EXHIBIT 4.3
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement,") is made and entered into as of
this 26th day of May, 1999 by and between PURE TECHNOLOGIES LTD., OF CALGARY,
ALBERTA, CANADA ("Company"), and FREYSSINET INTERNATIONAL (STUP) SNC., 78140, 10
rue Paul Dautier, VELIZY VILLACOUBLAY, FRANCE ("Licensee").
In consideration of the mutual covenants and undertakings hereinafter
set forth, the parties agree as follows:
1. APPOINTMENT
The Company hereby appoints the Licensee as its representative in the
Territory, as defined in Section 2 of this Agreement, for the Application(s)
defined in Section 3 of this Agreement and the Licensee hereby accepts such
appointment, to sell the Products and licenses of the Company (the "Products")
in accordance with the terms and conditions of this Agreement. Products shall
mean hardware, software and services supplied by the Company for the purpose of
continuous acoustic, damage, vibration and crack monitoring. The use of the term
"sales of Products" or similar terms in this Agreement shall refer to sales,
leases or licenses of Products and fees charged in respect of licenses to use
the data acquisition software associated with the use of the Products.
Provided that the Licensee complies with the terms and conditions of
the Agreement, Licensee shall be the Company's Exclusive Representative to sell
Products for the Applications in the Exclusive Territory, and the Company shall
not appoint another party as its representative to sell Products for the
Applications in the non-exclusive territory.
2. TERRITORY
The target of this Agreement is for the Licensee to become a global
partner of the Company.
Subject to the terms and conditions of the Agreement, the Licensee
shall have the right to sell the Products to end users located in each country
listed on Schedule "A" ("Exclusive Territory") and each country listed on
Schedule "B" (Non-Exclusive Territory) and Schedule "D" (Open Countries). The
Exclusive Territory and Non-Exclusive Territory are the "Territory" in this
Agreement. The Territory may be modified from time to time by the prior written
agreement of the parties.
Schedule C lists all countries where Fugro or its affiliates are the
exclusive representatives of the Company and Schedule D refers to all countries
not included in Schedules A, B and C.
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Subject to the terms and conditions of this Agreement:
(a) the Licensee's right to sell Products in each country of the
Exclusive Territory shall be exclusive to Licensee and the
Company shall not appoint other licensees; and
(b) the Company and Licensee shall each have a right to sell
Products in each country of the Non-Exclusive Territory and
the Company shall not appoint other licensees; and
(c) the Company shall not grant any other party a right to sell
products in a country of the Exclusive and Non-Exclusive
Territory; and
(d) Licensee may sell Products in the countries of Schedule C, '
or on a project-by-project basis, if Fugro agrees. The Company
will attempt to convince Fugro to agree to cooperate with
Licensee in Schedule C countries; and
(e) Both Company and Licensee may market Products in countries
referred to in Schedule D "Open Countries" and Company may
market through other non-exclusive Licensees in that area.
3. APPLICATIONS / PRODUCTS
Applications shall mean all uses of the Company's Products authorized
in writing by the Company. The Products are all hardware and software required
for continuous acoustic, damage, vibration and crack monitoring.
The Applications and Products may be modified from time to time by the
prior written agreement of the parties.
A Research and Development Agreement will be entered into by the
Company and Licensee, and will outline terms and conditions for research to
develop new products and improvements, which occur under the Research and
Development Agreement.
4. TERM
The term of this Agreement shall commence on the date first above
written, and, unless terminated earlier as provided in Section 14, shall
continue for three (3) years terminating upon the third anniversary of such
date, provided, that the Agreement shall thereafter be renewed without action by
either party for successive periods of one (1) year each, subject to the
termination provisions of Section 14, unless either party gives written notice
objecting to such renewal at least sixty (60) days prior to the expiration of
the then current one-year term.
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5. COVENANTS AND UNDERTAKINGS OF LICENSEE
The Licensee covenants and agrees as follows:
5.1 To use its best efforts, and to spend as much time and as much of its
resources as may reasonably be required, to promote sales of the Products to end
users in the Territory. The Licensee further agrees that it will refrain from
soliciting sales or otherwise promoting sales of the Products in Schedule C
countries. These obligations include, without limitation, the following:
(a) REGISTRATION AND LICENSURE. The Licensee agrees to use its
best efforts to promptly obtain from the proper authorities in
the Territory at its own cost and expense in Schedule A
countries only, all registrations, licenses, and approvals
required for the import, sales, and distribution by the
Licensee of the Products in the Territory. To the Company's
knowledge there is no export restriction from the USA of the
Products, nor import restrictions in the Territory.
(b) SPECIFIC PROMOTION EFFORTS. The Licensee shall, at its
expense, distribute sales literature describing the Products,
which the Company shall provide, promote the sale of the
Products through its trade publications, and exhibit the
Products at exhibitions at which Licensee is present or
attends, where it is applicable. All advertising or
promotional materials, if any, utilized by the Licensee, its
agents, or employees in conjunction with the sale of the
Products, other than such sales literature as is furnished to
the Licensee by the Company, shall be approved in writing by
the Company prior to its use or dissemination.
(c) FOLLOW-UP ON LEADS. All leads furnished to the Licensee by the
Company shall be contacted within a reasonable time and a
report of the results of such contacts shall be submitted
promptly to the Company.
(d) VISITS BY THE COMPANY. The Company shall have the right upon
reasonable notice and with the approval of Licensee to visit
and observe the Licensee's place of business and to accompany
the Licensee during sales or servicing calls or training
sessions with customers. Additionally, the Licensee agrees
that the Company may, at any time during reasonable business
hours, review and inspect the service facilities for the
Products, with the approval of Licensee.
(e) CUSTOMER COMPLAINTS. The Licensee and the Company each agree
to cooperate fully in dealing with customer complaints
concerning the Products and to take such action to resolve
such complaint as may be requested by the Company. In this
regard, the Licensee and the Company each agree promptly to
Burnish the other with any information that may be required by
the other to comply with any governmental laws or regulations
or that may be required to minimize the potential impact of a
recall of any of the Products.
(f) TRACEABILITY. The Licensee shall comply, to the best of its
ability, with any and all traceability programs in effect at
any time as initiated by the Company.
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(g) FINANCIAL AND CREDIT INFORMATION. If so requested by the
Company, the Licensee agrees to provide to the Company
adequate financial information on a confidential basis and if
requested credit references, to assure the Company of the
Licensee's ongoing financial capacity to conduct its business.
(h) The Licensee shall use the trademarks, services marks, logos
and trade dress of the Company in its efforts to promote
market and sell products and agrees to enter into a Trademark
License with the Company at no charge to the Licensee.
(i) The Licensee shall not extend any warranty, representation
commitment or make any promise to any customer, end user or
other person regarding the Products except as has been
previously approved by the Company.
5.2 The parties hereto acknowledge that the Company is knowledgeable in
acoustic monitoring including the failure of tensioned reinforcements in
buildings, nuclear facilities, prestressed water pipelines, rock and ground
anchors, and bridges, including the main cables and suspender ropes of
suspension bridges and the stay-cables of cable-stayed bridges, and in damage
surveillance and vibration monitoring, all hereafter described as the Technical
Specialism.
The Licensee shall not compete nor assist any other party to do so,
which would compete in the Technical Specialism of the Company, in the area
defined as the Territory or outside the Territory, during the period of this
Agreement and for a period of two years after the termination of the Agreement.
5.3 To refrain from any expenditure on behalf of the Company, or from
incurring any liability in the name of the Company, without the prior written
consent of the Company.
5.4 To use its best efforts to promote, safeguard, and protect the
interests of the Company, and the Company's rights to the Products, consistent
with the best business practices.
6. COVENANTS AND UNDERTAKINGS OF THE COMPANY
6.1 INTENTIONALLY OMITTED
6.2 INTENTIONALLY OMITTED
7. JOINT UNDERTAKINGS OF THE LICENSEE AND THE COMPANY
Prior to each calendar year, the Licensee and the Company will discuss
and agree on sales targets for each country or market area in the Territory, and
on the minimum marketing efforts to be expended by the Licensee in each country
or market area in the Territory in the following year. Failure to agree or
failure by Licensee to expend minimum marketing efforts may at the option of the
Company result in termination of this Agreement by the Company as per clause
14.1, or in the deletion, by the Company, on sixty (60) days written notice to
Licensee of countries or market areas from the definition of Exclusive Territory
and/or Non-Exclusive Territory.
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8. SALES
8.1 Selling Price
As requested by the Licensee, the Company will provide a Selling Price
for Products to the Licensee within the Territory, including an annual Site
License Fee, which shall be open for acceptance by Licensee for a period of not
less than 60 days for each project To confirm acceptance of each Selling Price,
Licensee will submit a Purchase Order to the Company, in form and content
acceptable to both Licensee and Company.
A Marketing Committee, consisting of two (2) representatives from the
Company and two (2) from Licensee will meet at least twice per year to discuss
all aspects of the marketing of the Products in all countries, including details
of projects, bids, pricing and potential projects. The Committee will develop a
framework for pricing Products that can be used by Licensee to market Products.
The Committee will also recommend to the Company a Selling Price for Products to
the Licensee, including the Annual Site License Fee. Licensee shall be free to
price Products to its customers as it decides. It is acknowledged that prices
shall be kept as competitive as possible.
The Company and the Licensee will enter into a Site License Agreement
in substantially the same form as Schedule F, which provides the Licensee with a
License of the SoundPrintR monitoring software for each site, in consideration
of payment to the Company of the Annual Site License Fee. In such cases the
Company will consider its attendant reduction of work and costs, and the
increase in same for Licensee in setting prices for Products to licensee.
9. CONFIDENTIALITY
9.1 Confidential Information
Licensee shall keep confidential the Agreement, all data, data bases,
computer programs, marketing plans and information provided to Licensee by or on
behalf of the Company in connection with the Agreement or Products and all other
confidential and proprietary information of the Company, now existing or to be
developed in the future (such information is intended to include all information
of any kind whatsoever related to the Company's business which is not generally
and publicly known, including information received orally or by a confidential
writing which, prior to such receipt, was non-public information of such
recipient) (collectively the "Information"), and all Information (including data
generated by operation of the Products) developed by the operation of the
Products, and shall not disclose the Agreement or any such Information to any
person, firm, entity or corporation without the prior written permission of the
Company. Licensee shall be bound by an obligation of confidence to the Company
in respect of any Information or trade secrets. In respect of such Information,
Licensee shall not:
(a) disclose, either directly or indirectly, any such Information,
or any part thereof, to any person, firm, corporation or
entity other than subsidiaries of Licensee and then only if it
obtains a similar obligation of confidence of such recipient
except as is specifically contemplated in this Agreement; and
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(b) use any such Information, or any part thereof, for any purpose
except as is specifically contemplated within this Agreement.
Licensee shall be responsible to ensure any person,
corporation or entity to which it has disclosed any
Information or trade secrets complies with the terms of this
Agreement.
The Company shall keep confidential and not disseminate, discuss or
provide to any competitor or client of Licensee any information regarding
business, financial data, this agreement, technical data, database, computer
programs, marketing plans and information provided by Licensee, or any new
developments by Licensee related to Products, without prior agreement in writing
by Licensee.
