Exhibit 10.32
Cooperation Software Licencing Agreement
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between
Berningshausen & Neben OHG
Xxxxxxx-Xxxxxx-XxxxXx 00, 00000 Xxxxxxxxx
- hereinafter referred to as "B&N" -
and
Cybernet Internet Services International, Inc.
Xxxxxx-Xxxxxx-Ring 19-23, 00000 Xxxxxx
- hereinafter referred to as Cybernet -
Preliminary remark
B&N is active in the area of development and distribution of software products
for inter-company exchange of documents ("EDI"). Cybernet is active in the area
of network services for enterprises. The parties intend to develop EDI platforms
according to the requirement of this agreement, to produce them and to
distribute them. An EDI platform consists basically of software products of B&N
("B&N software") and an IP-based communication structure linking these products.
B&N grants Cybernet the right to connect B&N software with soft-, hardware or
IP-based infrastructure of Cybernet ("Cybernet components") to EDI platforms, to
process them and to market these combined EDI platforms. EDI platforms are to be
offered to companies and/or organizations for the purpose of data exchange.
(S) 1 Program description
1. The B&N software which is the subject of this agreement including the
technical specification and verbal description is listed in Annex 1.
2. The technical specification and the verbal description of the Cybernet
components and possible EDI platforms result from Annex 2.
(S) 2 Distribution licence
1. B&N hereby grants Cybernet an exclusive, non-transferrable and
chronologically and geographically unrestricted distribution right to the
products which are the subject of the agreement according to Annex 1, which
Cybernet may offer to third parties. Furthermore, Cybernet is entitled to
connect these products to Cybernet components and/or process them and to
offer the EDI platform created in this manner under its own brand, while
existing brands of B&N have to be maintained. The exclusiveness of this
licence is solely restricted according to the provisions of & 3.
Distribution by third parties in their own name (e.g. Cybernet resellers)
requires the advance approval of B&N. (S) 16 of this agreement and will not
be affected by it (i.e. connected enterprises may perform distribution
without the permission of B&N in their own name).
2. The contracting parties may agree that the delivery of B&N programs is
replaced by granting the right of reproduction. In such a case Cybernet B&N,
on an order form, has to show the number of copies and the B&N programs
affected in a written statement (reproduction notice) indicating also the
price to be paid.
3. Cybernet may grant its customers a simple licence which is chronologically
and geographically unrestricted in principle. Cybernet must point out any
copyright entries and/or trademarks of B&N. Cybernet in regard to the EDI
platforms acts in its own name and for its own account.
(S) 3 Self-distribution by B&N
1. B&N further has the chance, to distribute EDI platforms in its own name,
while Cybernet components may not be replaced by products or services of a
third party.
2. Where B&N distributes EDI platforms by using Cybernet components, B&N from
Cybernet receives 40% of the communication turnover made, less the Cybernet
standard considerations (example: standard price call & surf DM 0.07 per
minute and EDloverIP DM 0.15/minute; difference DM 0.08/minute; hence the
B&N percentage of turnover corresponds to 40% of DM 0.08/minute = DM
0.032/minute).
(S) 4 Non-recurrent licencing fee
1. From Cybernet, B&N shall receive an amount of DM 2,000,000 (in words: two
million German marks) plus VAT which is payable and due as follows:
by January 1, 2000
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2. B&N is obliged according to the preceding subsection 1 to invest at least a
partial amount of DM 1,500,000.00 net into the further development of B&N
software according to Annex I and into support. The funds are exclusively
used according to the document of use as per Annex III. Cybernet is entitled
to examine the use any time.
(S) 5 Agreement handling
1. Cybernet orders the programs from B&N. This applies also, if the contracting
parties replaced delivery by a right of reproduction. B&N shall accept the
individual order in writing no later than within seven business days.
2. The other details shall be agreed by the parties with common consent on a
project basis.
(S) 6 Prices and price changes
1. The prices according to Annex 1 applicable to the B&N programs which are
the subject of the agreement are shown in Annex 3.
2. Cybernet shall be granted a discount by B&N of 40% of the end consumer
price achieved. The consideration which Cybernet has to pay to B&N
according to the order note is payable within 30 days after delivery or
confirmation of order for a reproduction note by B&N without deduction by
Cybernet.
3. Price increases during the term of the agreement by more than 10% per year
compared with the last standard price list require the mutual agreement by
the parties.
(S) 7 System integration, development cooperation
1. B&N additionally provides Cybernet with the technical information and
personell support required for the development of EDI platforms. The
necessary resources and services are defined jointly by the parties within
the framework of the relevant customer projects.
2. Cybernet and B&N intend to cooperate in the development of EDI platforms.
Advance development is based on a product development plan of B&N which is
coordinated with Cybernet according to a three-month schedule. The customer-
specific extension within the framework of projects shall not be affected by
it.
3. B&N untertakes to ensure the compatibility with the predecessor versions on
all advance developments.
(S) 8 Test and new versions of B&N software
1. B&N within 4 weeks of signing the agreement shall submit to Cybernet the B&N
software which is the subject of the agreement for test purposes to further
the development of EDI platforms.
2. Cybernet will examine the B&N software in regard to product description and
the intended purpose. Here Cybernet will assign this task to technically
versed expert staff having sufficient knowledge of B&N software.
3. Four weeks prior to availability of a new version of B&N software, B&N will
provide Cybernet with this version.
(S) 9 Delivery and support for older versions
During the term of this agreement and up to 12 months after issue of the last-
released version of the B&N software which is the subject of this agreement, B&N
shall keep the last but one status, based on the newest program release,
available.
(S) 10 Support
1. Cybernet assumes responsibility towards its customers for care and
maintenance of EDI platforms.
