EXECUTION
COPY
SOFTWARE LICENSE AND SERVICES
AGREEMENT
This
Master Software License and Services Agreement (the "AGREEMENT") is
executed as of the 19 th day of January, 2006 (the "EFFECTIVE DATE") by
and between Superclick, Inc., a Washington Corporation with its
principal place of business at 10222 St-Michel, Suite 300,
Montreal, Quebec H1H 5H1 ("Superclick") and Hospitality Services
Plus SA (formerly Swisscom Eurospot SA), a Swiss corporation, with
its principal offices located at Chemin de l’Etang 65,
CH-1214 Vernier, Switzerland ("Swisscom"). Superclick and Swisscom
are sometimes referred to herein as the
“Parties”.
A. WHEREAS,
Swisscom is a European leading provider of high-speed Internet
access, conference services and business centre solutions to the
hospitality industry. Swisscom operates a pan-European and US
network of locations, offering its services through fixed-line and
wireless access and has exclusive working relationships with its
hotel partners; and
B. WHEREAS,
Superclick is a developer and distributor of IP-based traffic
management systems, including SIMS, MAMA and MDS as more fully
described in Section 1 below (the “Licensed Products”);
and
C. WHEREAS,
based on the mutually agreed upon success of a pilot project,
wherein the Licensed Products have been installed and tested in one
of Swisscom’s contracted properties in Europe (the
“Pilot Project”), the Parties desire to enter into an
agreement whereby Swisscom will retain an exclusive license to use
and modify the Licensed Products for the provisioning of its
services to the hospitality industry (i) in Europe (the
“Territory”) as more fully described in Section 1 below
and (ii) outside of the Territory as defined in Annex 3
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NOW, THEREFORE,
in consideration of the premises, covenants and agreements
contained herein and other good and valuable consideration, the
Parties agree as follows:
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“Acceptance Date” means the day
following the expiration of the Trial Period, but no later than 60
days after the Effective Date or otherwise agreed between the
Parties in relation to the Timeline defined in Annex 1 of the
Agreement wherein Swisscom shall be deemed to have accepted the
Licensed Products (the “Acceptance Date”). Refer to
Annex 1 for timelines.
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“Delivery
Date” means the date that is seven (7) days after the
Effective Date, upon which date Superclick shall deliver to
Swisscom a copy of the Licensed Products (including source code)
and the Documentation. If Superclick fails to deliver the foregoing
items on the Delivery Date (or within a reasonable time thereafter,
as determined by Swisscom in its sole discretion) Swisscom shall be
entitled to terminate this Agreement in its sole
discretion.
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“Documentation” means the
instruction manuals, user guides and other information (which shall
be identified by title and reference number in Annex 7 to the
Agreement) to be made available by Superclick either in printed or
machine readable form to Swisscom together with the Licensed
Products. For the avoidance of doubt, “Documentation”
shall include all documents and materials that shall enable
Swisscom to understand and operate the Licensed
Products.
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1.4
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“Effective Date” means the date that
the Agreement is executed by Superclick and by Swisscom.
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1.5
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“Licensed
Product(s)” means, collectively, SIMS, MAMA, MDS and
corresponding source code (identified in title and reference number
in Schedule A of the Agreement) and any relevant tools to SIMS,
MAMA and MDS, together with the Documentation, including Updates
and upgrades of such current software programs and Documentation.
The Licensed Products shall contain all and any existing software
of Superclick which is required to use, sell and distribute the
Licensed Products as described above.
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1.6
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“Price
List” means as defined in Annex 5 of the
Agreement.
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1.7
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“Software
Maintenance” means repairs and enhancements in any of the
Licensed Products.
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1.8
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“Technical Support” means services
provided by Superclick in support and/or maintenance of
Swisscom’s use of the Licensed Product(s) as further
described in Section 5 and Schedule A below.
