EXHIBIT 10.45
Execution Version
SOFTWARE LICENSE
AGREEMENT
This Software License Agreement
(hereinafter referred to as the “ Agreement
”) is made this 29 th day of March, 2004, by and between
CADMUS KNOWLEDGEWORKS INTERNATIONAL LTD ., a company
incorporated under the laws of Mauritius having its registered
office at c/o Abacus Financial Services (Mauritius) Limited, Third
Floor, TM Building, Pope Hennessy Street, Port Louis, Republic of
Mauritius (hereinafter referred to as “
Licensor ”) and KNOWLEDGEWORKS GLOBAL
PRIVATE LIMITED , a company incorporated in India under the
Companies Act, 1956 having its registered office at Knowledge
Centre, Street No. 17, MIDC, Andheri (East), Mumbai 400 093, India
(hereinafter referred to as “ Customer
”).
Background
A. Licensor
will become the registered and beneficial owner of eighty percent
(80.0%) of the total paid up equity share capital of
Customer.
B. Customer
is in the business of providing content management, content
processing and other services.
C. Licensor
is the owner of certain proprietary software and tools more
particularly described in Schedule 1 ( hereinafter referred to as
the “ Software ”).
D. Customer
desires to obtain from Licensor, and Licensor agrees to grant to
Customer, a non-exclusive and non-transferable license to use the
Software in accordance with the terms of this Agreement and as
agreed to by the Licensor and Customer from
time-to-time.
Agreement
Accordingly, in consideration of the
mutual promises and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Licensor and Customer agree as
follows:
1. License
Grant. Subject to the terms and
conditions of this Agreement, Licensor hereby grants to the
Customer a non-exclusive and non-transferable license to use the
Software in accordance with the terms of this Agreement and such
other terms as may be agreed to by the Licensor and Customer from
time-to-time, for an unlimited number of users and/or concurrent
devices and to load and store the said Software solely for its own
business purposes. “Concurrent device “ is each
terminal, monitor or input device being used to access network at a
given point in time. If multiplexing software or hardware is used,
number of concurrent devices must be measured as the number of
terminals, monitors or input devices being used at the multiplexing
front end. Customer shall not use the said Software for commercial
time sharing, rental or service bureau use involving any person or
entity. Except to the extent needed to use and operate the said
Software for its own business purposes, the Customer agrees not to
cause or permit reverse engineering, disassembly or de-compilation
of the said Software. Customer agrees not to remove any product
identification, copyright notices, or other notices or proprietary
restrictions from the said Software. Customer may make copies of
the said Software for back up purposes.
2. Delivery
of Software. Licensor shall provide
Customer one executable copy of the Software (including each
improvement), by way of electronic transmission, for use by
Customer and, upon satisfactory downloading, the Customer shall
promptly acknowledge receipt of the said Software (or
improvement).
1
Execution Version
(a)
Amount.
In consideration of the license granted
herein, Customer will pay Licensor a royalty (the “
Royalty ”) equal to (a) two percent (2%) of
Customer’s Net Sales of goods and services relating to export
sales (but excluding for this purpose any sales to Cadmus
Professional Communications or any other affiliate of Cadmus
Communications Corporation), and (b) one percent (1%) of
Customer’s Net Sales of goods and services relating to Indian
domestic sales; where “ Net Sales ” means
gross sales less agents’/dealers’ commission, transport
cost, including ocean freight, insurance, duties, taxes and other
charges, and costs of raw materials, parts, and components imported
from a foreign supplier or its subsidiary/affiliated company
provided that in no event shall the Royalty exceed the maximum
amount permitted to be paid under applicable law. The parties
hereto shall annually review the rate of Royalty set forth
hereinabove, no later than 30 days following each anniversary of
this Agreement, during the term, to ensure that the percentage of
Royalty payable hereunder reflects at all times the arm’s
length value of the rights granted to the Customer under this
Agreement. In the event that the parties hereto determine, by
mutual agreement, any change in the percentage of Royalty payable
by the Customer under this Agreement then an appropriate amendment
to this Agreement shall be executed in writing by the parties
hereto to reflect such change in the percentage of Royalty payable
by the Customer to the Licensor under this Agreement.
(b)
Reporting.
Customer will provide Licensor with a
monthly statement in a format agreeable to Licensor, itemizing the
Royalty payable, within 30 days following the end of each month. In
addition this monthly statement shall also include the rate at
which tax will be deducted at source on the Royalty payable and the
amount of such deduction. Each monthly report will be accompanied
by a statement signed by an authorised officer of Customer
certifying that the report is accurate, correct and complete and
prepared in compliance with this Agreement.
(c)
Payment.
Customer and Licensor will agree from
time-to-time during the term of this Agreement upon appropriate
procedures, mechanics and timing for payment of the Royalty by
Customer to Licensor. For example, but without limitation, Customer
could pay the Royalty to Licensor contemporaneously with each
statement; or Customer could pay the Royalty to Licensor
periodically when Licensor’s Board of Directors meet to agree
upon final arrange
