PAGE 1 OF 5 SOFTWARE LOAN AGREEMENT
SOFTWARE LOAN AGREEMENT
THIS AGREEMENT, made the 1st day of June, 2004, by and between XXXXXXX XXXXXXXX,
hereafter called "CY", and INTERNET TELECOMMUNICATIONS PLC, hereafter called
"ITPLC". CY and ITPLC, for the consideration hereafter named, agree as follows:
Under the General Conditions of Loan attached to this sheet, CY hereby Loans to
ITPLC all Software named and identified in the following "List of Software," for
use at such location and at such Loan rate for approximately such time as is
therein stated. CY shall furnish such Software, F.O.B., in operative condition.
LIST OF SOFTWARE
------------------- ----------------- ----------------- ------------------- ---------------- ----------------
DESCRIPTION OF LOCATION OF DURATION OF ITPLC LOAN RATE PER LOAN RATE UNIT
SOFTWARE SOFTWARE USE SOFTWARE USE IDENTIFICATION ARTICLE ((POUND)) (DAILY,
NUMBER MONTHLY)
------------------- ----------------- ----------------- ------------------- ---------------- ----------------
Navigator London 24 months ITPLC001 Nil Nil
------------------- ----------------- ----------------- ------------------- ---------------- ----------------
IT Billing London 24 months ITPLC002 Nil Nil
------------------- ----------------- ----------------- ------------------- ---------------- ----------------
Website London 24 months ITPLC003 Nil Nil
------------------- ----------------- ----------------- ------------------- ---------------- ----------------
ITPLC and CY, for themselves, their successors, executors, administrators and
assigns, agree to the full performance of the covenants herein contained.
IN WITNESS WHEREOF, they have executed this Agreement the day and year first
above written:
ITPLC
By: Petrula Xxxxxxxxx
XX
By: Xxxxxxx Xxxxxxxx
GENERAL CONDITIONS OF SOFTWARE (LOAN)
The conditions of lease here below stated, together with the Agreement set forth
on the reverse side of this sheet, constitute a contract between the parties
therein named which contract is hereafter referred to as "this Agreement".
1) LOAN PERIOD. The Loan period shall cover all time consumed in transporting
the Software, including the date of legal delivery to a public carrier for
transit to ITPLC and upon return of the Software, the date of legal delivery by
such carrier to CY, or if no public carrier is used, shall include the date upon
which transit to ITPLC begins and the date upon which transit from ITPLC ends at
CY's unloading point.
2) LOAN CHARGES. ITPLC shall pay Loan for the entire Loan Period on each article
of Software named in the List of Software, at the rate therein stipulated and in
accordance with the following: a) Monthly Loan Rates shall not be subject to any
deductions on account of any non-working time in the
month. The amount of Loan payable for any fraction of a month
at the beginning or end of the Loan Period shall be the
monthly Loan rate, prorated according to the number of
calendar days in such fraction.
b) Daily Loan Rates shall not be subject to deductions for any
non-working time in the day and shall be paid for each
calendar day in the month except Sundays and legal holidays
upon which the Software is not operated. Daily and monthly
Loan rates stipulated in the List of Software contemplate an
operating day of a regular single shift of eight (8) hours,
and for each hour over such eight (8) hours that the Software
is operated these rates shall be increased six (6) percent of
the daily rate throughout such period as the Software is so
operated.
c) Unit of Work Rates shall be paid for each unit of work in
which the Software participates, and the amount of Loan shall,
unless otherwise agreed in writing be determined by the number
of units shown in the supervising engineer's or architect's
estimates.
3) PAYMENT. The Loan for any and every item of Software described
in the List of Software shall be the amount therein designated
and is payable in advance on the first day of each month.
ITPLC shall pay CY interest at nil percent (0%) or the highest
lawful rate, whichever is greater, on any delinquent payment
from the date when such payment was due until paid and on any
other sum for breach of this Agreement, from the date of the
breach, and expenses of collection or suit, including actual
attorneys' fees.
4) SECURITY DEPOSIT. Any security deposit paid by ITPLC to CY is
paid to guarantee ITPLC's full and faithful performance of all
terms, conditions and provisions of this Agreement. If ITPLC
shall so perform, an equal sum shall be repaid without
interest to ITPLC at the termination of this Agreement.