9.2 Trade Secrets
Upon the termination of this Agreement for any reason whatsoever, the
Licensee shall return all data, prospectuses, advertising, Information, and all
information concerning the Products (including all software, copies of test
results and other data accumulated), and the Licensee shall not ma farther use
of any of the materials or technical information, nor disclose or use such
materials or Information for its own account or on behalf of any other person or
entity. Upon termination of this Agreement for any reason, the Licensee shall
discontinue the use of the Company's trade name, trademarks, labels, copyrights,
patents, and other advertising media and remove all signs and displays relating
thereto. Upon termination, of the Agreement for any reason, the Company shall
return all property and confidential information, all data, prospectuses, which
are the property of Licensee to Licensee, and shall make no further use of those
materials.
10. INTELLECTUAL PROPERTY
No rights are granted hereunder to Licensee under any patents,
copyrights, information, trademarks or other intellectual property rights except
as are incidental only to the sale of Products by the Licensee and the right to
use such Products by the Licensee's customers. Whenever the Licensee shall make
reference to its relationship with the Company, whether in advertising or
otherwise, the Licensee shall describe its relationship only as a licensee of
the Products and partner as potential co-developer under the Research and
Development Agreement. Any other use by the Licensee of the Company's trade
name, trademarks, or any other trade names or trademark associated with the
Products must be approved in advance in writing by a duly authorized officer of
the Marketing Committee. The Licensee shall not use any trademark-or trade name
of the Company or any variation thereof, alone or in combination with other
words, in connection with any product which has not been supplied by the
company, or as a part of or in connection with the Licensee's corporate or
company name without Company's prior written approval. The Licensee shall not
register the Company's trade name or trademarks or any other trade names or
trademarks associated with the Products in the Territory or elsewhere. All data
generated from use of the Products and any suggestions, improvements,
enhancements, derivative works or modifications made to any of the Products or
any part thereof made by the Company shall be the property of the Company
including any copyright, patent or other intellectual property rights therein.
Licensee shall sign such documents, assignments or agreements as the Company may
require to protect the Company's rights therein, and any such improvements or
enhancements shall be considered subject to this License Agreement.
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Any improvements or enhancements to any Product of Information, which
have been developed during the terms of the Agreement by the Company shall be
owned by the Company, and Licensee shall have a limited free irrevocable license
in the Territory for the term of the Agreement.
Any improvements or enhancements to any Products or Information, which
are developed jointly by Company and Licensee, shall be owned by the Company and
Company agrees to grant Licensee a perpetual, irrevocable royalty-free license
for same. Company and Licensee agree to share costs and Licensee shall have the
right to file for protection at its own cost in any countries where Company
elects not to file.
Any improvements or enhancements to any Products or Information, made
solely by Licensee shall be the property of Licensee and Licensee will grant to
Company a non-assignable free, irrevocable royalty-free license for the term of
this agreement. Nothing herein implies to Licensee any rights in any
intellectual property of the Company.
For joint improvements or enhancements Company and Licensee must agree
in writing on any license or extension of license to third parties, except for
licenses to end users. The Company will keep track of all such licenses and
extensions.
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11. LIMITED WARRANTY AND LIMITATIONS
11.1 The Company provides to its customers only those warranties set out in
the Company's form of agreements, attached as Schedule "E", Terms and
Conditions", and subject to the limits on liability set out in such agreements.
On a case by case basis the Company may provide other warranty terms or other
limits on liability but only if previously authorized by the Company in writing.
NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE.
11.2 The Company shall not have any liability of any kind under this
contract unless Licensee notifies the Company of any claimed defect within the
warranty period specified in the Company's form of agreement as measured from
the date of delivery. If a Product is to be returned to the Company, written
authorization must be obtained from the Company, and the Company's shipping
instructions must be followed. If the claimed defect is a result of misuse,
mishandling, abnormal conditions of application or storage, or the result or
unauthorized alteration, the cost of replacement and all related expenses shall
be borne by the Licensee. "Normal conditions" shall be practical and reasonable
as defined by the Company. Any Products returned to the Company for replacement
or refund shall become the property of the Company.
11.3 The Licensee, its agents, and employees shall not make any statement,
representation, warranty, or advertisement concerning the Products which exceed
in scope or are different in meaning from the limited warranty set forth in
Section 11.1. The Licensee shall indemnify and hold the Company barm less
against any claims, liability, costs, and expenses of any nature which the
Company may incur as a result of any such activities.
12. MODIFICATION OF PRODUCTS AND LABELING
The Licensee shall not, without the prior written consent of the
Company and the Marketing Committee in each instance obtained, modify the
Products or any part thereof or modify, remove, cover, or add to the labels
affixed by the Company to the Products. If requested by the Licensee, the
Company shall affix foreign translations of labels to Product containers, and
the Licensee shall reimburse the Company for all reasonable expenses incurred as
part of such relabelling.
13. PATENT INFRINGEMENT
If a patent infringement action is commenced or threatened against the
Company as to one or more of the Products, and the Company elects to discontinue
the sale of any such Products in any part of the Territory, the Licensee shall
discontinue its efforts to sell such Products in any such part of the Territory
immediately upon receipt of written notice thereof from the Company.
Company warrants that to the best of its knowledge Products do not
infringe any patent, and if found in breach of this warranty in respect of one
or more of the Products, the Company shall assist in Licensee's defence and pay
fees and expenses incurred during prosecution, and assume eventual consequences
provided that Licensee provides all assistance and cooperation Company may
require in the defense of the action or claim and Company has sole control of
the defense and all related settlement negotiations.
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14. TERMINATION
14.1 The Company may terminate this Agreement by giving ninety (90) days
written notice in the following events:
(a) Licensee has ceased to function as a going concern or conduct
its operations in the normal course of business as a Licensee;
(b) Licensee enters into suspension of payments, or commences or
becomes the subject of, any action in relation to bankruptcy,
insolvency, reorganization, dissolution, or winding up;
(c) Licensee has become insolvent;
(d) Licensee has made a general assignment for the benefit of
creditors;
(e) Licensee has attempted to assign, convey, or other-wise
transfer in whole or in part any of Licensee's rights
hereunder to any third party without the Company's prior
written consent based on Licensee's ft" true, and correct
disclosure of the proposed transaction to the Company;
(f) any material change in the general management, ownership, or
control including sale, transfer, or relinquishment by
Licensee of any substantial interest in the ownership of the
business to be carried on by Licensee under this Agreement,
unless such changes are approved in advance and in writing by
the president of the Company;
(g) conviction of Licensee or any principal officer or manager of
Licensee for any crime tending to affect adversely the
ownership or operation of the business;
(h) Licensee provides falsified data or information to the
Company,
(i) Licensee breaches any of the obligations under Sections 9.1 or
9.2 respecting Information or Section 10 respecting
intellectual property. The Licensee hereby acknowledges that
ninety (90) days is a reasonable and adequate period of notice
under the circumstances, including the extent of the
expenditures, investments, and commitment made and to be made
by Licensee under this Agreement; or
(j) Company and Licensee fail to agree on reasonable sales targets
and minimum marketing efforts, prior to each calendar year, or
Licensee fails to accomplish the minimum marketing effort in
any part of the Territory in any calendar year.
14.2 In the event either party commits a material breach of this Agreement
and such party fails to remedy such default within ninety (90) days of receipt
of written notice thereof from the opposite party, the party giving such notice
may, at any time thereafter upon written notice, terminate this Agreement. The
Licensee hereby acknowledges that ninety (90) days is a reasonable and adequate
period of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made by Licensee under
this
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Agreement Material breach by the Company referred hereto could include the
Company being unable to supply the Licensee within a reasonable time with
Products, or ceasing activities as set out in the Escrow Agreement attached as
Schedule "G". The Company and Licensee agree to enter into attached Escrow
Agreement and Company will train Licensee to use SoundPrint(R) software for
analysis, and to complete installation of products.
14.3 In the event of termination of this Agreement, whether upon the
expiration of the term of this Agreement or pursuant to the provisions of
Section 14.1 or 14.2, the Company shall not be liable to the Licensee for
compensation, reimbursement, or damages on account of the loss of prospective
profits on anticipated sales, or on account of expenditures, investments,
leases, employee termination pay, or other commitments or expenses relating to
the business or goodwill or the Licensee.
14.4 Termination of this Agreement shall not relieve or release the Licensee
from any payments which the Licensee may owe the Company under the terms of this
Agreement, including without limitation, payments for Products delivered to the
Licensee.
14.5 Acceptance by the Company of any orders from the Licensee after
termination of this Agreement shall not constitute a renewal of this Agreement
or a waiver of the right of the Company to treat this Agreement as terminated.
14.6 Notwithstanding anything contained herein to the contrary, Sections 9, 10,
11, and 13 of this Agreement shall survive termination of this Agreement and
shall remain in full force and effect on conditions as set forth in those
sections for ten (10) years after contract termination.
14.7 Company agrees that for twelve (12) months following termination of the
Agreement, it will not enter into a License Agreement with a direct competitor
of Freyssinet.
15. RELATIONSHIP
Nothing herein shall constitute the Licensee as an employee or agent of
the Company, nor the legal representative of the Company for any purpose or
reason not set forth herein. The Licensee does not have the authority to assume
or create any obligation, express or implied, on behalf of or in the name of the
Company, or to bind the Company in any man r whatsoever, except as authorized in
writing by the Company. The Licensee shall be solely responsible for the
operations of its business and all costs incurred in such 'operations, solely
responsible for any injury, liabilities, or damage incurred in the conduct of
its business, for complying with all laws and regulations of the nation, state,
and political subdivision in which it transacts its business, and shall bear all
expenses in connection therewith. It is the express intent of the parties,
pursuant to their right to freedom of contract, that this Agreement shall govern
the obligations of each to the other and the right of each resulting from such
relationship and that no Ordinance, Regulation or any other law purporting to
alter the relationship between the Company and the Licensee, presently in force
or hereafter enacted, may apply to the rights and obligations of and between the
parties under this Agreement. The rights and obligations of the parties in the
event of termination of this Agreement have been separately bargained for, and
are intended by both parties to be in lieu of any fights or obligations arising
under any Ordinance, Regulation or any other law purporting to alter the
relationship of the parties.
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16. COMPLIANCE WITH LAW
The Licensee shall comply with all prevailing laws and regulations of
the Territory pertaining to the importation, distribution, sales, promotion, and
marketing of the Products in the Territory and in any manner otherwise
pertaining to performance by the Licensee of its obligations under this
Agreement. The Licensee shall accept and assume full responsibility for any and
all civil or criminal liabilities and costs that may be assessed as a result of
the Licensee's performance of Licensee's duties under this Agreement, and shall
hold harmless and defend the Company from and against any and all fines,
damages, levies, costs, and judgment which the Company may be required to pay as
a result of the Licensee's performance of its duties thereunder in violation
thereof.
17. MISCELLANEOUS PROVISIONS
17.1 CONTROLLING LAW. This Agreement is made with reference to and shall be
construed in accordance with the law of England. The Parties acknowledge and
agree that this Agreement shall not be subject to the provisions of the United
Nations Convention on Contracts for the International Sale of Goods.
17.2 ARBITRATION. Any disputes or controversies arising under this Agreement
shall be determined by binding arbitration in accordance with the rules and
procedures for arbitration in London, England, which arbitration shall be
conducted in London, England. Each party shall bear its own costs of the
arbitration and shall pay one half cost of the costs of the establishment and
operation of the arbitration tribunal, until the Arbitrator decides which party
is responsible for arbitration costs.
17.3 NOTICES. All notices, request, demands, and other communications given
under this Agreement shall be in English and shall be in writing and shall be
deemed to have been duly given at the time of delivery, if personally delivered,
or seventy-two (72) hours after delivery to an appropriate courier service and
addressed to the parties at the addresses set forth beneath their respective
signatures or at such other address as a party may designate at any time in
writing by notice to the other in accordance with this Subsection 17.3.