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1.9
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“Territory” means the current 25
Member States of the European Union and Switzerland, Turkey,
Serbia, Macedonia, Bulgaria, Croatia, Romania, Albania, Andorra,
Bosnia Herzegovina, Iceland, Liechtenstein, Monaco, Norway, Russia,
Byelorussia, San Marino, Vatican, Moldavia and Ukrainia.
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1.10
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“Trial
Period” means the period in which Swisscom has installed a
beta version of the Licensed Products for field testing, but no
longer than eight (8) weeks from Effective Date.
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1.11
“Updates” means error corrections, bug fixes, patches
and work around to the Licensed Product(s).
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Exclusivity in
the Territory. Subject to the terms of this Agreement, Superclick
grants to Swisscom an exclusive license for the Territory (as
defined above in Section 1.9) to use, modify, sell, distribute, and
sublicense the Licensed Products.
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Non-Exclusivity. Subject to the terms of this
Agreement, Superclick grants to Swisscom a non-exclusive license
for outside of the Territory, including North America (pursuant to
terms and conditions outlined in Annex 3) to use, modify, sell,
distribute and sublicense the Licensed Products.
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Superclick
shall grant to Swisscom the right to access and modify the source
code of the Licensed Products through the duration of this
Agreement.
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In addition to
Section 6.3 Superclick shall undertake to provide Swisscom with
know-how over a 180 day period after the Effective Date, which is
required in order to use and modify the Licensed Products within
the scope of this Agreement.
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Software
Upgrades. Superclick shall undertake to issue from time to time, of
which Swisscom shall be notified by Superclick regularly, any
improved, modified or corrected version to current versions of the
Licensed Products which it shall make automatically and immediately
available to Swisscom without any additional cost to Swisscom in
the most actual and up to date version. Superclick commits to
continuously invest and enhance the Licensed Product(s) during the
Term.
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Specification
of the Hardware. Superclick will provide Swisscom with the
specification of the certified hardware required for the Licensed
Products.
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Sublicenses.
Sublicenses by Swisscom will contain substantially equivalent
restrictions and confidentiality as contained in Sections 4 and
11.1 of this Agreement. Superclick acknowledges and agrees that the
term of the sublicenses granted may be perpetual.
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At
Superclick’s written request, but no more than once annually,
Swisscom shall furnish Superclick with a signed report verifying
that the Licensed Product(s) are being used pursuant to the
provisions of this Agreement.
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The Licensed
Products contain confidential information of Superclick and all
copyright trademarks and other intellectual property rights in the
Licensed Products are and remain exclusive property of Superclick
(other than, in accordance with Section 3.2., improvements and
modifications to the Licensed Products developed by Swisscom). The
License does not constitute a sale of the Licensed Product(s) or
any portion or copy thereof. Notwithstanding the foregoing,
Superclick grants to Swisscom the access to the source code and the
right to:
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Use the
Licensed Products, which includes but is not limited to:
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Make back-up
copies of the software and the Documentation
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Reverse
compile, copy or adapt the whole or part of the Licensed Products
and the Documentation
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Develop and
modify, create off-shoots of the Licensed Products and the
Documentation
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Get access to
all available know-how, necessary to use the Licensed Products and
the Documentation
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Distribute and
sell the Licensed Products, which includes, but is not limited
to:
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Making the
Licensed Products available to third parties (including but limited
to Swisscom’s partners, customers in the hospitality
industry). In the event of a conflict of interest in relation to a
third party in the Territory, the Parties shall discuss the
situation and use reasonable efforts to agree on a solution in good
faith.
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Intellectual
Property Rights on the Application. Where Swisscom develops any new
intellectual property on the Licensed Products and related source
code (“Swisscom Developed IP”), Swisscom shall retain
full ownership of the Swisscom Developed IP. However, in all
instances, under the terms and conditions of the Agreement,
Superclick shall retain full ownership of the Licensed Products and
related source code.
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3.3.
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Pre-Emption
Rights. In case of an intended sale of the entire or parts of the
Licensed Products to a third party, in case of a change of
ownership of Superclick, or in case of Superclick becoming subject
to insolvency proceedings Swisscom shall have the first right to
purchase such Licensed Products at a price matching or exceeding
the highest offer for the acquisition of the Licensed Product(s)
from the proposed third party purchaser.