5) FEES, ASSESSMENTS, AND TAXES PAID BY ITPLC. ITPLC shall pay
all license fees, assessments, and sales, use, property and
excise, and other taxes or hereafter imposed, and relating to
ITPLC's use or possession of the Software (if applicable).
6) RECALL NOTICE. CY may recall any or all Software upon three
(3) months written notice to ITPLC and the ITPLC may return
any or all Software upon a like notice to the CY.
7) MAINTENANCE AND OPERATION. ITPLC shall not remove, alter,
disfigure or cover up any numbering, lettering, or insignia
displayed upon the Software, and shall see that the Software
is not subjected to careless, unusually or needlessly rough
usage; and ITPLC shall at his own expense maintain the
Software and its appurtenances in good repair and operative
condition, and return it in such condition to CY, ordinary
wear and tear resulting from proper use thereof alone
expected.
8) REPAIRS. The expense of all repairs made during the Loan
Period, including labor, material, parts and other items shall
be paid by ITPLC.
9) OPERATORS. Unless otherwise mutually agreed in writing, ITPLC
shall supply and pay all operators on the Software during the
Loan Period. All operators shall be competent. Should XX
xxxxxxx any operators or other workmen for the Software, they
shall be employees of ITPLC during the Loan Period, and ITPLC
shall pay them salary or wages and all other cost if agreed
from time to time. ITPLC shall provide and pay for all
workmen's compensation insurance and pay all payroll taxes
required by law and applying to such operators and xxxxxxx.
10) DISCLAIMER OF WARLOANIES. CY, BEING NEITHER THE MANUFACTURER,
NOR A SUPPLIER, NOR A DEALER IN THE SOFTWARE, MAKES NO
WARLOANIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SOFTWARE,
ITS MERCHANTABILITY, ITS DESIGN, ITS CAPACITY, ITS
PERFORMANCE, ITS MATERIAL, ITS WORKMANSHIP, ITS FITNESS FOR
ANY PARTICULAR PURPOSE, OR THAT IT WILL MEET THE REQUIREMENTS
OF ANY LAWS, RULES, SPECIFICATIONS, OR CONTRACTS WHICH PROVIDE
FOR SPECIFIC APPARATUS OR SPECIAL METHODS. CY FURTHER
DISCLAIMS ANY LIABILITY WHATSOEVER FOR LOSS, DAMAGE, OR INJURY
TO ITPLC OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT
OR OTHERWISE, IN THE SOFTWARE. AS TO CY, ITPLC LEASES THE
SOFTWARE "AS IS". CY SHALL NOT BE LIABLE IN ANY EVENT TO ITPLC
FOR ANY LOSS, DELAY, OR DAMAGE OF ANY KIND OR CHARACTER
RESULTING FROM DEFECTS IN, OR INEFFICIENCY OF, SOFTWARE HEREBY
LEASED OR ACCIDENTAL BREAKAGE THEREOF.
11) INDEMNITY. ITPLC shall indemnify CY against, and hold CY
harmless from, any and all claims, actions, suits,
proceedings, costs, expenses, damages, and liabilities,
including attorneys fees, arising out of, connected with, or
resulting from the Software or the Loan, including without
limitation, the manufacture, selection, delivery, leasing,
Loaning, control, possession, use, operation, maintenance or
return of the Software. ITPLC shall further indemnify CY, and
hold CY harmless from all loss and damage to the Software
during the Loan period. ITPLC recognizes and agrees that
included in this indemnity clause, but not by way of
limitation, is ITPLC's assumption of any and all liability for
injury: disability and death of workmen and other persons
caused by the operation, use, control, handling, or
transportation of the Software during the Loan Period.
12) RISK OF LOSS. CY shall not be responsible for loss or damage
to property, material, or Software belonging to ITPLC, its
agents, employees, suppliers, or anyone directly or indirectly
employed by ITPLC while said material property, or Software is
in CY's care, custody, control or under CY's physical control.
ITPLC is encouraged to obtain appropriate Software, material,
or installation floater insurance against such risk of loss.
ITPLC and its insurers waive all rights of subrogation against
CY for such losses.
13) INSPECTION: CONCLUSIVE PRESUMPTIONS. ITPLC shall inspect the
Software within three (3) business days after receipt thereof.