17.4 WAIVER AND MODIFICATION. The failure of either party at any time to
require strict performance of any provision of this Agreement shall not in any
manner affect the right of such party at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement shall be deemed to be a release or affect any liability resulting from
such breach. No waiver of any nature, whether by conduct, course of dealing, or
otherwise, in any one or more instances shall be deemed to be or construed as a
continuing waiver of any such condition or breach, or as a waiver of any other
condition or of any other breach of any other term or covenant of this Agreement
17.5 SUCCESSORS IN INTEREST. This Agreement shall be binding upon and inure
to the benefit of the successors, heirs, assigns, and personal representatives
of the parties.
17.6 ASSIGNMENT. The Licensee may not assign or sublicense any of its rights
or obligations under this Agreement, nor shall the Licensee appoint or designate
any sublicensee of the Products, without the prior written consent of the
Company, which consent may be granted or
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withheld for any reason or for no reason in the sole and exclusive judgment of
the Company. Any attempted assignment, appointment, or designation without the
prior written consent of the Company shall be null and void.
This sub-clause does not apply to any assignment o any subsidiaries of Licensee,
in which the Licensee has at least twenty-five (25) percent ownership, in which
case both Assignor and Assignee remain and shall be liable for performance of
this agreement.
17.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement. There are no
representations, warranties, understandings, or agreements other than those
expressly set forth herein. Time is expressly declared to be of the essence of
this Agreement.
17.8 EXECUTION BY COUNTERPART. This Agreement may be executed separately or
fix1ependently in any number of counterparts, each and all of which together
shall be deemed to have been executed simultaneously and for all purposes to be
one agreement.
17.9 CAPTIONS. The respective captions of the Sections are inserted for
convenience of reference only and shall not be deemed to modify or otherwise
affect in any respect any of the provisions hereof.
Dated the day and year first above written.
PURE TECHNOLOGIES LTD.
Represented by: "James E. Paulson"
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James E. Paulson
Chairman
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Address: 1050, 340 - 12 th Avenue S.W.
Calgary, Alberta
Canada T2R 1L5
FREYSSINET INTERNATIONAL (STUP) SNC.
Represented by: "Jean Pierre Marchand-Arpoume"
----------------------------------
Jean Pierre Marchand-Arpoume
Chairman & Chief Executive Officer
Address: 78140 Velizy Villacoublay
10, rue Paul Dautier
France
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SCHEDULE "A"
EXCLUSIVE TERRITORY
France
Africa
Spain
Portugal
South America
Korea
Australia
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SCHEDULE "B"
NON-EXCLUSIVE TERRITORY
Canada
United States
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SCHEDULE "C"
EXCLUSIVE TERRITORY OF FUGRO
United Kingdom
Hong Kong
China (Mainland)
Macao
Singapore
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SCHEDULE "D"
OPEN COUNTRIES
All countries not included in Schedules A, B and C.
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SCHEDULE "E"
TERMS & CONDITIONS
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SCHEDULE "E" - TERMS AND CONDITIONS
SYSTEMS ACCEPTANCE
Within a reasonable time of installation of the Sensor Array and the Equipment,
Pure Technologies Ltd. ("Pure") will perform Pure's diagnostic tests to verify
operation of the System Successful conclusion of Pure's diagnostic tests
(established by Pure from time to time) shall constitute final acceptance of the
System by the Customer (the "Acceptance"). A description of Pure's diagnostic
tests is contained in Pure's SoundPrint(R) Installation and Operations Manual, a
copy of which can be made available for inspection by the Customer.
RISK OF LOSS
The risk of loss or damage in respect of the System shall pass to the Customer,
regardless of whether Acceptance of the System has occurred.
LICENSE OF SOFTWARE
In conjunction with the delivery of the Equipment, Pure shall install the
Software on the Equipment as provided in the contract documents, and Customer
shall pay the license fee to Pure (the "License Fee") which is included in the
Contract Sum. In consideration for the License Fee, the Customer obtains from
Pure or other applicable vendors or licensors, non-exclusive, non-transferable
licenses (the "License Agreements") to use, without right to sublicense, the
computer programs and modules which make up the Software at the Site.
The Customer agrees to be bound by the terms and conditions of each of the
License Agreements and to use such computer programs and/or modules only in
accordance with the terms of the applicable License Agreements.
SYSTEM MAINTENANCE
The Customer shall be responsible to maintain the System in good repair and
condition in accordance with Pure's and other vendor's written instructions and
specifications, or failing such instructions and specifications, in a manner
consistent with good industry practices. In addition to the foregoing Customer
shall:
1. use reasonable commercial efforts to keep the System secure from
vandalism, loss of power, environmental hazards (including lightning,
flood, water overflow) and other damage; and
2. if Pure is providing any ongoing maintenance or support to the System
or any part thereof, and during any warranty period, provide Pure with
such access to the System as may be reasonably requested by Pure.
MONITORING & TECHNICAL SUPPORT
If Customer wishes Pure to provide services monitoring the System and reporting
on incidents detected by the System, Customer and Pure will enter into Pure's
Technical Support Contract.
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CONFIDENTIAL INFORMATION
The Customer acknowledges that the System and associated documentation,
including without limitation, all Software, and the make up and configuration of
the Equipment and its method of operation, and die Training Documents and data,
constitute valuable confidential information of Pure and/or its licensors and
Customer shall maintain all confidential information as strictly confidential
and n6ther use nor discuss any of it without Pure's written approval. The
Customer also acknowledges the Software and all copies thereof, in whole or in
part, is and shall at all times remain the sole and exclusive property of Pure
and/or its licensors and that Pure has all right, title and interest therein
except for the limited rights to use the applicable Software provided in the
attached License Agreements.
The Customer agrees that wrongful disclosure of any of the confidential
information may cause irreparable harm to Pure and that Pure's remedies at law
may be inadequate and, therefore, Pure shall be entitled to obtain an injunction
to enforce the provisions of this Agreement.
The Customer acknowledges that all data generated by the System is subject of
copyright protection and is or shall be owned exclusively by Pure and/or its
licensors. The Customer shall have an irrevocable right and license to retain
and use a copy of data generated from the System (the "Data") for the Customer's
application in regards to the operation and maintenance of the Customer's
strictures in which the Equipment is situated, which right and license shall
include the right to disclose such information and results to its agents, and
employees.
Pure shall not disclose the name of the site, or release information about data
or reports, which can be identified with the site, without the authorization of
the Customer. Pure reserves the right to publish and distribute data and reports
in a generic form, which cannot be specifically identified with the site,
without the authorization of the Customer.
The obligations of the parties contained in this Article shall survive the
termination of this Agreement.
WARRANTY
Pure warrants that the Customer shall acquire good and clear title to the
Equipment, free and clear of all liens and encumbrances except for the security
interest retained by Pure until such time as the Purchase Price is paid by
Customer to Pure in full. To the extent it is able, Pure shall convey to the
Customer all manufacturer's warranties pertaining to the Equipment upon delivery
of the Equipment to the Customer,
Pure shall, to the extent it is able, provide to the Customer the Software
related warranties for the software it licenses to Customer. Pure warrants that
for twelve months after Acceptance the System:
(a) will substantially perform those functions described in Pure's
SoundPrint Installation and Operations Manual, provided that
notwithstanding anything to the contrary contained in this
Agreement, the System's operation may be interrupted and is
net warranted to be error free; and
(b) is designed to monitor certain acoustic emissions from the
Site, soma of which may be identified as post-tensioned wire
failures. The parties acknowledge that while most wire breaks
generate at least enough energy to be recorded by the System,
if wire breaks do not exhibit the properties for which the
System has been
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designed, then the wire breaks may not be detected or recorded
by the System. The parties also acknowledge that any form of
background or other noises, or any continuous noise generation
including, without limitation, construction activities may
affect the ability of the System to detect and/or classify
events and may mask wire breaks so that they cannot be
detected or recorded by the System.
The above-referenced warranties are applicable only if the System is used and
maintained strictly in accordance with Pure's Installations and Operations
Manual, and repaired solely by Pure or its authorized agents in the manner
provided herein, and such warranties are available only during such times as the
System is available for use.
The Data must be monitored and processed to provide meaningful information to
the Customer. The parties acknowledge that the placement of the sensors required
by the System is crucial to functionality and any movement or interference with
any such sensors without Pure's written consent will void any warranties
provided herein in respect of the functionality of the System. Pure acknowledges
that various monitoring agencies may provide monitoring services under their own
terms and if any such agencies am used Customer acknowledges that Pure is not
responsible for the services provided by any such monitoring agency. Pure is not
providing engineering services. Pure suggests the Customer have the Customer's
professional engineering advisors available to review any reports provided from
the System and other issues concerning the structural integrity of the Site. The
Customer and/or its engineering or other advisors may use the data generated by
the System including, without limitation, the Data, solely to seek to classify
events recorded by the System for User's internal purposes in regards to the
operation and maintenance of the Customer's structure in which the Equipment is
situated. All Data shall become the property of Pure.
Notwithstanding anything to the contrary contained in this Agreement, or any
Schedules, under no circumstances does Pure suggest, represent or warrant that
the use of the System or accompanying materials will lead to any specific
result, consequence or situation for the Customer or is a substitute for use of
other physical structural integrity methods or inspections. The parties
acknowledge that the System requires the Customer to exercise prudent and
reasonable judgement in interpretation of the results of events recorded by the
System, including, without limitation, the Data. The Customer should continue to
look to its professional engineering advisors for advice on the past, present
and future structural integrity of the Site.
LIMITATION OF WARRANTY
Other than the specific warranties provided above, the System, Software and
Equipment and accompanying materials are provided "as is" without warranty of
any kind either expressed or implied. The complete risk as to the quality and
performance of the System or any of its components is with the Customer.
Notwithstanding anything to the contrary contained herein, Pure makes no
warranty or representation that the functions contained in the System will meet
the Customer's requirements, or that the operations of the System will be
uninterrupted or error-free or that any System defects are correctable. The
foregoing warranties are in lieu of all other warranties expressed or implied,
including, but not limited to, the implied warranties of merchantability and
fitness for a particular purpose. No oral or written information or advice given
by Pure, its dealers, distributors, agents or employees shall create a warrant
that in any way increases the scope of this limited warranty.
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The warranties provided above shall be void if the Customer permits any party
other than Pure to repair, maintain or alter the System or any part thereof in
any manner, or if the Customer or any other party deals with the System in any
way other than as expressly provided for herein.
DEFAULT
A material breach or default by a party ("Defaulting Party") of any terms,
conditions, warranties or representations provided in this Agreement shall give
rise to any event of default ("Default"). The other party may, at its option,
terminate this Agreement upon giving the Defaulting Party notice in writing of
the specific details of the alleged Default and, where the Defaulting Party has
not remedied such Default within thirty (30) days of receipt of such notice, all
amounts outstanding hereunder from Customer to Pure shall immediately be due and
payable on Default of Customer which is not cured in the manner required by this
Section.
LIMIT OF LIABILITY
Notwithstanding anything to the contrary contained herein, in no event shall
Pure be liable to the Customer for any lost profits, lost savings or other
incidental, special or consequential damages arising out of the use, misuse or
inability to use the System, including without limitation, the Software or
Equipment, whether such damages are sought by the Customer or any other party,
even if Pure has been advised of the possibility of such damages. Pure shall not
be liable for any damages caused by delay in delivery, instalation, setup,
testing or furnishing of the System or any of its components under this
Agreement.
