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Exhibit 10.18
yc
ASSIGNMENT OF COPYRIGHT AND LICENSE OF
PATENTS AND TRADE MARKS
1.
PARTIES
1.1.
The parties to this agreement are
1.1.1. METROLINK
(PROPRIETARY) LIMITED
1.1.2 NET
1 PRODUCTS (PROPRIETARY) LIMITED
1.2.
The parties agree as set out below.
2.
INTERPRETATION
2.1.
In this agreement, unless inconsistent with or otherwise
indicated by the context:
2.1.1. any
reference to the singular includes the plural
and vice versa;
2.1.2. any
reference to natural persons includes legal
persons and vice versa;
2.1.3. any
reference to a gender includes the other
genders.
2.1.4.
"copyrighted works" means the UEPS consisting of
programmes and program modules currently written for the
smart cards and the Crouzet MoneteI P500 terminal;
details of the said programmes and program modules which
provide functions as listed in Appendix 1 hereto;
2.1.5. "effective
date" means the 1st OCTOBER 1990;
2.1.6. "FTMs"
means Funds Transfer Machines which customers
will access with their personalised smart cards in order
to utilise the UEPS and carry out certain transactions
thereon;
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2.1.7. "Metrolink
System" means the switching and settlement
system developed by or on behalf of the purchaser,
necessary to operate the UEPS, detailed further in
Appendix 2;
2.1.8. "Metrolink
System Documentation" means:
2.1.8.1.
the set of documents, printout
specifications, file specifications and all
manuals which collectively contain a
complete description and definition of all
operating conditions of the Metrolink
System;
2.1.8.2.
all source code listings of the programmes
and program modules making up the Metrolink
System (including the most current) being,
or to be, used by the PURCHASER in the
language in which they are written, in such
detail as to enable NET 1 to operate,
maintain and modify the Metrolink System;
2.1.8.3.
operating manuals and user guides;
2.1.9. "NET 1"
means NET 1 PRODUCTS (PROPRIETARY)
LIMITED, a company incorporated with limited
liability in the Republic of South Africa under
company number 89/05779/07 c/o Deloitte Pim
Goldby, First Floor, Willis Faber House, 21 Girton
Road, Parktown, herein represented by Messrs A P
Mansvelt and S C P Belamant, in their capacities
as directors, they being duly authorised hereto in
terms of a resolution of the directors of NET 1, a
copy of which is Appendix B hereto;
2.1.10. "Perm" means the
Perm division of Nedperm Bank Limited,
a company incorporated in accordance with the laws of
the Republic of South Africa, of Perm Park, Press
Avenue, Selby Extension 15;
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2.1.11. "POS devices"
means the Point of Sale devices which will
be utilised by retail outlets to allow customers to
transact the purchase and sale of goods or services at
such outlets by means of the use of smart cards;
2.1.12. "PURCHASER"
means METROLINK (PROPRIETARY) LIMITED, a
company incorporated with limited liability in the
Republic of South Africa under company number
89/07337/07 and c/o Deloitte Pim Goldby, First Floor,
Willis Faber House, 21 Girton Road, Parktown, herein
represented by Mr P C Hibbit he being duly authorised
hereto in terms of a resolution of the directors of
METROLINK, a copy of which is Appendix "A" hereto, and
includes METROLINK's successors in title, assigns or
nominees;
2.1.13. "shareholder"
means a person who holds one or more
shares in a company;
2.1.14. "smart card"
means the customer card which when utilised
in conjunction with the copyrighted works will allow
customer access to the UEPS.
2.1.15. "system
documentation" means -
2.1.15.1. the
set of documents, printout
specifications, file specifications and all
manuals which collectively contain a
complete description and definition of all
operating conditions of the copyrighted
works;
2.1.15.2. all
source code listings of the copyrighted
works (including the most current) being, or
to be, used by the PURCHASER, in the
language in which they are written, in such
detail as to enable the
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PURCHASER to operate, maintain and modify
the copyrighted works;
2.1.15.3.
operating manuals and user guides;
2.1.16. "territory"
means the Republic, Namibia, Botswana,
Lesotho, Swaziland, Mozambique and Zimbabwe;
2.1.17. "the/this
agreement" means this agreement together with
any schedules and appendices hereto;
2.1.18. "the republic,"
means the Republic of South Africa as
constituted on 31 May 1961;
2.1.19. "UEPS" means the
Universal Electronic Payment System
designed by NET 1 and described and detailed in the NET
1 manual entitled "Universal Electronic Payment System"
and including functions listed in Appendix 1.
