
8.2 For the development of the Vendor Link facility Videcom will:
8.2.1 support the BSP Travellink vendor system;
8.2.2 provide host/target system reformatting to be further defined;
8.2.3 [*]
8.2.4 ensure liaison and co-operation between Consortium Partners;
8.2.5identify any potential weaknesses in the overall BSP Travellink
architecture and take action accordingly;
8.2.6ensure the technology supporting BSP Travellink is as up to date as
possible and benefits from maximum efficiency and effectiveness, and
takes into account changes in the relevant technologies;
8.2.7 provide consulting services on an ad hoc basis;
8.2.8participate in regular multi-party or consortium meetings throughout
the lifecycle of the product;
8.2.9provide Project Management including use of Resource Management and
Tracking, budget control and project life cycle techniques; and
8.2.10 provide second line support for the network and system
administrators and conform to the elements of the Service Level
Agreement, including uptime, reliability and performance and
penalties for failure to achieve.
9. Change control
9.1 At any time during the Term FS2 may in writing request changes to any part
of the Project.
9.2 Videcom will evaluate any such request and advise FS2 in writing of whether
it is prepared to implement the requested change and of any effect such
change may have on this Agreement within 10 working days of its receipt of
FS2's request.
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9.3 Should FS2 wish to proceed with the proposed change, it will instruct
Videcom in writing of its wish after receipt of Videcom's response given
pursuant to clause 9.2. Those parts of this Agreement affected by the
change will then be deemed to be modified accordingly.
9.4 Until any change is formally agreed between Videcom and FS2 Videcom will
continue to perform the Project as if the change had not been proposed.
9.5 [*]
9.6 The Change Management process will be documented in a jointly agreed and
revised Service Level Agreement.
10. Contract Management
10.1 Each party will appoint a senior member of its staff (`the Project
Representative') to act as the principal point of contact for the purposes
of this Agreement.
10.2 Videcom will provide written progress reports at such frequencies as will
be agreed from time to time, but no less frequently than once per calendar
month.
10.3 Progress meetings to discuss progress reports and other relevant issues
will be held weekly or at such other frequencies as agreed by the parties.
Such meetings may be conducted by telephone or by the use of net meeting
software. Such meetings may include the Consortium Partners.
10.4 Minutes of these meetings will be taken by Videcom and sent to FS2 within 5
working days of the meeting for FS2's approval. Only minutes so approved
will be treated as an accurate record of such meetings.
10.5 The Project Representatives will identify and review any failures by
Videcom to comply with its obligations under this Agreement and will
formulate a plan to remedy such failures. Progress in implementing such
plan will be included on the agenda for the next following review session.
10.6 Any critical unresolved issue identified by the Project Representative will
be notified to a director appointed for the purpose by each of the parties
to this Agreement within one week of identification for resolution.
11. Acceptance Procedure
11.1 Videcom will prepare a test specification setting out the criteria and
procedures for the acceptance of the Software (`the Acceptance
Specification') which is suitable to demonstrate that the Software complies
with and performs in accordance with the Specification and is otherwise
properly functioning and fit for licensing and use by end users.
10
11.2 If required by FS2, and subject to agreement between the parties as to the
associated costs and expenses, Videcom will have no less than 2 suitably
experienced Personnel involved with the development of the Software
available on call at FS2's request to attend the Installation Site to
assist FS2 and provide advice on matters relating to the conduct of the
Acceptance Tests.
11.3 If any part of the Software fails to pass its applicable Acceptance Tests
Videcom will be given such time and facilities as are reasonable in all the
circumstances to rectify such part of the Software and repeat those
Acceptance Tests applying to such part within a reasonable time but in any
event not later than 45 days after the failure to pass the applicable
Acceptance Tests.
