(2) MillennEcom Ltd., Citywest Business Campus, Lake Drive 3010, Saggart, Co. Dublin, Ireland ("Licensor") of MCOM(tm)
WHEREAS:
Licensee wishes to take and Licensor wishes to grant a License of computer Software.
IT IS AGREED:-
1. Definitions and Interpretation
1.1 In this Agreement, unless there is something in the subject or context inconsistent with this meaning, the following words and phrases shall have the meanings given to them below.
1.1.1 "Acceptance Date" means the date upon which the Software is accepted as set out in Clause 5.4.
1.1.2 "Acceptance Tests" means Licensee's acceptance test(s) or such other test(s) as Licensee and the Licensor shall agree, the purpose of such tests being to establish whether the Software meets its published specification or such other specification as may have been agreed between the parties.
1.1.3 "Designated Equipment" means in relation to each item of Software, the computer equipment designated in the License Order for that Software.
1.1.3.1 "Intellectual Property Rights" means copyrights, registered designs, patents, trade marks, design rights (whether registered or unregistered), semiconductor topography rights, applications for any of the above, rights to extract data, trade secrets, rights of confidence and all other similar rights recognised in any part of the world.
1.1.4 "Licence Order" means an order for Software placed by Licensee substantially in the form of Exhibit A hereto and accepted by the Licensor.
1.1.5 "Licensor's Test" means the Licensor's standard diagnostic test.
1.1.6 "Owner" means the legal entity in which the copyright to the Software is vested.
1.1.7 "Software" means an item of software that is specified in a Licence Order.
1.1.8 "Software Maintenance" means the maintenance services available to the Licensee as detailed in Exhibit B.
1.1.9 "Subsidiary" has the meaning given to it by section 736 of the Companies Act 1985 (as amended by the Companies Act 1989).
1.1.10 "Warranty" means each or all of the warranties set out in Clause 10, as the context admits.
1.2 Any reference to an Act of Parliament shall include any modification, extension or re-enactment of that Act for the time being in force and shall also include all instruments, orders, plans, regulations, permissions and directions for the time being made, issued or given under such Act or deriving validity from it;
1.2.1 The titles or headings appearing in this Agreement are for reference only and shall not affect the construction and interpretation of the Agreement;
1.2.2 Where the context so admits, "Licensee" shall include its subsidiaries.
2. Licence
2.1 From the date of delivery by Licensor to Licensee, the Licensor grants to Licensee and its subsidiaries a non-exclusive, non-transferable, perpetual license (without rights to sub-licence) to use each item of Software ordered by Licensee in a License Order on the Designated Equipment or, in the case of emergency or testing, on other computer equipment, for the term set out in Clause 8 and subject to the terms and conditions of this Agreement.
2.2 Licensee may be charged an additional license fee if Licensee upgrades the Designated Equipment or changes the hardware platform on which the Software operates.
2.3 The Licensee may copy the Software for back-up purposes provided it keeps the copies under safe custody.
3. Licence Orders
The terms and conditions of this Agreement shall govern each Licence Order.
4. Title
Title to, ownership of and all Intellectual Property Rights in each item of Software and all copies thereof is reserved to and will at all times remain with Licensor.
5. Delivery, Installation and Acceptance Tests
5.1 Software shall be delivered in good working order for installation on the Designated Equipment by Licensee in accordance with the schedule agreed between Licensee and Licensor.
5.2 Software will be deemed accepted once it is installed, other than for testing purposes, on the Designated Equipment and in any event once the software is used in a live environment.
5.3 The Acceptance Tests shall establish whether the Software meets its published specification, or such other specification as may be agreed.
5.4 The Licensee will use its reasonable efforts to complete its Acceptance Tests as quickly as possible following installation of the Software and, in any event, shall complete its testing and advise the Licensor of the results within 30 days of installation.
5.5 The date following that on which the software has passed the Acceptance Tests and Licensee has notified Licensor thereof shall be the Acceptance Date.