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Swisscom shall
be allowed to sell, offer to sell, or promote the Licensed Products
outside the Territory in accordance with the terms and conditions
specified in Annex 3.
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Swisscom shall
not remove any product identification in the source code, copyright
or other notices from the Licensed Product(s).
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Swisscom agrees
that it will not without Superclick’s written consent
discount the selling price of the native Licensed Product(s) in the
form delivered to Swisscom at the Delivery Date, which shall mean
the SIMS, MAMA and MDS applications in the form marketed and sold
by Superclick, in order to promote the sales of other products of
Swisscom or the Application, or for any reason whatsoever and that
it will conduct all price negotiations in good faith on an arms
length basis.
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TECHNICAL
SUPPORT, MAINTENANCE AND DEVELOPMENT
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Technical
Support. (a) During the Term Superclick shall provide the Technical
Support set forth in Annex 8. In furtherance of, and in addition
to, Sections 2.4 and 2.5 above, Superclick shall provide Swisscom
with Licensed Product enhancements as made generally available as
well as the error corrections and bug fixes. (b) Swisscom will
provide all required support and interface to their end-user. (c)
Swisscom will have one (1) interface to Superclick’s Customer
Support organization.
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Post-Termination Support. Should Swisscom
request to receive further Technical Support, training, Software
Maintenance and development after termination or expiry of the
Agreement, the Parties shall in good faith agree on such revised
terms of a new Agreement.
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5.2.
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Superclick
Enhancements to the Licensed Products. Superclick shall promptly
inform SCE on any new software developments that it has undertaken
of the Licensed Products and of any new software, that will be
developed by Superclick in addition to the software that is part of
the Licensed Products. SCE shall have the right to conduct audits
of Superclick’s development efforts at any time, throughout
the term of the MLA, upon written notice to Superclick no less than
15 business days in advance of the requested audit date.
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5.3
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Incidental Expenses. Swisscom shall
reimburse Superclick for actual, reasonable travel expenses
including hotel expenses incurred by Superclick in connection with
on-site services requested by Swisscom in accordance with its
applicable cost policy. Labor expenses shall be assumed by
Superclick.
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5.4
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Maintenance. All enhancements and updates
that Superclick makes to the Licensed Products for its own
commercial purposes are included as part of Superclick’s
maintenance obligation. Any enhancements and updates that require
Superclick to enter into royalty and/or licensing agreements with
third parties shall be excluded from this scope, including any
mark-up in pricing on Superclick’s behalf. Enhancements and
updates as defined in this Section 5.3 are exclusive of
customization projects by Superclick on third-party’s behalf
and on any new products. If Swisscom chooses to use some or all of
these enhancements and/or updates, the Parties agree to negotiate
the terms in good faith.
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5.5
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Development. In addition to software
developments that Superclick may undertake on the Licensed
Products, Superclick shall undertake to provide for 160 hours per
calendar year of development on the Licensed Products in
coordination with Swisscom.
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5.5.1
Additional Development Hours. Swisscom shall be entitled to request
further development hours from Superclick, which will be charged at
USD $175.00 per hour.
5.5.2. A first
estimation of a successful implementation is defined in Schedule B
attached.
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PAYMENT
PROVISIONS AND REPORTING.
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License Fees.
The License Fee to be paid by Swisscom to Superclick is USD Seven
Hundred Thousand ($700,000.00).
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Payment
Schedule. The License Fee shall be paid Two Hundred Thousand
($200,000) Dollars (“Initial Payment”) on Delivery
Date, Five Hundred Thousand ($500,000) dollars upon the Acceptance
Date
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Recurring Fees.