11.4 If the Software or any part of it being tested fails to pass its applicable
Acceptance Tests after two repeat Acceptance Tests are conducted then FS2
may by written notice to Videcom elect at its option:
11.4.1 [*];
11.4.2 to accept the Software or part (the abatement being such amount as
taking into account the circumstances is reasonable); or
11.4.3 to reject the entire Software in which case FS2 may terminate this
Agreement at any time after rejection on written notice with immediate
effect.
11.5 The issue of any interim Acceptance Notice on successful completion of the
Acceptance Tests for any particular part of the Software will not affect
FS2's right to reject any accepted part if any later part of the Software
fails to pass the Acceptance Tests.
11.6 Acceptance of the Software will occur or be deemed to occur on the earliest
of either:
11.6.1 the date of successful completion of all stages of the Acceptance
Tests as acknowledged by FS2 signing an Acceptance Notice; or
11.6.2 the date the Software is first put into operational use by FS2.
11.7 The Acceptance Test procedure will be documented in the jointly agreed
Service Level Agreement.
12. Inspection
12.1 Subject to providing Videcom with reasonable prior written notice, FS2 will
be entitled at all times during the Term to inspect and examine the
development techniques and workmanship being used in the performance of the
Services. Such inspection and examination will not be deemed to relieve
Videcom from any of its obligations under this Agreement.
11
12.2 Videcom will permit FS2 or a Third Party, not in direct competition with
Videcom, of its choice to carry out audits at Videcom's premises from which
the Service is provided in order to check processes defined under the
provision of Service. The FS2 Project Representative will give not less
than forty-eight (48) hours written notice to Videcom before commencing
such audit.
13. Payment Terms
13.1 Subject to compliance by Videcom with the obligations referred to in this
Agreement FS2 shall make payment to Videcom in accordance with the
provisions of [*].
13.2 Videcom shall be entitled to subscribe for 1% of the initial authorised
share capital of FS2 at par value.
13.3 In addition to the payments referred to in clause 13.1 Videcom shall
receive the licence and incentive fees referred to in [*].
14. Ownership-rights
14.1 All right, title and interest and Intellectual Property in the Deliverables
shall at all times vest in FS2 unless Videcom have used pre-existing
software or provided Licensed Software in which Videcom already holds
intellectual property rights. Both parties to this Agreement agree to
identify and record the respective Intellectual Property rights within 90
days from the date of this Agreement.
14.2 Insofar as it may be necessary to give effect to the provisions of
sub-clause 14.1 Videcom hereby assigns with full title guarantee all
present and future Intellectual Property it may now or in the future own in
the Deliverables.
14.3 Videcom unconditionally, irrevocably and in perpetuity waives all moral and
author's rights and rights of a similar nature under the laws of any
jurisdiction in respect of the Deliverables and any other copyright arising
as a consequence of the Project and will procure such a waiver on the same
terms from each member of the Personnel.
14.4 At any time at the request of FS2, Videcom will at its expense do all such
things and sign all documents or instruments reasonably necessary to enable
FS2 to obtain its rights under sub-clauses 14.1 to 14.3
15. Warranties
15.1 Videcom warrants and undertakes:
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15.1.1 that the Deliverables shall be original works and shall not infringe
the Intellectual Property or other rights of any third party;
15.1.2 that the Service will meet the base specification and/or subsequent
specification and the Service Level Agreement;
15.1.3 that it will use its best endeavours in accordance with acceptable
computing practice to make good with all possible speed at its own
expense any breach of the warranties referred to in sub-clause 15.1 in
any portion of the Software and/or System and/or Service which may be
identified in the Acceptance Notice and/or is notified to Videcom
during a twelve (12) month period after the commencement of such
Service;
15.1.4 that it is not aware as at the date of this Agreement of anything
which might or will adversely affect its ability to perform its
obligations under this Agreement;
15.1.5 that as at the Acceptance Date:
15.1.5.1 the Software will run on the Equipment;
15.1.5.2 the design of the Software will be suitable to fulfil the
matters specified in the Project Definition Paper and will be