2. B&N, as support for the maintenance service which must be rendered to
Cybernet customers and for purposes of licence use and realization Cybernet
provides the following maintenance services:
- ensuring the use of B&N software according to the agreement on a
continuous basis
- future releases, updates, upgrades and all follow-up products of B&N
software;
- hotline and second-level support for B&N software components 24hrs x 7
days per week. The processes for the first and second line support are
defined by the parties with comment consent (trouble ticking, customer
identification etc.)
3. For its support services B&N in accordance with the support services
according to the preceding subsection 2, B&N shall receive a percentage of
50% of support turnovers realized by Cybernet with Cybernet customers in
connection with EDI platforms. Where based on the agreement B&N realizes
immediate support turnovers with customers in connection with EDI platforms,
conversely, Cybernet shall receive a percentage of 50% of the support
turnovers of B&N.
(S) 11 Guaranty
1. B&N guarantee that the B&N software meets the specifications according to
Annex 1 and that it has no defects for which B&N is responsible.
2. The guaranty period is twelve months. It starts with the shipment of the B&N
software to Cybernet and/or the acceptance of B&N software as being in
conformity of the agreement.
(S) 12 Rights of third parties
1. B&N vouches for the fact hat the B&N software is free of rights of third
parties excluding or limiting its use. Where the use of the B&N software in
line with the agreement is affected or made impossible by rights claimed by
third parties, B&N shall be committed to change the B&N software in a way or
replace it so that the rights claimed by third parties are no longer
affected while meeting the specifications according to Annex 1.
2. B&N assumes the sole and, as far as its size is concerned, unlimited
liability towards those who claim a violation of their rights by B&N
software. B&N is entitled and committed to handle all disputes resulting
from these claims at its own expense. Where claims by third parties are
raised against Cybernet for violation of their rights by B&N software, B&N
shall indemnify Cybernet -other legal claims notwithstanding - against all
claims (for compensation) and bear all costs associated with such a claim
(e.g. in connection with legal disputes). Cybernet is obliged to inform B&N
immediately, if claims are raised against Cybernet for violation of third
party rights based on B&N software.
(S) 13 Liability
The parties are liable - the legal reason notwithstanding - for damage which
they or a person they have to stand for caused according to the legal
provisions.
(S) 14 Confidentiality and secrecy
1. The parties shall use all business and operating secrets of the other party,
particularly all documents, documentations, drawings, production procedures
and production methods and other know-how of the other party and, where
provided, the source code of computer programs, confidentially and use them
only for the purpose of the agreement.
2. This information may only be made accessible to third parties ,if the party
concerned agrees in writing and if required for the implementation of the
agreement.
(S) 15 Term of agreement and cancellation
1. This agreement takes effect on January 1, 2000. The term is three years.
Unless the agreement is cancelled six months before the end of the
agreement, it shall renew itself for another year.
2. Where B&N cancels the agreement in accordance with the preceding subsection
1, B&N, for a period of 12 months after the agreement, shall be under the
obligation to Cybernet to provide all support services in accordance with
the preceding (S) 12.
3. The right to cancel this agreement for cause remains unaffected. Either
party is particularly entitled to cancel this agreement for cause with
immediate effect, if
a) one of the parties files a bankruptcy petition for its assets in
accordance with (S) 18 InsO or
b) where insolvency proceedings are commenced against the assets of one
of the parties or the commencement of insolvency proceedings are
refused for lack of assets covering the costs or
c) where substantial parts of the assets of either party have been
seized and the cancellation of the seizure has not been proven within
three months from taking effect or no later than exploitation
d) one of the parties has to confirm the correctness of its list of
assets in lieu of an oath
4. The cancellation of this agreement by Cybernet for cause in accordance with
the preceding subsection 3 shall not affect Cybernet`s right to
continuously use and exploit the software of B&N in accordance with the
preceding (S) 2. Cybernet, in the case of cancellation for cause,
has a right to use the source codes and may continue to use them in its own
name and for its own account.
5. The termination of this agreement - regardless of the reason - shall leave
the effect and validity vis-a-vis licences granted to Cybernet prior to
termination of the agreement unaffected.
(S) 15 Associated companies
The companies in which the parties hold a majority interest are also entitled
from this agreement.
(S) 17 Providing security
1. B&N, to provide security for the Cybernet entitlement according to the
preceding (S) 15 subsection 4, is obliged to deposit the source code of B&N
software (including future releases, updates, upgrades and all successor
products) in its latest status version plus the pertaining documentation
with lawyer Xx Xxxxxx as trustee and to leave it there. The costs incurred
shall be borne by Cybernet.
2. The trustee is irrevocably instructed by the parties to release the source
code to Cybernet, if Cybernet cancelled this agreement for cause. For the
purpose of proof - the presentation of a public document (e.g.certificate of
registration) will suffice.
(S) 18 General provisions
1. Where single provisions of this agreement are fully or partly invalid or
void and unenforceable or should there be a gap in this agreement the
validity of the other provisions shall not be affected. In lieu of the
valid or void or unenforceable provision, for filling the gap, a reasonable
provision shall be agreed which - within the scope of what is legally
admissible - is closest to the economic result which the parties sought
through the invalid or unenforceable provision and what according to the
sense and purpose of the agreement they would have primarily sought before
resorting to the legal provisions, had they considered the unregulated
point; it is helpful to agree on it and lay it down in writing.
3. This agreement and its annexes contain all arrangements. Oral subsidiary
arrangements were not made. Amendments to the agreement require the written
form.
4. The court venue where legally admissible is Munich. German law shall apply.
Munich, December 28, 1999
/s/ Illegible Signature /s/ Illegible Signature