5.6 In the event the Software fails the Acceptance Tests, the Licensor shall at its option:
5.6.1 Within a reasonable time replace or modify the software to enable Software to pass further Acceptance Tests;
5.6.2 Rescind the License Order in respect of the item of Software which has failed Acceptance Tests; or
5.6.3 Rescind this Agreement and repay to the Licensee any monies paid for the Software, which has not been accepted.
6. Software Maintenance
6.1 Maintenance Services are provided as specified in Exhibit B.
6.2 Maintenance Services only covers the Software as licensed by the Licensor and any updates or new releases as licensed to the Licensee and for which a license fee has been paid in full. Licensor guarantees to provide Maintenance Services for the current release and the immediate prior two releases of the Software. In the event of the Maintenance Services of any release being discontinued the Licensor will give three months notice of such discontinuance to the Licensee.
6.3 Any modifications or changes made to the Software by the Licensee or by any third party without the consent of the Licensor are not covered by Maintenance Services.
6.4 The Licensor may make alterations to the Software at the request of the Licensee. Such alterations will be made and charged on a time and materials basis at the Licensor's rates then in effect. Any subsequent increases in maintenance as a result of the alterations will be payable on the first day of the next month following the date the alterations take effect.
6.5 The Licensee may cancel Maintenance Services upon 30 days prior written notice to the Licensor, however any fees already paid in advance to the Licensor will not be refundable. The Licensee may subsequently re-subscribe for Maintenance Services which will be chargeable at 15% of the then Licensee fee of the Software plus any fees that would have been due in the intervening period from the date of cancellation to the date of re-subscription.
7. Licensee's Responsibilities
7.1 Licensee will not, without permission of Licensor, decompile, reverse engineer, disassemble the program code or any part of the Software or modify any portion of the Software except as permitted by law.
7.2 Licensee will assure the proper use, management and supervision of the Software and of any application programs, audit controls, operating methods and office procedures necessary for the intended use thereof.
7.3 Licensee will properly reproduce on each copy of Software all notices of Licensor's patent, trademark, copyright or restricted rights.
7.4 Licensee will not reverse compile any software except as permitted by law.
7.5 That a Licensee agrees not to provide, disclose or make available any Software to any third party other subsidiary, other than pursuant to the terms of this Agreement.
8. Term
The Licence for any item of Software will commence on the date of the Licence Order and continue until termination in accordance with the terms of this Agreement.
9. Charges
9.1 The licence fees for the Software will be set out in the Exhibit A and will include the cost of one copy of the user documentation for each item of Software
9.2 Charges for maintenance are set out in Exhibit B. Subject to Clause 10.1 below, charges will commence on the Acceptance Date. Licensor shall not charge Licensee for work covered by the Warranty. Charges shall be fixed for 12 months from the date of commencement of services and increases in charges shall not in any year exceed a percentage rise equivalent to the year on year rise in Irish RPI expressed as a percentage for that same period.
9.3 Licence fees and maintenance charges will be due and payable 30 days from the Acceptance Date.
9.5 Late payment will bear interest at the rate of 2% over the prevailing minimum base rate in the Republic of Ireland on the amount of the delayed payment for the period of delay.
9.6 All prices are exclusive of VAT which will be payable by Licensee and are exclusive of import duties which will be payable by the Licensee.
10. Warranty
The following warranties shall apply to the Software:
10.1 Commencing on the Acceptance Date, any Software as delivered by Licensor and properly installed and operated on the applicable Designated Equipment will perform substantially as described in Licensor's then current user documentation for a period of ninety (90) days. Licensor's sole obligation in respect of a breach of the foregoing warranty shall be to modify or replace the Software so as to correct the defective performance;
10.2 The above warranty shall not apply in the event of damage caused to Software by accident, neglect, misuse, failure of electric power, air conditioning or humidity control or causes other than ordinary use. Licensor makes no warranty that the Software is error free or that its use will be uninterrupted.
10.3 Except as provided in section 10, all warranties, conditions, representations and guarantees, whether express or implied, arising by law, custom, oral or written statements of Licensor or otherwise (including, but not limited to, any warranty of merchantability or fitness for particular purpose or of error-free and uninterrupted use) are hereby superseded, excluded and disclaimed.
11. Patent Indemnity
11.1 If notified promptly in writing of any action brought against Licensee based on a claim that Licensee's possession or use of the Software infringes any Intellectual Property Rights, the Licensor will undertake the defence, settlement or compromise of such action at its expense and pay the costs and damages awarded, provided that Licensor shall have sole control of the defence of any such action and all negotiations for its settlement or compromise. At any time during the course of any litigation arising out of any claim of infringement over any Intellectual Property Rights, or if in the Licensor's opinion Licensee's possession or use of the Software is likely to become infringing, Licensor will procure for Licensee the right to the continued use or possession of the Software or replace or modify the Software so that it is non-infringing without detracting from its overall performance with respect to the item of Software.