properly functioning and fit for licensing to end users and the
Software will perform and function in accordance with the
Specification;
15.1.6 that the Documentation will enable suitably qualified personnel of
FS2 to make proper use of the Software;
15.1.7 that the Deliverables will conform to all applicable health and
safety regulations and other applicable laws existing at the date of
this Agreement;
15.1.8 that it has the power to enter into this Agreement and has obtained
all necessary approvals to do so;
15.1.9 that it will use all reasonable endeavours to ensure that the
Software supplied and installed on the Equipment will be free of
computer viruses and will have undergone rigorous virus checking
procedures in line with current industry best practice and will
provide details to FS2 of such checking procedures;
15.1.10 that the Software and the Equipment will comply with all statutory
requirements and regulations and all codes of conduct relating thereto
including all relevant British standards (or equivalent) agreed in
writing by FS2;
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15.1.11 that the Software will be free from material errors defects or
faults (latent or otherwise) including (without limitation) design
faults or software program faults the Software will meet and satisfy
the business requirements of FS2 and the Software will provide the
facilities functions and standards of performance set out in the
Project Definition Paper for the duration of the Term provided that
all sums due from FS2 to Videcom pursuant to this Agreement have been
paid in a timely manner.
15.2 Without prejudice to any other rights and remedies of FS2 provided that all
sums due from FS2 to Videcom pursuant to this Agreement have been paid in a
timely manner Videcom will be responsible, without charge to FS2, for
rectifying within a reasonable period of time by repair, or at Videcom's
option by supply of a replacement, any defect which under proper use, care
and maintenance appears in the Deliverables for the duration of the Term.
16. Software Maintenance
The parties will enter into the Software Maintenance Agreement within 90 days of
the date of this Agreement.
17. Indemnity
17.1 Videcom will indemnify FS2 against all costs, claims, demands, expenses and
liabilities to the extent the Deliverables or any of them infringe the
Intellectual Property rights of any third party.
17.2 If either FS2's possession or use of the Deliverables is held by a court of
competent jurisdiction to constitute an infringement of a third party's
Intellectual Property rights or Videcom is advised by legal counsel that
such possession or use is likely to constitute such an infringement,
Videcom will without prejudice to any other rights and remedies of FS2
promptly and at its own expense and at FS2s option:
17.2.1 obtain for FS2 the right to continue using the Deliverables; or
17.2.2 modify or replace the Deliverables (without detracting from the
functionality specified in the Specification) so as to avoid
infringement.
17.3 Whenever Videcom is required to indemnify FS2 under the terms of this
Agreement the indemnity, provided that all sums due from FS2 to Videcom
pursuant to this Agreement have been paid in a timely manner, is
conditional upon FS2 (i) notifying Videcom promptly upon becoming aware of
any matter or claim to which the indemnity relates; (ii) not making any
admission or settlement in respect of such matter or claim without the
prior consent of Videcom (such consent not to be unreasonably withheld or
delayed) provided that if FS2 intends to make any admission or settlement
on grounds that Videcom has unreasonably withheld or delayed its consent it
shall first give Videcom at least 21 days prior notice of that intention;
and (iii) allowing Videcom, where appropriate to have conduct of
negotiations and/or proceedings relating to such matter or claim or, where
it is not appropriate for Videcom to have conduct of such negotiations
and/or proceedings, FS2 complying with Videcom's reasonable request in the
conduct of any such negotiations and/or proceedings.
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18. Confidentiality
18.1 For the purposes of this clause "Confidential Information" means all
information (whether commercial, financial, technical or otherwise)
relating to the disclosing party, its Sub-Contractors, other customers and
suppliers, disclosed to or otherwise obtained by the recipient party under
or in connection with the Project and this Agreement and which is
designated as being confidential or which is by its nature clearly
confidential. For the avoidance of doubt the source code of the Software is
the Confidential Information of FS2.