Notwithstanding anything to the contrary herein, Pure's maximum liability to the
Customer for any cause, including, without limitation, whether at law, in
equity, it under contract, and including, without limitation, any breach or
violation of the provisions of this Agreement, or any agreement entered into in
conjunction with this Agreement, including, without limitation, the License
Agreements, shall be a cumulative maximum liability for all incidents or events
calculated as equal to the annual Technical Support and Service Fee (if
applicable).
GOVERNING LAW
This Agreement shall be construed in accordance with, and the rights of, the
parties governed by the laws in force in the Province of Alberta, Canada, and
the parties agree to irrevocably attorn to the jurisdiction of the courts of
Alberta and further agree that any proceedings shall only be taken in respect of
this Agreement in such courts.
FORCE MAJEURE
Neither party hereto shall be liable to the other, for any failure of or delay
in the performance of its obligations hereunder, nor be deemed to be in breach
of this Agreement if such failure or delay has arisen from "Force Majeure". For
the purpose of this Agreement, "Force Majeure" shall mean any cause not
reasonably in the control of Pure or Customer as the case may be, including,
without limitation, acts of God, strike, lockouts, or other industrial
disturbances, acts of the public enemy, wars, blockades, insurrections, riots,
epidemics, landslides, earthquakes, fires, storms, floods, high water, washouts,
inclement weather, power failure, telecommunications disruption or failure,
equipment failure, orders or acts of civil or military authorities, civil
disturbances, or explosions.
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Where either party hereto is prevented from carrying out its obligations
hereunder due to Force Majeure, such obligations so far as they are affected by
Force Majeure shall be suspended during the operation of any such event of Forte
Majeure. The party prevented from carrying out its obligations hereunder due to
Force Majeure shall where practical, make reasonable efforts to give notice of
the occurrence of such Force Majeure to the other party hereto.
ASSIGNMENT AND AMENDMENT
Pure shall have a right to assign this contract without the Customer's consent
and Customer hereby accepts such assignments and waives signification of the act
of assignment and the delivery of a copy thereof. This Agreement is assignable
by the Customer providing that the Customer has previously secured Pure's
written consent which consent shall not be unreasonably withheld. This Agreement
will, in all other respects, be binding upon the parties and their respective
successors and assigns. Only a written instrument signed by both of the parties
may amend this Agreement.
TERMINATION
This Agreement may be canceled or terminated by mutual written consent of the
parties. If this agreement is terminated then Customer shall cease all use of
the Software and shall return all copies of the Software and documentation to
Pure within fifteen (15) days and deliver to Pure written certification that all
such copies have been returned.
All obligations herein regarding confidentiality and nonuse of Confidential
Information and payment of moneys shall survive any termination of this
Agreement.
Upon any termination of this Agreement for any reason or cause, the parties
hereto shall take such reasonable steps to effect an orderly transition of the
relationship between them and seek to minimize the disruption arising from such
termination.
INDEMNIFICATION
Subject to Limits of Liability, Pure will defend the Customer against a claim
that the entire System, as furnished, and if used strictly in accordance with
the written instructions provided by Pure, infringes a valid, enforceable
Canadian patent or copyright and Pure will pay resulting costs, damages and
attorney's fees finally awarded, provided that:
(a) the Customer promptly notifies Pure in writing of the claim or
threatened claim.
(b) the claim is solely based on the Customer's use of the System
as furnished and used strictly in accordance with Pure's
written instructions;
(c) the Customer provides all assistance and co-operation Purr may
reasonably require in the defense of the action or claim; and
(d) Pure has sole control of the defense and all related
settlement negotiations.
If such a claim occurs, Pure may, at its sole option, either:
(e) attempt to make the System non-infringing; or
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(f) attempt to obtain a license to use the rights from the party
complaining of the unauthorized or unlawful use; or
(g) provide the Customer with a generally similar system; or
(h) refund to the Customer the charges or fees attributable to the
module in relation to which the infringement is complained of
and require the Customer to cease use of the infringing module
and return die infringing module to Pure.
Pure shall have no obligation to defend the Customer or to pay costs, damages or
attorney's fees for any claim based on any acts of the Customer which exceed the
terms of the license granted to the Customer by this Agreement or are based upon
modifications created by the Customer or on its behalf or, from combination of
the System or any part thereof with any equipment, software, processes or
technology of others or from use of the System other than in strict accordance
with Pure's written instructions therefore.
The provisions set out in this section state the entire obligation of Pure with
respect to infringement of any industrial or intellectual property rights.
Customer hereby assumes liability for and agrees to indemnify and save harmless
Pure, its agents, employees, officers and directors from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs and expenses, including legal expenses (on a solicitor and his own client
basis) of whatsoever kind and nature, imposed on, incurred by or asserted
against Pure, its agents, employees, officers or directors, in any way relating
to or arising out of or in connection with this Agreement, the System and the
use thereof including the manufacture, selection, delivery, possession, use and
operation and recovery of claims under any insurance policy relating thereto. In
addition, Customer shall, on the written demand of Pure, pay to Pure the amount
as determined by Pure as being Pure's loss of profits together with any costs of
Pure, including the cost of redeployment of funds and internal costs, incurred
by Pure, in any way relating to or arising out of any refusal by Customer to
perform its obligations hereunder.
DISPUTE RESOLUTIONS
Disputes under this Agreement shall be resolved using the procedure set out in
the Alberta Arbitration Act.
LIMITATION OF ACTIONS
Pure and the Customer agree that if a dispute resolution mechanism is not
successful in resolving a dispute under this Agreement or any Schedule, any
legal action must be commenced within two years of the date of the complained of
cause of action.
NOTICES
All notices provided for hereunder shall be in writing and shall be deemed to be
given:
(i) when delivered to the individual, or to an officer of the
relevant party to which the notice is directed, or
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(j) five (5) days after the same has been deposited in the Canada
post mail, sent certified or registered mail with return
receipt requested, postage prepaid and addressed as provided
in this Section, or
(k) when delivered by an overnight delivery service with receipt
acknowledged and with all charges prepaid by the sender
addressed as provided in this Section. Notices shall be
directed as follows:
(i) if to Pure, at the address for Pure noted at the
commencement of this Agreement;
(ii) if to Customer, at the address of the Customer noted
at the commencement of this Agreement, or at such
other place or places or to such other person or
persons as shall be designated by notice by any party
hereto.
EFFECT OF WAIVER
No delay or omission to exercise any right or remedy accruing to Pure upon any
breach or default of Customer will impair any such right ore remedy or be
construed to be a waiver of any such breach of default, nor will a waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval on
the part of Pure or any breach or default under this Agreement or of any
provision or condition hereof, must be in writing and will effect only to the
extent in such specifically set forth. All remedies, either under this
Agreement, under any agreement entered into in conjunction with this Agreement,
or at law or in equity or otherwise afforded to Pure, are cumulative and not
alternative.
CUSTOMER'S WAIVER
To the extent not prohibited by law or statute, Customer hereby waives the
benefit of all provisions of all applicable sale of goods, conditional sales,
regulatory credit, seizure, personal property security and other statutes and
regulations made thereunder in any and all jurisdictions of the U.S. and Canada,
which would in any manner affect, restrict or limit the rights of Pure
hereunder. Customer also waives and assigns to Pure the right of any statutory
exemption from execution or otherwise and further waives any right to demand
security for costs in the event of litigation.
ENUREMENT
Subject to the terms hereof, this Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
MISCELLANEOUS
The application to this Agreement of the United Nations Convention on Contracts
for the International Sale of Goods, as well as the application of domestic
legislation which has, or purports to have, adopted the Convention into law for
the jurisdiction concerned are hereby excluded.
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In case of conflict with the License Agreement, the License Agreement shall
supersede this Schedule "E".
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SCHEDULE "F"
SOUNDPRINT(R) SITE LICENSE AGREEMENT
THIS AGREEMENT made and entered into by and between Pure Technologies Ltd., an
Alberta corporation, ("Pure"), having its principal office at 1050, 340 - 12
Avenue SW, Calgary, Alberta T2R IL5 Canada, and FREYSSINET INTERNATIONAL (STUP)
SNC, ("Licensee") having its principal office at 78140, 10 rue Paul Dautier,
Velizy Villacoublay, France, is attached to and shall form part of the License
Agreement to which this Site License Agreement is attached as a Schedule.
Pure and the Licensee agree to the following term and conditions:
1. SOFTWARE OWNERSHIP
1.1 Pure and its licensors shall retain full and complete title to
the computer programs, data and related materials howsoever
stored and any accompanying materials (all called "Software"
in this Agreement) and all updates and subsequent copies of
the Software regardless of the media or form in which the
copies may exist, including copies made in violation of the
terms of this agreement.
2. LICENSE GRANT
2.1 In consideration of the payment of the annual Site License Fee
described on Schedule "1" hereto by the Licensee to Pure, Pure
grants to the Licensee, a limited non-exclusive, revocable,
limited license and right to use the Software solely to
monitor the data developed by SoundPrint(R) Data Acquisition
Systems at the sites described on Schedule "1" hereto ("Site")
and process the such data solely to seek to classify events
recorded by the SoundPrint(R) Data Acquisition System for
internal non-public purposes and only to report the results of
such processing to the end user, ("Manager/Owner"), of the
Sites described on Schedule "1" hereto provided that Pure may
monitor such data and reports to verify operation of the
Software. The Licensee may use the Software only on a single
computer at a single location. All rights not expressly
granted to the Licensee are reserved to Pure.
Additional sites may be added to this Site License at any time by letter from
Licensee to Pure containing information about the new site, including location,
description and annual Site License Fee, countersigned by Pure and attached as a
part of Schedule "1".
2.2 Pure reserves the rights to make telecommunication connection
to the Software and data from the site to periodically seek to
verify compliance by the Licensee with the terms of this
Agreement. The Software includes confidential information,
which the Licensee agrees to keep strictly confidential and
neither disclose nor use for any other purpose other than the
limited use of the Software in accordance with this Agreement.
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3. RESTRICTIONS ON USE RESTRICTIONS ON USE
3.1 The licensee shall not:
(a) electronically transfer or transmit
the Software to any other computer
over a network or similar system;
(b) make or distribute any copies of
the Software;
(c) modify, adapt, translate, reverse
engineer, decompile or disassemble
the Software or create derivative
works based on the Software.
3.2 All data generated from the site using the SoundPrint(R) Data
Acquisition Software ("Data"), whether in raw or processed
form, shall be the sole property of pure including all
copyright and other rights therein. The Licensee shall and
does hereby, if applicable, assign all such rights to Pure. If
required, a royalty-free non-assignable license to use the
data will be given to the Licensee and end-user.
4. RESTRICTIONS ON ASSIGNMENT OR TRANSFER
4.1 The Licensee shall not assign, rent, lease, sell sublicense or
otherwise transfer or grant any rights in or to the Software
to another party without the prior written consent of Pure.
Pure will require that any permitted assignee be bound by all
the terms and conditions of this Agreement.
4.2 The license granted hereunder is effective for a period of one
(1) year and may be extended for a further one (1) year term
upon payment to Pure of the annual License fees described on
Schedule "1". The license granted hereunder will automatically
terminate if the Licensee fails to comply with any term of
this agreement or the License Agreement with Pure, or if
Licensee fails to comply with any term of any agreement with
Owner/Manager. Upon termination the Licensee shall immediately
destroy the Software, all copies thereof or return the same to
Pure at the Licensee's expense.
4.3 From time to time Pure and/or its distributor may make updates
of the Software or provide additional material of interest to
the Licensee including information and, in some cases
promotional pricing, on complementary products. So long as the
Licensee is not in default or this Agreement or its License
Agreement with Pure to which this is attached, the Licensee
shall be entitled to receive such information and updates from
time to time.