11.2 Licensor will have no liability to Licensee under this clause if the infringement or claim is based upon any modification of any item of Software by a party other than the Licensor or its authorised agent.
12. Limit of Liability
12.1 In no event will either party be liable for:
special, indirect, incidental or consequential damages;
or
damages for loss of profit arising out of or in connection with this Agreement;
12.2 in no event will Licensor's total liability for any damages based on contract or tort arising out of or in connection with this Agreement exceed the licence fee paid by Licensee for the Software;
12.3 the above limitations will not apply to death, personal injury or otherwise to the extent prohibited at law.
13. Disaster Transfer
Licensee may without notice transfer the Software to another compatible and equivalent computer in the event of a disaster rendering the Designated Equipment temporarily unusable.
14. Source Code
Licensor has placed a copy of the source code of the Software with NCC Escrow International Limited whose registered office is at Oxford House, Oxford Road, Manchester M1 7ED, England and you should contact them directly to avail of this service. They will be notified of your status as a registered user of MCOM(tm).
15. Termination
15.1 Either party may terminate this Agreement by notice in writing if:
15.1.1 the other party ceases to carry on business in the normal course, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary other than for the purposes of amalgamation or reconstruction or compounds with its creditors generally or has a receiver, administrator, administrative receiver, liquidator or manager appointed over all or any of its assets or undertaking or suffers execution or distress, or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due or;
15.1.2 either party fails to perform any obligation required to be performed by it under this Agreement for a period of 30 days after receipt of notice from the other party of such failure;
15.2 termination of any Licence or this Agreement shall not prejudice any rights of either party which may have arisen on or before the date of termination. Within 7 days following the date of termination of the Licence or of this Agreement, Licensee shall at the option of Licensor return or destroy all copies, forms and parts of the Software and any documentation relating thereto which are covered by this Agreement or the relevant Licence and shall certify to Licensor in writing that this has been done.
15.5 Clauses 11, 12, and 16 shall survive termination of this Agreement.
16. Confidentiality
Both parties agree to hold in confidence and will at all times keep secret the affairs and concerns of the other party and its subsidiaries and their respective transactions in business with each of their customers, both past and present and will, notwithstanding its compliance with this clause only disclose such information on a need to know basis to its personnel, agents, contractors and sub-contractors and will use best efforts to ensure that its personnel, agents, contractors and sub-contractors comply with this undertaking. Licensee will indemnify Licensor from and against all actions, proceedings, claims and demands which may be brought or made against it and all losses, costs, charges, damages and expenses which Licensor may incur or sustain or for which Licensor may become liable by reason of any breach by Licensee of this undertaking.
17. Notices
Any notices to be given hereunder shall be in writing and addressed to the parties at their respective addresses first shown above, or to such other address as may be notified by one party to the other in writing from time to time.
18. Force Majeure
Neither party shall be liable for failure or delay in the performance of its obligations under this Agreement due to causes beyond its control including but not limited to strikes, wars, revolutions, fires, floods, explosions, earthquakes or governmental regulations.
19. Assignment
Licensee shall not be able to assign this Agreement without the prior written consent of the Licensor, such consent not to be unreasonably withheld. Any attempt to assign without the consent of the Licensor shall be void. Licensor shall be free to assign its rights under this Agreement provided the assignee undertakes the rights and obligations of this Agreement.
20. Waiver, Amendment or Modification
20.1 No waiver of any term of this Agreement or any remedy or right hereunder will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.
20.2 No amendment or modification of this Agreement will be effective unless it is in writing and signed by both parties.
20.3 The terms of this Agreement shall not be amended by any Licence Order or acknowledgement thereof.
21. Computer Viruses
Licensor warrants that it continually uses all reasonable efforts to ensure that the Software and any versions, upgrades, patches or fixes are supplied free of computer viruses and undergo virus checking procedures, in line with best practice.
22. Year 2000 Compliance
The Licensor warrants that the Software includes appropriate design, data structure and functions to cope with the change of the century at the year 2000, such that the Software will continue to function as set out in its documentation after the 31st December 1999. Such functions include but are not limited to, century recognition, ability to handle same century and multi-century functions and century recognition in existing interface formats.