18.2 Each party undertakes in respect of Confidential Information for which it
is the recipient:
18.2.1 to treat such information as confidential;
18.2.2 not without the disclosing party's prior written consent to
communicate or disclose any part of such information to any person
except:
18.2.2.1 only to those employees, agents, Sub-Contractors and other
suppliers on a need to know basis who are directly involved in
the Project;
18.2.2.2 the recipient's auditors, professional advisers and any other
persons or bodies having a legal right or duty to have access to
or knowledge of the Confidential Information in connection with
the business of the recipient.
18.2.3 to ensure that all persons and bodies mentioned in clause 18.2.2 are
made aware, prior to disclosure, of the confidential nature of the
Confidential Information and that they owe a duty of confidence to the
disclosing party and to use all reasonable endeavours to ensure that
such persons and bodies comply with the provisions of this clause;
18.2.4 not to use or circulate such information within its own organisation
except to the extent necessary for the purposes of the Project.
18.3 The obligations in this clause will not apply to any Confidential
Information:
18.3.1 in the recipient's possession (with full right to disclose) before
receiving it; or
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18.3.2 which is or becomes public knowledge other than by breach of this
clause; or
18.3.3 independently developed by the recipient without access to or use of
the Confidential Information; or
18.3.4 lawfully received from a third party (with full right to disclose).
18.4 Nothing in this Agreement will prevent Videcom at any time from using for
any purpose it thinks fit any know-how or experience including programming
tools, skill and techniques, gained or arising from the performance of the
Project, subject always to complying with the obligations in this clause in
respect of the Confidential Information of FS2.
19. Personnel
19.1 Videcom and FS2 will use all reasonable endeavours to maintain adequate
skill levels in respect of the Personnel for the duration of the Term.
19.2 Videcom will ensure that all Personnel comply with all relevant safety
security and on site regulations specified in writing from time to time by
FS2 for Personnel working on FS2's premises.
19.3 FS2 and Videcom shall ensure that no Intellectual Property in the
Deliverables will vest in any Personnel.
20. Liability and Insurance
20.1 Subject to the provisions of clauses 15.1.1, 17 and 18 neither party shall
be liable to the other for any indirect or consequential loss or damage
(including loss of profit business or anticipated savings) however arising
regardless of whether such losses were foreseeable. Nothing in this
Agreement limits liability for death or personal injury caused by
negligence.
20.2 Videcom will maintain in force at all times insurance with a reputable
insurance company covering third party liability and employer's liability
and its other liabilities under this Agreement of at least $1,000,000 per
occurrence or series of connected occurrences.
21. Termination
21.1 Either party may terminate this Agreement with immediate effect on written
notice:
21.1.1 if the other party ceases or threatens to cease to carry on its
business;
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21.1.2 if a receiver, administrator or similar officer is appointed over
all or any part of the assets or undertaking of the other party;
21.1.3 if the other party makes any arrangement for the benefit of its
creditors;
21.1.4 if the other party goes into liquidation save for the purposes of a
genuine amalgamation or reconstruction; or
21.1.5 if either party is guilty of a material breach of the terms of this
Agreement which breach if capable of remedy is not remedied by the
party in breach within 28 days of receipt in writing of notice of such
breach.
21.2 Upon termination of this Agreement for whatever cause, Videcom shall
immediately deliver to FS2 any Confidential Information belonging to FS2 as
well as all Deliverables including the source code and object code of the
Software or such part thereof as may have been created following completion
of all outstanding payments due to Videcom.
21.3 Upon termination of this Agreement for whatever cause, FS2 shall
immediately deliver to Videcom any Confidential Information belonging to
Videcom as well as all the Licensed Software including the object code of
the Licensed Software.
21.4 Upon termination of this Agreement for whatever cause, a period of not less
than 12 months will be agreed between parties to allow for the proper Exit
Management of this Agreement and the parties shall use their best
endeavours to agree on the purchase of a perpetual license by FS2 for the
use of any Licensed Software required to run the BSP Travellink
Application.