4.4 Pure will add Licensee's name to software pages, screens and
printing.
5. LIMITED WARRANTY AND DISCLAIMER
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5.1 Pure warrants that (1) the media on which the Software is
furnished under normal use will be free from defects; and (2)
if installed on equipment as provided on Schedule "1" and used
in accordance with Pure's and such other vendor's express
instructions, the Software will substantially perform those
functions described in Pure's documentation for the Software
for ninety (90) days from the date of delivery of the Software
to the Licensee by Pure.
5.2 The licensee must notify Pure of any defects in the media or
Software by giving written notice to Pure.
5.3 Other than the specific warranties provided above, Software
and accompanying materials are provided "as is" without
warranty of any kind, either expressed or implied. The
complete risk as to the quality and performance of the
software is with the licensee. Pure makes no warranty or
representation that the functions contained in the software
will meet the Licensee's requirements or that the operations
of the Software will be uninterrupted or error free or that
any software defects are correctable. The foregoing warranties
are in lieu of all other warranties expressed or implied,
including but not limited to, the implied warranties of
merchantability and fitness for a particular purpose. No oral
or written information or advice given by pure, its dealers,
distributors, agents or employees shall create a warranty that
in any way increases the scope of this limited warranty. The
duration of any implied warranty shall be limited to the
duration of the limited warranties set forth herein.
5.4 Neither Pure nor the Software provide any professional
engineering services to the Licensee, the Owner/Manager of the
site, or its agents.
5.5 The SoundPrint(R) monitoring Software, together with certain
hardware and equipment ("System") if properly installed at the
site and if properly used and during such times as the System
is available detects certain energy transmissions through
concrete or steel. Most wire breaks generate at least enough
energy to be recorded by the System. If wire breaks do not
exhibit certain properties they may not be detected or
recorded by the System. Construction activities and other
continuous noise generation may affect the ability of the
System to detect and/or classify events. Sufficient background
or other noise may mask wire breaks so dud they can not be
detected or recorded by the System.
5.6 The Data recorded by the System must be monitored and
processed to provide meaningful information to the Site
Manager/Owner. In general events which the Software is able to
record are classified as either: (a) a probable wire break,
(b) a possible wire break, or another event. The Licensee
and/or the Manager/Owner's engineering or other advisors may
use the information presented by the Software to seek to
investigate the events recorded by the System. Where the
Licensee or the Owner/Manager
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remotely monitors the System the Licensee is responsible to
make arrangements for the secure and reliable transmission of
all Data.
5.7 The Licensee should exercise reasonable judgment in the use of
the software and accompanying materials. Under no
circumstances does Pure suggest, represent or warrant that the
use of the Software or accompanying materials will lead to any
specific result, consequence or situation for the licensee or
is a substitute for use of other physical structural integrity
methods or inspections. The Software requires Licensee to
exercise prudent and reasonable judgement in interpretation of
the results of the Software. The Licensee shall not release
any final reports without giving Pure a prior opportunity to
review and approve such reports.
5.8 The Licensee is responsible to make its own arrangements with
the Owner/Manager in respect of reporting on the results of
monitoring the Site and payment for those services.
6. REMEDIES
6.1 Pure's and its licensor's entire liability and licensee's
exclusive remedy shall be limited to:
6.1.1 With respect to defects in the media or other
material during the warranty period, Pure will
replace the defective media if returned to Pure at
the Licensee's expense for return of such media. This
warranty shall not apply if the Software has been
damaged by negligence, accident, improper or
unreasonable use, or any other cause unrelated to
defective materials or workmanship;
6.1.2 In the event that any other claim related to the
performance or non-performance by Pure in way
concerning the Software under this Agreement is made
by the licensee or someone claiming through the
Licensee, then the sole and exclusive remedy shall be
to request Pure to use reasonable efforts to seek to
repair the Software; and
6.1.3 In all cases the maximum compensation or damages
which the Licensee or anyone claiming through the
licensee shall be entitled to claim and receive shall
be limited as set forth in this Section below. Pure
and its licensor's aggregate maximum liability and
the Licensee or anyone claiming through the licensee
's maxi um aggregate claim for damages of any kind
shall be a refund of the license fee actually paid
for the Software in the first year of this Agreement.
In no event shall Pure be liable to Licensee or any
other person for any direct, special, indirect,
incidental, or consequential damages arising our the
use of, or inability to use, any Software, even if
Pure was previously advised of the possibility of
such damages, or for any other claim by Licensee or
any other person.
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7. GENERAL PROVISIONS
7.1 This Agreement shall be construed in accordance with, and the
rights of the parties governed by, the laws in force in
England, and the parties agree to irrevocably attorn to the
jurisdiction of the courts of England and further agree that
any proceedings shall only be taken in respect of this
Agreement in such courts.
7.2 Neither party hereto shall be liable to the other, for any
failure of or delay in the performance of its obligations
hereunder nor be deemed to be in breach of this Agreement, if
such failure or delay has arisen from "Force Majeure". For the
purpose of this Agreement "Force Majeure" shall mean any cause
not reasonably in the control of Pure or Licensee as the case
may be, including, without limitation, acts of God, strikes,
lockouts, or other industrial disturbances, acts of the public
enemy, wars, blockades, insurrections, riots, epidemics,
landslides, earthquakes, fires, storms, floods, high water,
wash outs, inclement weather, power failure,
telecommunications disruption or failure, equipment f4ilure,
orders or acts of civil or military authorities, civil
disturbances, or explosions. Where either party hereto is
prevented from carrying out its obligations hereunder due to
Force Majeure, such obligations so far as they are affected by
Force Majeure shall be suspended during the operation of any
such event of force majeure. The party prevented from carrying
out its obligations hereunder due to Force Majeure shall where
practical, make reasonable efforts to give notice of the
occurrence of such Force Majeure to the other party hereto.
7.3 All notices provided for hereunder shall be in writing and
shall be deemed to be given: (a) when delivered to the
individual, or to an officer of the relevant party to which
the notice is directed, or (b) five (5) days after the same
has been deposited in the Canada post mail, sent certified or
registered mail with return receipt requested, postage prepaid
and addressed as provided in this Section, or (c) when
delivered by an overnight delivery service with receipt
acknowledged and with all charges prepaid by the sender
addressed as provided in this Section, or (d) when sent by
facsimile on the next business day following the day the
facsimile is sen4 provided an electronic confirmation of
complete transmission to the recipient's facsimile number is
received by the sender. Notices shall be directed as follows:
(a) if to Pure, at the address for Pure noted at the
commencement of this Agreement, (b) if to Licensee, at the
address of the Licensee noted at the commencement of this
Agreement, or at such other place or places or to such other
person or persons as shall be designated by notice by any
party hereto.
7.4 No delay or omission to exercise any right or remedy accruing
to Pure upon any breach or default of Licensee will impair any
such right or remedy or be construed to be a waiver of any
such breach of default nor will a waiver of any single breach
or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit,
consent or
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approval on the part of the Pure of any breach or default
under this Agreement or of any provision or condition hereof,
must be in writing and will effect only to the extent in such
specifically set forth. All remedies, either under this
Agreement, under any agreement entered into in conjunction
with this Agreement or at law or in equity or otherwise
afforded to Pure, are cumulative and not alternate.
7.5 Subject to the term hereof this agreement shall entire to the
benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, successors,
assigns and legal representatives.
7.6 It is agreed by and between the parties hereto that whenever
the context of this Agreement so requires, the singular number
shall include the plural and vice versa, and that words
importing the masculine gender shall include the feminine and
neuter genders, and that in case more than one person or
entity is named as Licensee, the liability of such persons or
entities shall be joint and several.
7.7 Licensee agrees to do all things and execute all documents as
may reasonably be required by Pure in order to give effect to
this Agreement including but not limited to the execution of
financing statements in order to effect such registration as
may be necessary in order to protect Pure's interest.
7.8 In the Event of a Termination of this Agreement by Pure shall
give 90 days advance notice in writing to Licensee of such
termination.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed this Agreement on the date first written below.
Executed at Calgary, Alberta, Canada this _____ day of _____________, 2000.
PURE TECHNOLOGIES LTD.
Per: _______________________________
Per: _______________________________
FREYSSINET INTERNATIONAL (STUP) SNC.,
Per: _______________________________
Per: _______________________________
15
<PAGE>
SOUNDPRINT(R) SITE LICENSE AGREEMENT
SCHEDULE "1"
SITE LICENSE FEE
Licensee shall pay to Pure a fixed price, to be agreed upon on a project by
project basis, as an annual license fee to use the Software as provided in this
Agreement. This license fee payment shall be exclusive of any applicable taxes
or similar levies or charges imposed by any governmental or similar entity and
shall be payable within thirty (30) days of the anniversary date of this License
Agreement. Failure to pay the license fee shall result in termination of the
rights and license granted under this Site License Agreement.
THE SITE
The Software may only be used to monitor data generated using the SoundPrint(R)
Data Acquisition System (the "Data") and which Data arises solely from the
physical location known to the parties as: ______________at _____________. The
Software may not be used to monitor any other data generated from any other
system or source nor to monitor any data generated by any SoundPrint(R) Data
Acquisition System at any other location, with the exception of additional sites
added by letter agreement as an appendix to this Site License Agreement.
<PAGE>
SCHEDULE "G"
ESCROW AGREEMENT
THIS AGREEMENT made as of the ___ day of ________ 1999 by and Between:
Freyssinet International (STUP) SNC., a body corporate organized and existing
under the laws of the France and having an office at 78140 10 rue Paul Dautier,
VELIZY VILLACOUBLAY, FRANCE, (hereinafter referred to as "Licensee") and PURE
TECHNOLOGIES LTD, a body corporate organized and existing under the laws of the
Province of Alberta, with its principal offices located at 1050, 340 - 12 Avenue
SW, Calgary, Alberta T2P IL5 Canada (hereinafter referred to as "Pure") and the
law firm of Bennett Jones, 4500 Bankers Hall East, 855 - 2 Street SW, Calgary,
Alberta T2P 4K7(hereinafter referred to as "Escrow Agent").
WHEREAS:
A. Pure and Licensee have entered into a Certain License Agreement on -
pursuant to which Pure agrees to enter into this Escrow Agreement with Licensee;
B. In order to provide comfort to Licensee, Pure has agreed to provide
Licensee with access to certain very confidential source code for the SoundPrint
computer software for use only by Licensee on the happening of certain events
specified herein;
C. Pure has agreed to deposit a copy of the Escrow Materials as
hereinafter defined in escrow with an escrow agent who agrees to act as Escrow
Agent under the terms of this Agreement.
THEREFORE IN CONSIDERATION of the mutual covenants herein contained and
of other good consideration (the receipt and sufficiency of which is hereby
acknowledged by the parties), the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 In this Agreement including this section,
(a) "Deposit Date" means the date of execution of this
agreement and each anniversary such date occurring
thereafter during the term of this Agreement;
(b) "Documentation" means technical, user or other
documentation supporting use of the Source Code and
Updated Source Code;
(c) "Escrowed Materials" means a copy of the Source Code,
Updated Source Code, Documentation and the Updated
Documentation to be deposited as provided hereunder;
(d) "License Agreement" means the SoundPrint SPPDAQ Data
Acquisition/Data Transmission/File Management
Software license;
<PAGE>
(e) "Licensed Program" means the SoundPrint computer
programs licensed to Licensee under the License
Agreement
(f) "Release Event" means either that Pure:
(i) becomes adjudged bankrupt or Pure has taken
or is the subject of bankruptcy proceedings
under the Bankruptcy and Insolvency Act and
has not contested that proceeding within 120
day of it being initiated; or
(ii) Pure has permanently ceased provision of
maintenance and support services for the
then current version of the Licensed Program
to the Licensee of the Licensed Program
entitled to receive such services;
(g) "Source Code" means a copy of the source code of the
Licensed Program;
(h) "Updated Documentation" means each update or revision
to the Documentation which has been delivered by Pure
to Licensee from time to time
(i) "Updated Source Code" means each updated version of
the Source Code for the Licensed Program which
reflects changes to the Licensed Program delivered by
Pure to Licensee from time to time.