Unless ITPLC within said period of time gives written notice
to CY, specifying any defect in or other proper objection to
the Software. ITPLC agrees that it shall be conclusively
presumed, as between CY and ITPLC, that ITPLC has fully
inspected and acknowledged that the Software is in full
compliance with the terms of this agreement, in good condition
and repair, and that ITPLC is satisfied with and has accepted
the Software in such good condition and repair. CY shall have
the right at any time to enter the premises occupied by the
Software and shall be given free access thereto and afforded
necessary facilities for the purpose of inspection.
14) OWNERSHIP. CY shall at all times retain ownership and title of
the Software. ITPLC shall give CY immediate notice in the
event that any of said Software is levied upon or is about to
become liable or is threatened with seizure, and ITPLC shall
indemnify CY against all loss and damages caused by such
action.
15) DEFAULT; REMEDIES. If (a) ITPLC shall default in the payment
of any Loan or in making any other payment hereunder when due,
or (b) ITPLC shall default in the payment when due of any
indebtedness of ITPLC to CY arising independently of this
lease, or (c) ITPLC shall default in the performance of any
other covenant herein and such default shall continue for five
days after written notice hereof to ITPLC by CY, or (d) ITPLC
becomes insolvent or makes an assignment for the benefit of
creditors, or (e) ITPLC applies for or consents to the
appointment of a receiver, trustee, or liquidator of ITPLC or
of all or a substantial part of the assets of ITPLC under the
Bankruptcy Act, or any amendment thereto (including, without
limitation, a petition for reorganization, arrangement, or
extension) or under any other insolvency law or law providing
for the relief of debtors, then, if and to the extent
permitted by applicable law. CY shall have the right to under
any other insolvency law or law providing for the relief of
debtors, then, if and to the extent permitted by applicable
law. CY shall have the right to exercise any one or more of
the following remedies.
(a) To declare the entire amount of Loan hereunder immediately due and
payable as to any or all items of the Software, without notice or
demand to ITPLC. (b) To xxx for and recover all Loans, and other
payments, then accrued or thereafter accruing, with respect to any or
all items of he Software.
(c) To take possession of any or all items of the Software without
demand, notice, or legal process, wherever they may be located. ITPLC
hereby waives any and all damages occasioned by such taking of
possession. Any said taking of possession shall not constitute a
termination of this lease as to any or all items of Software unless CY
expressly so notifies ITPLC in writing. (d) To terminate this lease as
to any or all items of Software.
(e) To pursue any other remedy at law or in equality.
Notwithstanding any said repossession, or any other action which CY may take,
ITPLC shall be and remain liable for the full performance of all obligations on
the part of ITPLC to be performed under this Lease. All such remedies are
cumulative, and may be exercised concurrently or separately.
16) NO SUBLETTING ASSIGNMENT. No Software shall be sublet by ITPLC, nor shall he
assign or transfer any interest in this Agreement without written consent of CY.
CY may assign this Agreement without notice. Subject to the foregoing, this
Agreement inures to the benefit of, and is binding upon, the heirs, successors,
and assigns of the parties hereto.
17) RIGHT OF PURCHASE. ITPLC shall within the period of the loan have a right of
purchase of the Software and all its intellectual property and rights thereto at
a value to be confirmed by third party valuation, but in any event such value
shall not be less than one million five hundred thousand pounds
((pound)1,500,000) unless otherwise agreed by CY.
18) REMEDIES CUMULATIVE: NO WAIVER; SEVERABILITY. All remedies of CY hereunder
are cumulative and may, to the extent permitted by law, be exercised
concurrently or separately, and the exercise of any one remedy shall not be
deemed to be an election of such remedy or to preclude the exercise of any other
remedy. No failure on the part of the CY to exercise and no delay in exercising,
any right or remedy, hereby shall operate as a waiver thereof; nor shall any
single or partial exercise by CY of any right or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right or remedy.
If any term or provision of this lease is found invalid, it shall not affect the
validity and enforcement of all remaining terms and provisions of this lease.
19) EXPENSES. ITPLC shall pay CY all costs and expenses, including attorneys'
fees, incurred by CY in exercising any of its rights or remedies hereunder or
enforcing any of the terms, conditions, or provisions hereof.
20) ENTIRE AGREEMENT. This instrument constitutes the entire agreement between
CY and ITPLC; and it shall not be amended, altered or changed except by a
written agreement signed by the parties hereto.