23. Key
Licensee acknowledges that a special program owned and controlled by the Licensor ("Key") also will prevent the software from operating on any computer with a serial or model number different from those of the Licensed Computer. The Permanent key will be provided to the Licensee promptly after payment in full of the license fee specified in this Agreement and in any relevant Licence Order. Any attempt by an person other than an authorised representative of the Licensor to alter, remove or deactivate the Key will be deemed a fraud by such person on Licensor and a material breach by Licensee of this Agreement.
24. Entire Agreement, Governing Law
This Agreement together with the Exhibits annexed hereto, shall constitute the entire Agreement between the parties in relation to the subject matter of this Agreement and shall be governed by and construed in accordance with the laws of Ireland and the parties submit to the non-exclusive jurisdiction of the Courts of Ireland.
Licensee:-
Licensor:- Millennecom Ltd.
Signature:-
Signature:-
Name:-
Name:-
Address:-
Address:- Citywest Business Campus
Lake Drive 3010, Saggart,
Co. Dublin, Ireland
Title:-
Title:-
Exhibit A
Agreement For: MCOMT0004
LICENCE ORDER
This Licence Order is made pursuant to the Computer Software Licence Agreement dated:
1.0 Description: MCOM(tm)
1.1 Once Off Fee:
2.0 Point for initial software delivery:-
Licensee:-
Licensor:- Millennecom Ltd.
Signature:-
Signature:-
Name:-
Name:-
Address:-
Address:- Citywest Business Campus
Lake Drive 3010, Saggart,
Co. Dublin, Ireland
Title:-
Title:-
Tel:-
Tel:-
Fax:-
Fax:-
Email:-
Email:- ms400@ms400.com
Exhibit B
Maintenance Services
1. Maintenance Services to be provided:
1.1 Telephone support for Licensee enquiries, the reporting of errors and other problems related to the use of the Software between the hours of 09.00 to 17.30 hours (GMT) Monday to Friday, excluding public holidays observed by the Licensor. A twenty-four hour, seven day e-mail address, facsimile number and voicemail number will be provided to the Licensee.
1.2 Telephone support will consist of advice and assistance as required by the Licensee within a maximum of four working hours within the periods stated in 1.1 above.
1.3 Telephone support will only be given to those staff (no more than three in number) who have been nominated by the Licensee and who have attended or will be due to attend within a reasonable timetable educational programs applicable to the Software within their area of responsibility. These staff will titled Licensee Support Desk Co-ordinators. The areas of responsibility will be designated as between Distribution, Manufacturing or Financial. All telephone support calls from the Licensee will be channelled through the Licensee's appropriate Licensee Support Desk Co-ordinator (or in his/her absence through a pre-nominated substitute Co-ordinator who will have been educated to an appropriate level in the relevant area of software).
1.4 Licensee Support Desk Co-ordinators will designate support calls as follows:
1.4.1 Status A - Urgent attention required as consequences of this failure are very significant. Software alterations may be required and Licensee is not willing to await the installation of a new release of the Software.
1.4.2 Status B - Consequences of this failure are not severe. Software alterations may be required and Licensee will not await rectification of a problem in a future release of the software.
1.4.3 Status C - Software problem reported but Licensee will await rectification of the problem in a future release of the Software
1.4.4 Status D - Consultancy advice required. Licensee has followed its own Support Desk procedures and requires reassurance or advice on a function of the Software.
1.5 For designated Status A and Status B calls Licensor shall assist Licensee diagnose a fault by suggested tests and fault tracing techniques. In any event Licensor will use all reasonable efforts to correct the fault, error or problem within a reasonable time.
1.6 Where appropriate the Licensor will endeavour to isolate the fault, error or problem using the Licensor's own facilities.
1.7 Licensor will send personnel to the Licensee's premises to provide on-site assistance in the correction of the fault, error or problem only in emergency situations in which the correction cannot be carried out at the Licensor's own facilities within a reasonable time scale. Licensee shall pay for the reasonable expenses incurred by the Licensor's personnel in connection with on-site support.
2. Other Services:
2.1 Licensor can assist the Licensee set-up its own Support Desk team and function. Licensor can also assist in arranging for proper training and education of Licensee's personnel for fault and error diagnosis. Licensee shall pay the Licensor personnel's then daily rate plus reasonable expenses incurred in connection with this service.