ARTICLE II
ESTABLISHMENT OF THE ESCROW AGENT
2.01 Upon the terms and conditions set forth herein, Licensee and
Pure hereby appoint the Escrow Agent as escrow agent and the
Escrow Agent hereby accepts such appointment concurrent with
execution and delivery of this Agreement, shall pay Escrow
Agent the amounts set out in Section 5.01 as compensation for
its services hereunder.
2.02 The Escrow Agent, as an escrow agent, agrees to accept from
Pure the Escrowed Materials as provided in this Agreement. The
Escrow Agent will issue to Pure and Licensee a receipt for the
Escrowed Materials upon each delivery thereof concurrently
with the execution and delivery of the Escrow Agreement, Pure
shall deliver to the Escrow Agent the Escrowed Materials, to
be held, distributed and/or retained by the Escrow Agent in
accordance with the terms and conditions of this Escrow
Agreement.
2.03 Concurrently with the execution and delivery of the Escrow
Agreement, Pure hereby vests Licensee, subject to the
provisions of this Agreement, all legal and beneficial title
in and to all copies of the Escrowed Materials delivered to
the Escrow Agent, effective upon the delivery of each copy of
the Escrowed Materials.
<PAGE>
2.04 The Escrow Agent hereby accepts the Escrowed Materials and
agrees to hold the Escrowed Materials in accordance with the
terms and conditions of this Escrow Agreement. The Escrow
Agent shall not be deemed to be the agent or bailee of any
party to the exclusion of any other, but shall be deemed to be
acting on behalf of both Licensee and Pure jointly.
2.05 The Escrow Agent shall hold the Escrowed Materials until the
conditions for release from escrow set forth in Article VI
have been satisfied or as otherwise provided in this
Agreement.
2.06 Pure shall ensure that updated copies of the Escrowed
Materials for the updated versions of the Licensed Program
licensed to Licensee pursuant to the License Agreement have
been deposited with the Escrow Agent on the earlier of the
date which is thirty (30) business days after the Deposit
Date, and the date on which Escrowed Materials are released to
the Licensee from time to time.
2.07 Pure represents and warrants to Licensee and the Escrow Agent
that:
(a) the Escrowed Materials include the Source Code for
the Licensed Program licensed to Licensee pursuant to
the License Agreement;
(b) the Escrowed Materials and any updates thereof
delivered to the Escrow Agent are or shall be in a
form suitable for reproduction by computer (for
computer programs) and/or photocopy equipment (for
documentation);
(c) the Source Code and any Updated Source Code shall be
in an executable form compatible with the computer
hardware and operating system for which the Licensed
Program was developed.
2.08 The Escrow Agent's rights, duties, liabilities and immunities
are as follows:
(a) the Escrow Agent's duty is limited to making
reasonable efforts to store the Escrowed Materials
and to transfer and distribute the Escrowed Materials
in accordance with the provisions of this Escrow
Agreement. The Escrow Agent shall conduct a
superficial examination of the Escrowed Materials, or
any of the updates thereto in order to verify that
disks and documents are provided. The parties
acknowledge the Escrow Agent has no knowledge of what
computer programs, or documentation or other
materials should be deposited and has no duty to
verify Pure's performance under this Agreement The
Escrow Agent is not responsible to verify that the
materials provided by Pure are the Source Code for
the Licensed Program. The Escrow Agents obligation
for safekeeping shall be limited to providing the
same degree of care for the Escrowed Materials as it
maintains for its own confidential property on the
premises for source code of its other customers
lodged in the same location. The Escrow Agent shall
not be required to provide any special environment or
care for the Escrowed Materials it being sufficient
to keep the Escrowed Materials in a filing cabinet on
the Escrow Agent's premises. The parties agree and
<PAGE>
acknowledge that the Escrow Agent shall not be
responsible for any loss or damage to any of the
Escrowed Materials due to changes in atmospheric
conditions (including, but not limited to, failure of
the air conditioning system), electrical shorts,
electrical, magnetic or other interference or other
similar acts or events, except as caused by Escrow
Agents gross negligence or willful misconduct in the
event the Escrowed Materials or any of them are
damaged or lost for any reason or cause, Pure agrees
to replace, at no cost, the Escrowed Materials
deposited with the Escrow Agent and such Escrowed
Materials shall remain subject to terms and
conditions of this Escrow Agreement;
(b) the Escrow Agent's obligations shall not be amended,
varied or modified by any agreement between any of
the other parties hereto, notwithstanding that the
Escrow Agent may have knowledge of the existence of
any such agreement or the terms and provisions
thereof Subject to Article III the Escrow Agent shall
not be required in any way to determine the validity
or sufficiency, whether in form or in substance of
the Escrowed Materials or of any instrument,
document, certificate, statement or notice referred
to in this Escrow Agreement or contemplated hereby,
or the identity or authority of the persons executing
the and it shall be sufficient if any writing
purporting to be such instrument, document,
certificate, statement or notice delivered to the
Escrow Agent and on its face appears to be correct in
form and appears to have been executed by the parties
required to sign or execute the same under this
Escrow Agreement;
(c) the Escrow Agent shall not be liable for any error of
judgment or any act done or step taken or admitted by
it in good faith or of any mistake of fact or law or
for anything it might do or refrain from doing in
connection herewith, except where such actions are
the result of the Escrow Agents gross negligence or
willful misconduct;
(d) the Escrow Agent shall have no duties except those
which are expressly set forth herein. The Escrow
Agent shall not be bound by any notice of a claim, or
demand with respect thereto, or any waiver,
modification, amendment, termination or rescission of
this Escrow Agreement, unless it shall have given its
prior written consent thereto; and
(e) if any controversy arises between the parties hereto
or to any third party with respect to the subject
matter of this Escrow Agreement or its terms or
conditions, the Escrow Agent shall not be required to
determine or resolve the same or to take any other
action with respect thereto, but the Escrow Agent may
await settlement of such controversy by final,
appropriate legal proceedings or otherwise as the
Escrow Agent may deem satisfactory in its sole
discretion.
2.09 Pure hereby indemnifies and holds harmless the Escrow Agent
against any loss, liability, or damage (other than any caused
by the gross negligence or willful
<PAGE>
misconduct of the Escrow Agent), including reasonable costs of
litigation and counsel fees, arising from and in connection
with the performance of its duties under this Agreement.
2.10 The Escrow Agent's aggregate maximum liability and the maximum
aggregate claim for damages of any kind by either Licensee or
Pure whether under contract, in tort or under any other legal
theory shall be a refund of the fees actually paid for the
escrow services in the year preceding the event which gave
rise to the claim. Except in the case of the Escrow Agent's
gross negligence or willful misconduct, in no event shall the
Escrow Agent be liable to either Licensee or Pure or any other
person for any direct, special, indirect, incidental, or
consequential damages arising under or out of the provision of
services hereunder or any act or omission related thereto even
if the Escrow Agent was previously advised of the possibility
of such damages, or for any other claim by the parties hereto
or by any other person.
2.11 The Escrow Agent or any successor to it appointed in
accordance with this Escrow Agreement may resign at any time
by giving notice of such resignation in writing to Licensee
and Pure. In the event of such resignation, Licensee and Pure
shall agree upon and appoint a successor escrow agent,
provided however, that if no successor to Escrow Agent has
been appointed after ten (10) business days after receipt of
the Escrow Agent's notice of resignation, the Escrow Agent
shall appoint its own escrow agent. Any successor to Escrow
Agent shall deliver to Licensee and Pure a written instrument
accepting such appointment and thereupon it shall succeed to
all the rights and duties of the Escrow Agent hereunder and
shall be entitled to receive the Escrowed Materials held by
the predecessor Escrow Agent and shall be deemed to be
included willful the definition of "Escrow Agent" hereunder
for all purposes. Upon receipt of such written instrument the
predecessor Escrow Agent shall be discharged of its duties
hereunder and released from any liabilities whatsoever
hereunder.
<PAGE>
ARTICLE III
VERIFICATION
3.01 At any time, Licensee may request Pure to verify that the
Escrowed Materials correspond to the Licensed Program w the
form then being used by Pure and licensed to Licensee.
Licensee shall request such verification by sending thirty
(30) days prior written notice to both Pure and the Escrow
Agent specifying the date and time (on normal business days
and during normal business hours) when it desires the
verification to be conducted together with a certified cheque
in the amount of $2,000.00 payable to the Escrow Agent as a
deposit to be applied to the Licensee's obligation to pay for
the Escrow Agent's time assisting with the verification
procedure and prepaid airline tickets if the verification is
to be done in a city other than the city of Calgary. The
Licensee shall be responsible, at its cost, for arranging a
location for the verification and availability of a suitable
computer on which to carry out the verification.
3.02 At the date and time specified in the notice, and at the
location of the computer upon which the verification is to be
conducted, the Escrow Agent shall deliver the Escrow Materials
in its possession to die joint possession of both Pure and
Licensee. The Escrow Agent shall have, as between the parties,
priority to possession of the Escrowed Materials during and
after such verification and the right to demand the immediate
return of the Escrowed Materials at any time. Licensee and
Pure shall return the Escrowed Materials to the Escrow Agent
immediately upon demand from the Escrow Agent. In the presence
of Pure and the Escrow Agent, Licensee shall perform or have
performed such series of tests and verification procedures as
it may reasonably require to enable it to determine that the
Escrowed Materials correspond to the system in the form then
in use by Pure and licensed to Licensee. Such verification is
to take place on a computer capable of using Pure's system, in
the control of Pure or, at the option of Licensee, on a
computer in the control of Licensee. Upon completion of the
verification, Licensee shall mark as "verified" all copies of
the Escrowed Materials which it may have determined correspond
to the system in the form then in use by Pure and licensed to
Licensee, and shall return all such Escrowed Materials to the
Escrow Agent and shall ensure that all copies of the Escrowed
Materials which were created pursuant to the verification
process are purged from magnetic or other media and the
computer equipment on which the verification process took
place. Licensee shall pay all of the expenses of the Escrow
Agent incurred as a result of its request for verification
except as set forth in section 3.03 below.
3.03 If Licensee discovers through the verification process that
the Escrowed Materials do not constitute a copy of the Source
Code or Updated Source Code for the Licensed Program then
being used by Pure and licensed to Licensee, Licensee shall so
notify Pure and the Escrow Agent in writing and Pure shall pay
all of the expenses of the Escrow Agent incurred as a result
of the verification. Within five (5) business days after such
notice, Pure will deliver a complete copy of the Escrowed
Materials to the Escrow Agent and the verification process set
out in
<PAGE>
this Article III shall be repeated at Pure's cost until, in
the reasonable opinion of the Licensee, the Escrowed Materials
are verified and in order.
ARTICLE IV
TERMS OF AGREEMENT
4.01 This Escrow Agreement shall remain in fall force and effect
during the term of the said License Agreement unless this
Escrow Agreement is terminated in accordance with its express
terms.