2.2.
Where appropriate, meanings ascribed to defined words and
expressions in 2.1 above, shall impose substantive obligations
on
the parties.
2.3.
The clause headings in this agreement have been inserted for
convenience only and shall not be taken into account in its
interpretation.
2.4.
Words and expressions defined in any sub-clause shall, for the
purposes of the clause of which that sub-clause forms part, bear
the
meaning assigned to such words and expressions in that
sub-clause.
2.5.
This agreement shall be governed by and construed and interpreted
in
accordance with the law of the Republic of South Africa.
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3.
INTRODUCTION
3.1.
NET 1 is the owner of the copyrighted works and the PURCHASER is
to
become the owner of the copyrighted works in the territory and NET
1
is to retain ownership of the copyright in the copyrighted
works
outside the territory. The PURCHASER is the owner of the
copyright
in the works making up the Metrolink System and is to retain
such
ownership within the territory whereas NET 1 is to become owner
of
the Metrolink System outside the territory.
3.2.
NET 1 has made application to register a trade mark NET 1 Logo
in
classes 9 and 16 of the Trade Marks Classification in various
countries in the territory. A schedule of such trade marks is
annexed marked Appendix 3.
3.3.
NET 1 has made application to register Patent No 89/7607 and
Patent
No 90/7106 covering novel aspects of the UEPS in South Africa.
3.4.
The parties agree that ownership of South African Patent No
89/7607
and Patent No 90/7106 and the trade mark NET 1 Logo shall vest
in
NET 1 and that the PURCHASER will use these items of
intellectual
property in the territory under licence from NET 1.
3.5.
NET 1 has concluded agreements with third parties for the supply
of
smart cards, POS Devices and FTMs necessary for the
implementation
and use of the system. NET 1 confirms that it will pass on to
the
PURCHASER the rights acquired from such third parties to use
such
smart cards, POS Devices and FTMs in implementing and using the
system.
3.6.
The PERM is a shareholder of the PURCHASER.
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4.
ASSIGNMENT OF COPYRIGHT
4.1.
Subject to the provisions of this agreement NET 1 hereby assigns
to
the PURCHASER all its rights, including all rights of copyright,
in
and to the copyrighted works within the territory and the
PURCHASER
hereby becomes the owner thereof.
4.2.
Subject to the provisions of this agreement the PURCHASER
hereby
assigns to NET 1 all its rights, including all rights of
copyright
in and to the Metrolink System and all works embodied therein in
all
countries of the world outside the territory and NET 1 hereby
becomes the owner thereof.
4.3.
This agreement shall be deemed to have commenced or taken
effect
upon the effective date.
4.4.
Within 90 days after the signature of this agreement, and
provided that payment of the sum of R3.5m (THREE AND A HALF
MILLION RAND) referred to in clause 7 shall have been paid,
NET 1 shall deliver the final system documentation to the
PURCHASER. The
PURCHASER shall do its utmost to preserve the
security and confidentiality of system documentation. The
period of 90 days referred to in this clause may be extended
by agreement the between the parties.
4.5.
Within 6 (six) months of the effective date of this agreement,
the
PURCHASER shall deliver the Metrolink System documentation
to NET 1 and NET 1 undertakes within the territory not to
provide copies of, nor to disclose, to any third party, the
Metrolink System documentation without the prior written
consent of the PURCHASER. NET 1 shall do its utmost to
preserve the confidentiality of the Metrolink System
documentation. The
period of 6 (six) months referred to in
this clause may be extended by agreement between the parties.
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4.6.
Upon signature of this agreement NET 1 shall place the system
documentation as approved by the PURCHASER in the possession
of NET 1's auditors, Messrs Deloitte Pim Goldby, and shall
cause such auditors to hold the system documentation in trust
on their behalf pending the payment of the purchase
consideration by the PURCHASER in terms of clause 7 hereof.
NET 1 hereby authorises and directs NET 1's auditors to
deliver the system documentation to the PURCHASER immediately
upon NET 1 receiving payment of the purchase consideration in
terms of clause 7 hereof. NET 1 shall cause NET 1's
auditors
to confirm to the PURCHASER that they hold the system
documentation in accordance with the provisions of this
sub-clause, as soon as such auditors shall have received the
system documentation.