Recurring Fees to be paid by Swisscom to Superclick for
provisioning by Superclick to Swisscom of know-how, software
maintenance, software updates, technical support and software
development are Three Hundred and Ninety Thousand ($390,000)
Dollars over the Term of the Agreement to be paid pro rata in the
amount of Thirty-Two Thousand and Five Hundred Dollars ($32,500)
quarterly upon invoice issued by Superclick and to be paid by
Swisscom for the first time on Acceptance Date.
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Recurring Fees
Renewed Term. Recurring Fees to be paid by Swisscom to Superclick
in the event that the Agreement continues after the Term has
expired, shall be One Hundred and Thirty Thousand ($130,000)
Dollars to be paid by Swisscom per additional year (pro rata, in
quarterly installments) by which the Term will be
extended.
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Referral Fees
and Commissions. See Annexes 2 and 3.
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6.5
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Recurring Fees.
Late payments will bear interest at the rate of 1% per month to
cover Superclick’s costs of collection as well as interest,
or, if lower, the maximum rate allowed by law.
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Term. The
initial term of this Agreement shall be for three (3) years from
the Acceptance Date (the “Term”). Thereafter, this
Agreement shall automatically be extended for one year periods,
pursuant to the terms and conditions outlined in 6.3.1., until
terminated by Swisscom by at least 6 (six) months’ prior
written notice.
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7.2
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This Agreement
shall become effective as of the Effective Date.
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7.3
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Termination.
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7.3.1 The
Agreement may be terminated by either Party if (a) the other
commits any material breach of any term of this agreement and which
shall not have been remedied within 60 days of a written request to
remedy the same or (b) subject to Swisscom’s rights under
Section 3.3, by a Party forthwith by notice in writing if one Party
becomes insolvent or takes significant steps for its winding
up.
Provided,
however, that upon any such termination by either one of the
Parties, such Party may exercise any rights and remedies provided
by contract or at law or equity in order to seek monetary
compensation or damages or an injunction for purposes of seeking to
enjoin use of any license under this Agreement for uses not
permitted under this Agreement, provided further, however, any such
termination shall not modify or shorten the term of any license
granted by Superclick to Swisscom under this Agreement.
7.3.2 If,
during the Trial Period, Swisscom determines in its sole
discretion, that the Licensed Products do not meet its
requirements, then Swisscom shall be entitled to terminate the
Agreement. In such case Swisscom shall return or destroy all copies
of the Licensed Product(s) and all portions thereof (whether or not
modified or incorporated with or into other software) and so
certify to Superclick.
7.3.3 Effect of
Termination. Upon termination of this Agreement, Swisscom shall
immediately cease further distribution or sale of the Licensed
Product(s) ; provided, however, that the termination or expiration
of this Agreement shall not affect any sublicenses to the Licensed
Products granted by Swisscom in accordance with this Agreement
prior to such termination or expiration. The parties’ rights
and obligations under Sections 8, 9, 10, 11 shall survive the
termination of this Agreement.
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7.4
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Break-Up Fee.
If, during the Trial Period, Swisscom reasonably determines, in its
sole discretion, that the Licensed Product do not meet
its requirements and terminates the Agreement, Superclick shall
immediately repay to Swisscom One Hundred Thousand Dollars
($100,000) of the Initial Payment paid to it by Swisscom upon the
execution of the Agreement and keep One Hundred Thousand Dollars
($100,000) of the Initial Payment as break-up fee (the
“Break-Up Fee”).
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7.5
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Usage After the
Term. After the Term of this Agreement has expired but the
Agreement continues to be extended in accordance with Section 7.1,
Swisscom shall (a) make payment to Superclick in accordance with
Section 6.3.1 and (b) comply with the terms and conditions of Annex
2, Annex 3, Annex 4 and Annex 6. In case of Termination, Swisscom
shall not be allowed any further use and modification of the
Licensed Products in new properties. However, Swisscom shall be
allowed continued use and modify the Licensed Products in existing
properties .