ARTICLE V
CHARGES
5.01 _________________ shall be obliged to pay the Escrow Agent for
its services in accordance with the following schedule (except
as provided by Section 5.01(e)):
(a) $850.00 on account of the receipt and handling of the
media containing the Documentation payable upon the
execution of this Escrow Agreement;
(b) $850.00 annually on account of the receipt and
handling of the Updated Documentation and Updated
Source Code and reporting to Licensee on the fact of
such deposit; the fee to be payable upon the
execution of the Escrow Agreement and annually
thereafter upon each anniversary date hereof;
(c) $275.00 per hour to the Escrow Agent in respect of
the Escrow Agent's performance under this Agreement
including, without limitation, the receipt and
handling of each additional delivery of the Updated
Documentation and Updated Source Code (other than the
first copy each year), reporting to Licensee on the
fact of such deposit or the involvement in any
proceeding; such fees hereunder payable within ten
(10) days of any such request or work of the Escrow
Agent;
(d) $200.00 per cubic foot of additional storage space
annually for additional storage space in the event
the Documentation and any Updated Documentation
exceeds one (1) cubic foot of space; such fee to be
payable upon the execution of the Escrow Agreement
and annually thereafter upon each anniversary date
hereof;
(e) $275.00 per hour to the Escrow Agent payable by
Licensee each time the Escrow Agent is required to
attend any verification proceedings as described in
Article III hereof and subject to the provision of a
deposit as required in Article III hereof; and
(f) Pure and Licensee shall jointly and severally
indemnify and save harmless the Escrow Agent in
respect of all claims, proceedings, damages, costs,
<PAGE>
expenses, and charges incurred by the Escrow Agent in
the performance of its duties hereunder including,
without limitation, payment of all legal fees for
counsel appointed to advise the Escrow Agent in
respect of any matter under this Agreement.
5.02 Upon each anniversary date of the Escrow Agreement, on at
least two (2) months prior written notice, the Escrow Agent
may increase any or all of the charges payable hereunder
during the next twelve (12) month period provided that the
maximum increase shall not in each case exceed $100.00. In no
event however, shall charges hereunder exceed the published
standard list prices for such services generally charged by
the Escrow Agent.
5.03 In addition to the charges set out in this Agreement, agrees
to pay amounts equal to any applicable taxes, fees, or amounts
in lieu thereof however designated paid or payable by the
Escrow Agent and levied or based on such charges or services
rendered pursuant to this Agreement, exclusive of taxes based
on the income of the Escrow Agent.
5.04 In addition, __________ shall pay to the Escrow Agent its
actual legal fees incurred (on a solicitor-client basis) for
performance of this Agreement, including obtaining any opinion
or advice respecting any act or eligibility of the Escrow
Agent hereunder for time spent in preparation or providing
assistance in verification or in providing any services under
this Agreement in participation in arbitration or otherwise as
contemplated hereunder, provided that Pure shall not be
required to pay any amounts payable by Licensee in respect of
a verification under Article III hereof.
ARTICLE VI
RELEASE OF ESCROWED MATERIALS
6.01 Upon the receipt of written notice from Licensee and subject
to the provisions of this Article VI, the Escrow Agent is
hereby authorized and directed by Licensee and Pure to
distribute the Escrowed Materials in accordance with such
written notice from Licensee.
6.02 Licensee may at any time require by prior written notice (the
"Request") to Pure and the Escrow Agent that the Escrow Agent
deliver to the Licensee and Pure all Escrowed Materials then
on deposit with the Escrow Agent. Such request shall set out
why Licensee reasonably considers that a Release Event has
occurred. Within fifteen (15) days thereafter, Escrow Agent
shall deliver to Licensee all of the Escrowed Materials then
on deposit unless during such fifteen (15) day period either
(a) Licensee withdraws its Request for delivery of such
Escrowed Materials; or
<PAGE>
(b) Pure disputes the release of the Escrowed Materials
by sending a written notice (the "Dispute Notice") to
both Licensee and the Escrow Agent. The Dispute
Notice shall set out why Pure reasonably considers
that a Release Event has not occurred.
6.03 Upon receipt of the Dispute Notice, Licensee may withdraw its
request. In the event that Licensee does not withdraw its
request and Pure continues to dispute the release of the
Escrowed Materials within such fifteen (15) day period, then
the Escrow Agent shall notify Pure and Licensee in writing
that the dispute is to be settled by binding arbitration (the
"Notice of Arbitration") as set out in this Agreement.
6.04 Within five (5) days of receipt from the Escrow Agent of the
Notice of Arbitration, Licensee and Pure, will each appoint an
arbitrator and notify the other party of their choice. In the
event the only one (1) of Pure or Licensee appoints an
arbitrator in that period, then that arbitrator will be the
sole arbitrator and his decision will be binding on both
parties. In the event neither party appoints an arbitrator
within said five (5) days then the period for appointment is
extended in three (3) day intervals, until either one or both
parties has appointed an arbitrator In the event that an
arbitrator is appointed by both parties within the time
allowed, then within three (3) days of the appointment of the
second arbitrator, the arbitrators will together appoint a
third arbitrator, or, failing agreement on the third
arbitrator, either Licensee or Pure may apply to a court of
competent jurisdiction for appointment of a third arbitrator.
Within five (5) days of the appointment of all three (3)
arbitrators or of appointment of a sole arbitrator as
contemplated in this section 6.04, each of Licensee and Pure
shall have the right to present one day of evidence and
argument to the arbitrator or arbitrators, as applicable, who
shall hear such evidence within five (5) days after their
appointment. The arbitrator or arbitrators, as applicable,
shall decide whether or not the Escrowed Materials should be
released to Licensee and when the Escrowed Materials should be
released. The decision of the one arbitrator, if only one (1)
is appointed, or two (2) of the three (3) arbitrators, if
three (3) are appointed, is binding on all parties, and shall
be rendered within five (5) business days of the conclusion of
the arbitration. The Escrow Agent shall abide by the decisions
of such majority or sole arbitrator.
6.05 The unsuccessful party to the arbitration, whether Pure or
Licensee, shall pay all the costs of the arbitration as well
as the fees of the arbitrator(s).
6.06 In all other respects, the arbitration shall be governed by
the laws of the Province of Alberta.
6.07 Time shall be of the essence in carrying out this arbitration
procedure. All references to days in this Article VI shall
mean normal business days.
<PAGE>
ARTICLE VII
TERMINATION OF THE ESCROW AGREEMENT
7.01 This Escrow Agreement may be terminated by Licensee and Pure
jointly by sending the Escrow Agent ten (10) days prior
written notice of termination.
7.02 If the Escrow Agent receives written notice from both Pure and
Licensee that this Escrow Agreement is to be terminated, then
the Escrow Agent shall, in its sole discretion, either:
(a) within ten (10) days thereafter, erase all computer
tapes and/or discs held by it in escrow at that time
on which copies of the Source Code and Updated Source
Code are recorded, shall destroy all written material
constituting part of the Escrowed Materials; or
(b) shall deliver all Escrowed Materials to Pure. Upon
such delivery or erasure and destruction, this Escrow
Agreement shall terminate.
ARTICLE VIII
NON-DISCLOSURE BY THE ESCROW AGENT
8.01 Except as provided in this Agreement and subject to the
requirements of any legal proceeding in respect of this
Agreement the Escrow Agent agrees that it will not divulge or
otherwise make available to any third party or make any use of
the Escrowed Materials deposited by the Pure and held by the
Escrow Agent in connection with this Agreement, without the
express prior written consent of Licensee and Pure.
ARTICLE IX
LICENSEE'S LIMITED RIGHTS
9.01 In the event Licensee is provided any of the Escrowed
Materials, Licensee may only use any such Escrowed Materials
solely to maintain Licensee's own copy of the Licensed Program
in accordance and subject to the License Agreement and for no
other purpose. Licensee shall be bound to maintain all
Escrowed Materials in strictest confidence and neither divulge
or otherwise make available to any third party any of the
Escrowed Materials.
ARTICLE X
GENERAL
10.01 Assignment.
Licensee shall not transfer, delegate or assign this Agreement or any
of its rights or obligations hereunder without Pure's prior written consent
which shall not be unreasonably
<PAGE>
withheld. The Escrow Agent can assign its rights and obligations hereunder to a
special purpose corporation established to provide escrow services. This
Agreement shall be binding upon and inure to the benefit of each of the parties
and their respective successors, permitted assigns and legal representatives.
10.02 Notices.
All notices, requests, demands or other communications required or
permitted to be made under this Agreement shall be in writing and shall be
either delivered personally, sent by fax (with hard copy to follow), sent by
guaranteed prepaid overnight delivery service or mailed by U.S., French or
Canadian mail, certified or registered, return receipt requested, with
appropriate postage prepaid, in each case to the addressee and/or fax number on
the first page of the Agreement, or to such other addresses as may be designated
in writing by notice given in the manner provided herein. Such notices and
communication shall be deemed given: (i) upon actual delivery thereof if
delivered by hand; (ii) one (1) business day following overnight delivery
service, if delivered by overnight delivery service; (iii) one (1) business day
following delivery, if sent by fax and electronic confirmation of complete
transmission to the recipients fax number is received by the sender; or (iv) six
(6) business days following deposit in the U.S. or Canadian mail, if sent by
mail, whether or not delivery is accepted.
10.03 Governing Law.
This Agreement shall be governed by and construed in accordance with
die laws of the Province of Alberta, without giving effect to its conflicts of
law provisions.
10.04 Force Majeure.
Any delay in or failure of performance by either party under this
Agreement (other than payment obligations) shall not be considered a breach of
this Agreement and shall be excused if and to the extent caused by any
occurrence, foreseeable or unforeseeable, beyond the reasonable control of the
party affected, including without limitation: acts of God or the public enemy,
fire; flood; embargoes; governmental restrictions; strike or labor difficulties;
riots; wars or other military action; civil disorders; shortage of labor, fuel,
power, materials, supplies, or transportation; delays in deliveries by
suppliers; or any other cause or causes beyond such party's reasonable control.
10.05 Independent Contractors.
No party is the employee, partner, joint venturer, agent or legal
representative of the other parties for any purpose. No party shall have the
authority to enter into any contracts in the name of or on behalf of the other
parties.
10.06 Waiver.
No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented.
<PAGE>
10.07 Severability.
In the event that one or more of the terms, conditions or covenants
contained in this Agreement or any portion of them is determined to be
unenforceable or invalid, such unenforceability or invalidity shall not affect
the enforceability or the validity of the remaining terms, conditions or
covenants and portions thereof, and each unenforceable or invalid term,
condition or covenant or portion thereof shall be severable from the remainder
of this Agreement
10.08 Lawyers Fees.
In the event of any controversy, claim or dispute between the parties
hereto arising out of or relating to this Agreement, the prevailing party shall
be entitled to recover from the non-prevailing party its reasonable expenses
including, but not by way of limitation, lawyers' fees on a solicitor and his
client basis.
10.09 Remedies Cumulative.
No remedy or selection under this Agreement shall be deemed exclusive
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
10.10 Entire Agreement.
Thus Agreement constitutes the entire agreement between the parties in
respect of the subject matter and supersedes all proposals, representations and
agreements, oral and written, between the parties on this subject. This
Agreement may not be amended, except by a writing signed by authorized
representatives of each party.
10.11 United Nation Sale of Goods Convention.
The application to this Agreement of the United Nations Convention on
Contracts for the International Sale of Goods, as well as the application of
domestic legislation which has or purports to have adopted the Convention into
law for the jurisdiction concerned are hereby excluded. The parties make such
exclusion pursuant to the appropriate provisions in the legislation which
adopted the Convention into law in the jurisdiction concerned.