5.
LICENCE OF TRADE MARK
5.1.
NET 1 hereby grants to the PURCHASER a licence to use the trade
mark
NET 1 Logo in classes 9 and 16 of the Trade Marks Classification
in
the territory in relation to goods forming part of the
copyrighted
works.
5.2.
The parties will enter into a registered user agreement in a
form
normally used by NET 1's attorneys for the purposes of
recording
licensees.
5.3.
The PURCHASER agrees to join NET 1 in making application to the
proper authority for the registration of the PURCHASER as the
registered user of the trade mark and undertakes to execute
such
documents as may be necessary for that purpose.
5.4.
The PURCHASER will not in any way represent that it has any
rights
of any nature in the trade mark or in any registrations thereof
and
all use of the trade mark will enure to the benefit of NET 1.
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5.5.
The PURCHASER will not register the trade mark, or any part of
it,
or any trade mark which is deceptively or confusingly similar to
the
trade mark as part of its company name or the name of any
subsidiary
company or company with which it is associated either directly
or
indirectly and if it does so, it will procure that such company
name
is changed on demand by NET 1.
5.6.
The PURCHASER has the right to use the NET 1 logo trade mark on
all
smart cards and devices certified for use in the UEPS and used
in
conjunction with the copyrighted works and when using the trade
mark, the PURCHASER will cause it to be reproduced exactly and
accurately and in accordance with specifications and directions
laid
down by NET 1 from time to time.
5.7.
The PURCHASER acknowledges that NET 1 is the owner of all rights
of
whatever nature in the trade mark and that it has no claim of
whatever nature in and to the trade mark. The PURCHASER shall not
at
any time attack or challenge the rights of NET 1 to the trade
mark
or induce or procure any other person to attack or challenge
such
rights:
5.8.
The period of the trade mark licence shall be for the duration
of
the use of the copyrighted works by the PURCHASER.
6.
PATENT LICENCE
6.1.
Subject to the provisions of this agreement NET 1 hereby grants
to
the PURCHASER an exclusive licence to use Patent No 89/7607 and
Patent No 90/7106 covering novel aspects of the UEPS in South
Africa
for the duration of the patent or until such time as the
PURCHASER
ceases to use the copyrighted works.
6.2.
The parties will procure that the PURCHASER is recorded as a
licensee of the patent.
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6.3.
The expiry of the patent will have no effect on the remaining
terms and conditions of this agreement.
7.
PURCHASE CONSIDERATION
7.1.
By way of a consideration for the assignment of the copyrighted
works, the PURCHASER shall pay to NET 1 the sum of R3.5m (THREE
AND
A HALF MILLION RAND) upon signature of this agreement. Such
payment
shall be subject to NET 1 giving immediate effect to its
obligations
in terms of clause 4.6 hereof.
7.2.
The purchase consideration in 7.1 shall be paid without deduction
or
demand and free of any bank exchange upon signature of this
agreement.
7.3.
No consideration will be payable by the PURCHASER to NET 1 in
respect of the licences granted to the PURCHASER in clauses 5
and 6.
7.4.
When NET 1 has received payment of the purchase consideration
the
PURCHASER shall be entitled to request delivery of the system
documentation to them by NET 1's auditors.
8.
SOFTWARE MAINTENANCE
8.1.
The parties will enter into a software maintenance agreement
with effect from 1 October 1990 containing the usual terms and
conditions to be found in software maintenance agreements in
the data processing industry. Such agreement shall provide
that the PURCHASER will pay to NET 1 a fixed monthly fee or
R80 000.00 payable in advance on or before the 1st day of each
and every month. The
initial period of such maintenance
agreement will be 1 year and at the end of each year
thereafter the fee will be renegotiated between the parties.
After the first year of its existence, the software
maintenance agreement may be terminated on three months notice
by either party.
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8.2.
In terms of the software maintenance agreement:
8.2.1. NET 1
shall ensure that the copyrighted works operate in
accordance with the UEPS as disclosed in the system
documentation
and for this purpose will maintain the
copyrighted works.
8.2.2. NET 1
shall furnish all preventative and remedial
software maintenance to those items which affect system
security and are part of the copyrighted works.
8.2.3. NET 1 will
test and certify changes to the copyrighted
works for use in the UEPS.
8.2.4. NET 1 will
maintain compatibility of the copyrighted