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PATENT AND
COPYRIGHT INFRINGEMENT
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Superclick will
indemnify and hold harmless Swisscom and will defend any action
brought by a third party against Swisscom to the extent that such
action is based on a claim that the Licensed Product(s) or any part
thereof used within the scope of the license granted herein,
infringe a copyright, trade secret or United States or foreign
patent. Superclick will bear the expenses of such defense, as
incurred, and pay any damages and attorney’s fees awarded by
a court of competent jurisdiction to the extent attributable to
such claim, provided that: (a) Swisscom notifies Superclick
promptly in writing of such claim, provided that the failure to
provide notice
shall not
relieve Superclick of its responsibility under this Secition 8, (b)
Superclick has sole control of the defense and all related
settlement negotiations; and (c) Swisscom provides Superclick with
assistance and information required to perform Superclick's
obligations under this Section 8. Superclick shall have no
liability for any claim of infringement based upon (i) use of a
superseded or altered release of Licensed Product(s) (unless the
alteration was made or authorized by Superclick) if the
infringement would have been avoided through the use of a current
unaltered release of the Licensed Product(s) which Superclick
provided to Swisscom free of charge, (ii) use of the Licensed
Product(s) combined with other products, processes or materials
where the alleged infringement arises solely from such combination,
or (iii) use not in accordance with this Agreement. If the Licensed
Product(s) is or in Superclick's judgment may become the subject of
any claim of intellectual property infringement, or if a court
determines that the programs infringe any intellectual property
right then Superclick may at its option and expense either (i)
procure for Swisscom the right under such intellectual property
right to use such program; or (ii) replace the program
with other software deemed suitable in Swisscom’s sole
discretion: or (iii) modify the program to make the software
noninfringing; or, if (i), (ii) and (iii) are commercially
impractical, (iv) remove the program and refund a pro rata portion
of the license fees paid by Swisscom for such program, less an
amount for use calculated over a five year period using straight
line depreciation. THE FOREGOING CONSTITUTES SUPERCLICK'S SOLE
LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT AND IS IN LIEU OF
ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY
DISCLAIMED.
Superclick
represents and warrants to Swisscom as of the date of this
Agreements as follows
(a) Superclick
has good and marketable title and property in the Licensed Products
(free and unencumbered) (b) Superclick has all requisite corporate
power and authority to execute and deliver this Agreement and take
the actions contemplated hereby (c) Superclick will perform
Technical Support, Training, Software Maintenance and Development
with reasonable care and skill.
Subject to the
conditions and limitations on liability stated herein, Superclick
warrants for a period of ninety (90) days from the delivery of the
initial copy of the final version of each type of program hereunder
that such program, as so delivered, will materially conform to the
then-current Documentation and will be operable in accordance with
its intended use. In addition, Superclick warrants the media on
which Licensed Product(s) are contained will be free of defects
under normal use for a period of ninety (90) days following
delivery thereof. This warranty covers only problems reported to
Superclick during the warranty period. ANY LIABILITY OF SUPERCLICK
WITH RESPECT TO THE PROGRAM(S) OR THE PERFORMANCE THEREOF OR
DEFECTS THEREIN UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR,
IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN SUPERCLICK'S
OPINION, IMPRACTICAL, TO REFUND OF THE LICENSEE FEE AND TERMINATION
OF THE LICENSE. EXCEPT FOR THE FOREGOING, THE PROGRAM(S) ARE
PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER,
SUPERCLICK DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
THAT THE PROGRAM(S) WILL BE FREE FROM BUGS OR THAT USE OF
PROGRAM(S) WILL BE UNINTERRUPTED OR REGARDING THE USE, OR THE
RESULTS OF THE USE, OF THE PROGRAM(S) OR DOCUMENTATION IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. Swisscom
understands that Superclick is not responsible for and will have no
liability for hardware, software, or other items or any services
provided by any persons other than Superclick.
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LIMITATION OF
REMEDIES AND DAMAGES, FORCE MAJEURE EXCEPT FOR BODILY INJURY OF A
PERSON, SUPERCLICK SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT
TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR INTERRUPTION
OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR (EXCEPT
FOR RETURN OF AM
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