10.12 Addition of other Licensees.
The parties agree that Pure may extend the benefits of this escrow
arrangement to other licencees upon giving notice in writing to the Licensee and
Escrow Agent. In any such
<PAGE>
case such other licensee shall only be permitted to obtain access to a
copy of escrow materials on the same basis as Licensee hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective corporate officers hereunto duly authorized as at the date
set out above.
FREYSSINET INTERNATIONAL (STUP) SNC.
Per: ____________________________________
Per: ____________________________________
PURE TECHNOLOGIES LTD.
Per: ____________________________________
Per: ____________________________________
ESCROW AGENT
Per: ____________________________________
Per: ____________________________________
<PAGE>
SCHEDULE "H" - TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT made the _________day of ______________, 1999, BY AND BETWEEN:
Pure Technologies Ltd., ("Licensor") an Alberta corporation organized and
existing under the laws of the Province of Alberta, Canada, and Freyssinet
International (STUP) SNC, ("Licensee") organized and existing under the laws of
France.
WHEREAS:
A. Licensor is the owner of certain trademarks, described in Schedule "A"
to this Agreement, (each of which or all referred to as the "Trademarks") and
the goodwill attached thereto;
B. In conjunction and subject to the appointment of Licensee as a
representative of Licensor under the terms of a certain License Agreement
("License Agreement") made at the same time as this Agreement Licensee id
desirous of use the Trademarks as an authorized user in each country specified
as the Territory in the License Agreement ("Territory");
NOW THEREFORE the parties hereto covenant and agree as follows:
7.9 Subject to compliance of Licensee with the terms of the
License Agreement, Licensor hereby grants to Licensee a
non-exclusive, non-transferable right to use the Trademarks
solely in connection with the marketing and sale of Licensor's
Products, as defined in the License Agreement, only in such
countries in the territory for which the Licensee is then
currently approved by Licensor (the "License").
7.10 Licensee shall not use the Trademarks outside the Territory
except with the express prior written consent of Licensor.
Licensee shall use the Trademarks only under and in compliance
with the terms of this Agreement.
7.11 Licensee shall use the Trademarks in strict accordance with
the Instructions, standards of quality and trademark
specifications set by and approved by Licensor from time to
time, to use the Trademarks only in association with the
products or services in accordance with the standards of
quality set by and approved by Licensor from time to time and
to use each of the Trademarks only in association with the
Products or services of Licensor.
7.12 Licensee agrees not to use the Trademarks in advertising
without prior consent of licensor licensee undertakes not to
use the Trademarks in any way that is likely to prejudice
Licensor's rights.
7.13 Licensee agrees that Licensor possesses whatever the absolute
and exclusive proprietary rights to the Trademarks which
exists in each country of the Territory and elsewhere and the
Trademarks shall remain the sole property of Licensor. This
Agreement does not give Licensee any interest in the
Trademarks except the right to use the Trademarks in
accordance with the terms of this Agreement. Licensee shall
not use the Trademarks in any manner calculated to represent
that Licensee is the owner of the Trademarks.
<PAGE>
7.14 Licensee agrees that during the term of this Agreement and
thereafter, it will not dispute or contest, directly or
indirectly, the validity or enforceability of the Trademarks,
nor counsel, procure or assist anyone else to do the same nor
directly or indirectly attempt to dilute the value of the
goodwill attached to the Trademarks, nor counsel, procure or
assist anyone else to do the same.
7.15 Licensee will place on any and all goods, materials or
services used or offered in connection with the Trademarks and
on signs and on advertising material displaying the
Trademarks, such notice as licensor may direct from time to
time, and without limiting the generality of the foregoing,
such notice may be written as follows: "(TRADEMARK) is a
trademark of Pure Technologies Ltd. Used under license by
Licensee".
7.16 Licensor shall take all steps that in its opinion and sole
discretion are necessary or desirable to protect the
Trademarks against any infringement or dilution. Licensee
agrees to cooperate fully with Licensor in the defense and
conservation of the Trademarks as requested by Licensor.
7.17 Licensee shall report to licensor any infringement or
limitation of, or challenge to the Trademarks immediately upon
becoming aware of same and Licensor shall, at its sole
discretion, determine whether or not any action shall be taken
on account of such infringements, imitations or challenges and
Licensor's determination shall be final. Licensee shall not be
entitled to bring, or call upon, or compel Licensor to bring
any action or other legal proceedings on account of such
infringements, imitations or challenges, without the written
agreement of Licensor. Licensor shall not be liable for any
loss, cost, damage or expense suffered or incurred by licensee
because of the failure or inability of Licensor to take or
consent to the taking of any action or account of any such
infringements, imitations or challenges because of the failure
of any such action or proceeding. In the event that Licensor
shall commence any action or legal proceeding on account of
such infringements, imitations or challenges, Licensee agrees
to provide all reasonable assistance (other than financial
assistance) requested by Licensor in preparing for and
prosecuting the same.
7.18 Licensee shall from time to time execute such agreements,
forms and furnish such declarations of use as may be required
by Licensor in connection with the Trademarks, any use and the
registrations thereof by Licensor.
7.19 Licensee agrees to forward to Licensor upon Licensor's written
demand, samples of advertising which refers to the Trademarks.
Licensee shall at its own expense send to Licensor random
samples of materials displaying the Trademarks and reports of
details of the manner of use thereof and details of the
services offered by licensee both pursuant to this Agreement
and otherwise, from time to time, upon the request of
Licensor. Licensee agrees to correct any deficiencies which
are brought to Licensee's attention by
<PAGE>
Licensor, and to refrain from providing any goods and
services, which in the reasonable opinion of Licensor do not
meet its standard of quality.
7.20 Licensee agrees to indemnify and hold harmless Licensor from
and against any and all actions, suits, claims, demands,
prosecutions that may be brought or instituted against
Licensor based on or arising out of the conduct of Licensee,
including, without limitation, any claims arising from or
related to the quality, functionality, utility of any product
or service offered by Licensee.
7.21 This Agreement shall be governed by, subject to, and
interpreted in accordance with the laws of the Province of
Alberta, Canada. Both parties attorn to the jurisdiction of
the Alberta courts.
7.22 Unless otherwise terminated pursuant to the provisions of this
Agreement, the license granted hereunder shall be in force for
any country on the same terms and for the same term as
Licensee's appointment as Licensor's representative in any
country in the territory under the License Agreement.
7.23 This Agreement shall immediately terminate on termination or
expiration of the License Agreement or on written notice to
Licensee if Licensee commits any act or becomes involved in
any situation or occurrence which in the opinion of Licensor
would tend to bring Licensor or its Trademarks to public
disrepute, contempt scandal, or ridicule or which, in the
opinion of Licensor, would tend to shock, insult or offend the
community, or any group or class thereof. On expiration or
termination of this Agreement the license shall revert to
Licensor and Licensee thereafter shall not use or refer to the
Trademarks or in anyway identify itself or associate itself
with the same or with Licensor either directly or indirectly
and Licensee shall remove forthwith from public view all signs
and advertising display materials, printed paper products,
special advertising materials, business supplies, containers
and wrapping material bearing the Trademarks then in its
possession.
IN WITNESS WHEREOF the parties have executed this Agreement either directly or
in two counterparts by their duly authorized representatives.
FREYSSINET INTERNATIONAL (STUP) SNC.
Per: ____________________________________
Per: ____________________________________
PURE TECHNOLOGIES LTD.
Per: ____________________________________
Per: ____________________________________
<PAGE>
SCHEDULE "I"
Y2K STATEMENT
STATEMENT OF YEAR 2000 COMPLIANCE FOR ON-SITE COMPUTER EQUIPMENT
OVERVIEW
On-site computer equipment supplied by Pure Technologies Inc, ("Pure"),
consists of an IBM-PC compatible computer, (the "PC").
Year 2000, (Y2K), compliance issues affecting the PC include the PC's
system BIOS, the operating system software used to operate the PC and
application software that performs day-to-day tasks including:
o monitoring of acoustic data;
o transmission of data files;
o provision of remote access to the PC; and
o virus protection.
Pure is currently in the implementation phase of its Y2K plan. All
systems that have been identified as having Y2K non-compliance issues
that prevent the correct operation of the system will be tested and
upgraded, if necessary, by April 1, 1999.
Pure has tested its current computer equipment for Y2K compliance and
is confident that the computer equipment being used to monitor is Y2K
compliant.
ON-SITE DEMONSTRATION OF YEAR 2000 COMPLIANCE
Pure would be pleased to provide an on-site demonstration of the Y2K
compliance of any of the computer equipment supplied by Pure. Please
contact Pure at 1 (800) 537-2806 to arrange a demonstration at your
convenience.
IBM-PC COMPATIBLE COMPUTER
99% of the PC's being used to monitor remote sites have a system BIOS
that is certified by the BIOS manufacturer to be Y2K compliant. Please
contact Pure for further information regarding the specific BIOS
information. Pure has identified all systems with a non-Y2K
compliant-BIOS, and is scheduling upgrades or replacements for these
systems prior to April 1, 1999.
<PAGE>
OPERATING SYSTEM SOFTWARE
The operating system software used on the PC is Windows NT 4.0 with
Service Pack 3 or higher. Nficrosoft has stated that such versions are
Y2K compliant or Y2K compliant with minor issues. Pure has demonstrated
that none of these minor issues affect the operation of the computer
equipment or the application software. For further information visit
the Microsoft Year 2000 Resource Center at
http://www.microsoft.com/technet/topics/Year2k.
APPLICATION SOFTWARE
Monitoring of Acoustic Data
All monitoring of acoustic data relies solely on software services
developed by Pure, provided by the operating system or third party
software libraries that do not specifically relate to date and time
storage, representation or manipulation.
Pure warrants that all software developed by Pure to perform the
function of monitoring of acoustic data can store, represent and
otherwise manipulate dates and times up to and beyond the Year 2000.
Transmission of Data Files
All transmission of data files relies solely on software services
developed by Pure, provided by the operating system or third party
software libraries that do not specifically relate to date and time
storage; representation or manipulation.
Pure warrants that all software developed by Pure to perform the
function of transmission of data files can store, represent and
otherwise manipulate dates and times up to and beyond the Year 2000.
Provision of Remote Access to the PC
Provision of remote access to the PC relies on software services
provided by the operating system and Symantec's pcAnywhere32 7.5 or
higher. Symantec states that only pcAnywhere32 8.0 and higher are Y2K
compliant. For further information see Symantec's Y2K web site at
http://www.symantec.com/y2k/y2k.html.
Systems commissioned during and after October 1998 all use pcAnywhere32
8.0 or higher. Systems commissioned prior to October 1998 use
pcAnywhere32 7.5.
Accordingly, Pure has tested pcAnywhere32 7.5 for correct operation
through the Year 2000 and beyond. These tests have not revealed any
issues that negatively impact the provision of remote access or any
other aspect of the system.
<PAGE>
If an Issue does arise because of the Y2K non-compliance of
pcAnywhere32 7.5 such that the provision of remote access is negatively
impacted, Pure warrants that it will replace, at its cost, pcAnywhere32
7.5 with a version of pcAnywhere that Symantec has stated to be Y2K
compliant.
Virus Protection
Provision of virus protection to the PC relies on software services
provided by the Symantec's Norton Antivirus 4.0 or higher. Symantec
states that such versions of Norton Antivirus are Y2K compliant. For
further information see Symantec's Y2K web site at
http://www.symantec.com/y2k/y2k.htmL