21.5 Termination of this Agreement will not affect any rights of the parties
accrued to them up to the date of termination, or any rights and
obligations which are intended to survive termination.
22. Force Majeure
22.1 Neither party will be liable for any delay in performing or failure to
perform any of its obligations under this Agreement caused by events beyond
its reasonable control ("Force Majeure Event").
22.2 The party claiming the Force Majeure Event will promptly notify the other
in writing of the reasons for the delay or stoppage (and the likely
duration) and will take all reasonable steps to overcome the delay or
stoppage.
22.3 If that party has complied with clause 22.2 its performance under this
Agreement will be suspended for the period that the Force Majeure Event
continues, and the party will have an extension of time for performance
which is reasonable and in any event equal to the period of delay or
stoppage. As regards such delay or stoppage:
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22.3.1 any costs arising from the delay or stoppage will be borne by the
party incurring those costs;
22.3.2 either party may, if the delay or stoppage continues for more than
60 continuous days, terminate this Agreement with immediate effect on
giving written notice to the other and neither party will be liable to
the other for such termination; and
22.3.3 the party claiming the Force Majeure Event will take all necessary
steps to bring the Force Majeure Event to a close or to find a
solution by which the Agreement may be performed despite the Force
Majeure Event.
23. Notices
All notices to be given under this Agreement will be in writing and will be sent
to the address of the recipient shown on the front page of this Agreement or any
other address the recipient may designate by notice given in accordance with
this clause. Notices may be delivered personally, by first class pre-paid letter
or facsimile transmission. Notices will be deemed to have been received:
23.1 by hand delivery-at the time of delivery;
23.2 by first class post-48 hours after the date of mailing;
23.3 by facsimile transmission-immediately on transmission provided a
confirmatory copy is sent by first class pre-paid post or by hand by the
end of the next business day.
24. Waiver
No delay or failure by either party to exercise any of its powers, rights or
remedies under this Agreement will operate as a waiver of them nor will any
single or partial exercise of any such powers, rights or remedies preclude any
other or further exercise of them. Any waiver to be effective must be in
writing. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law.
25. Severability
If any part of this Agreement is found by a court of competent jurisdiction or
other competent authority to be invalid, unlawful or unenforceable then such
part will be severed from the remainder of this Agreement which will continue to
be valid and enforceable to the fullest extent permitted by law.
26. Order of precedence
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In the event of any conflict or inconsistency between the various documents
forming this Agreement the body of this Agreement shall take precedence over the
Schedules.
27. Whole agreement
27.1 This Agreement is the complete and exclusive statement of the agreement
between the parties relating to the subject matter of this Agreement and
supersedes all previous communications, representations and other
arrangements, written or oral.
27.2 Except as otherwise permitted by this Agreement, no change to its terms
will be effective unless it is in writing and signed by persons authorised
on behalf of both parties.
28. Third Party Rights
No one who is not a party to this Agreement is intended to or may benefit from
its terms because of the Contracts (Rights of Third Parties) Act 1999.
29. Assignment
Either party may transfer or assign this Agreement with the prior written
consent of the other party such consent not to be unreasonably withheld.
30. Term
This Agreement shall commence on the date of signature and continue for a period
of five years with either party having an option to renew for a further five
years subject to the terms of this Agreement.
31. Governing law
This Agreement will be construed in accordance with and governed by the law of
England and Wales and each party agrees to submit to the non-exclusive
jurisdiction of the courts of England and Wales. Headings have been included for
convenience only and will not be used in construing any provision in this
Agreement.
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AS WITNESS the hands of the parties to this Agreement or their duly authorised
representatives on the date written on page 1 of this Agreement
EXECUTED AS A DEED by )
FS2 Limited acting by:- )
Director
Director/Secretary
EXECUTED AS A DEED by )
Videcom International Limited acting by:- )
Director
Director/Secretary
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