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EXHIBIT 10.18
MASTER RELATIONSHIP AGREEMENT
THIS AGREEMENT made as of the 17th day of February, 2000.
BETWEEN:
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGIES INC., (British Columbia Incorporation
Number: 0394358), with an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇")
OF THE FIRST PART
AND:
kTRAVEL SOLUTIONS INC., with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 98227-5008
(hereinafter called "kTRAVEL SOLUTIONS")
OF THE SECOND PART
(▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and kTravel Solutions collectively called
"Smartsources")
AND:
UNIGLOBE TRAVEL (WESTERN CANADA) INC., with an office at 1600 - ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called the "REGION")
OF THE THIRD PART
WHEREAS:
A. Smartsources specializes in the development of software technology for
Internet-based content and knowledge management;
B. Smartsources has developed a certain Internet application and technology
for deployment of website and portal services;
C. The Region currently has franchise relationships with certain franchisees
and has agreed to promote the Technology to its franchisees;
D. The Region has agreed to facilitate the execution of license agreements for
the Technology between Smartsources and its franchisees;
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E. The Region shall enter into a license agreement with Smartsources to enable
the Region to manage and update the content of its franchisees' kSites (the
"Regional License Agreement"); and
F. The parties wish to set forth the terms and conditions for the mutual
responsibilities of the parties regarding the Technology upon the terms and
conditions herein contained.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants herein set forth, the parties hereto have
covenanted and agreed as follows:
1.0 DEFINITIONS
1.1 In this Agreement:
(a) "AFFILIATED COMPANY" or "AFFILIATED COMPANIES": two or more
corporations where the relationship between them is one in which one
of them is a subsidiary of the other, or both are subsidiaries of the
same corporation, or fifty percent (50%) or more of the voting shares
of each of them is owned by the same person, corporation or other
legal entity;
(b) "BETA TEST": means the initial website and Travel Portals produced by
the Technology and approved by the Region;
(c) "BUSINESS RULINGS": information regarding the day to day operations,
practices, procedures and processes of the Region and the Franchisees
that may be pertinent to Smartsources' responsibilities under this
Agreement;
(d) "COMMENCEMENT DATE": this Agreement will be deemed to have come into
force on the date of execution of this Agreement by Smartsources, and
shall be read and construed accordingly;
(e) "CONFIDENTIAL INFORMATION": any information designated by either party
as confidential, whether orally or in writing but excluding any
information that is:
(i) possessed by the party to which the information is disclosed
(the "Recipient") prior to receipt from the party disclosing the
information (the "Discloser"), other than through prior
disclosure by Discloser, as evidenced by the Recipient's
business records;
(ii) published or available to the general public otherwise than
through a breach of this Agreement;
(iii) obtained by the Recipient from a third party with a valid right
to disclose it, provided that said third party is not under a
confidentiality obligation to the Discloser; or
(iv) independently developed by employees, agents or consultants of
the Recipient who had no knowledge of, or access to, the
Discloser's information as evidenced by the Recipient's business
records.
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(f) "CONTENT PARTNERSHIPS": refers to a set of present and future content
and web application partnerships pre-established by Smartsources to
which the Region is granted access to as part of the Technology under
this Agreement;
(g) "DEPLOYMENT DATE": means the physical deployment date for the
Technology mutually agreed upon by Smartsources and the Region;
(h) "PRODUCT DOCUMENTATION": includes all functional specifications,
operating instructions, user guides, manuals, reference materials,
papers or other materials of any nature whatsoever that are supplied
by Smartsources in conjunction with the Technology;
(i) "ENHANCEMENTS": improvements, variations, updates, modifications, and
enhancements made by Smartsources relating to the Technology at any
time after the Commencement Date;
(j) "FRANCHISEES": means those franchisees of the Region, from time to
time, which as of the Commencement Date are disclosed by the Region in
Schedule "D" to this Agreement;
(k) "HOSTING": means the physical location of servers and facilities from
where the Technology and applications are delivered and serviced to
the Internet on behalf of the Region and the Franchisees;
(l) "HYPERLINK": means an element in an electronic document that links to
another place in the same document or to an entirely different
document;
(m) "INITIAL TRAINING": means the initial training provided by
Smartsources to the Region for the use and operation of the
Technology, as set out in Schedule "A";
(n) "INTERNET TRAVEL RESERVATION ENGINE": means any third party web
application designed to deliver electronic booking and related
functionalities for travel-related reservations;
(o) "kSERVER LICENSE AGREEMENT": means the kServer License Agreement
between a Franchisee and kTravel Solutions, attached as Schedule "C"
hereto;
(p) "kSERVER LICENSEES": means the Franchisees that have executed kServer
License Agreements with Smartsources under Section 2.2(b) of this
Agreement;
(q) "kSITE": means a website produced by the Technology that is licensed
to a Franchisee under the terms and conditions of the License
Agreement;
(r) "MONTHLY LICENCE FEES": means the monthly fees charged by Smartsources
to the Franchisees for the services delivered and support of the
Technology, as set forth in the kServer License Agreement;
(s) "PERSONNEL": means all employees, officers, directors and agents of
Smartsources, any of them;
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(t) "PRIME RATE": means the prime rate of interest charged from time to
time by the main branch at Vancouver of The Royal Bank of Canada. A
certificate signed by a branch manager of The Royal Bank of Canada
stating its prime rate at any time shall be conclusive evidence of the
Prime Rate for the purposes of this Agreement;
(u) "REGION DATA": any and all data specific to the Region generated
and/or collected by the Region and/or Smartsources as part of the
function of the Technology, including but not limited to the Region's
customer profiles, consumer data, databases and/or customer
preferences;
(v) "REVENUE": all revenues, receipts, monies, (and the fair market value
of all other consideration directly or indirectly collected or
received whether by way of cash or credit or any barter, benefit,
advantage, or concession) received by any of the parties to this
Agreement from activities which include but are not limited to the
advertising and electronic commerce activities related to the
Technology and any associated third party technologies, less the
following deductions to the extent included in the amounts invoiced
and thereafter actually allowed and taken:
(i) credit, allowances or refunds given on account of returned
goods;
(ii) transportation charges invoiced separately and actually charged
to third parties; and
(iii) bona fide special rebates provided by either party;
but shall specifically exclude any revenue generated by the sale of
any air, car, hotel reservation, vacation packages or other products
exclusive to the Region that are sold directly or indirectly through
the Technology.
Where any Revenue is derived from a country other than the Canada, it
shall be converted to the equivalent in Canadian dollars on the date
the applicable party is deemed to have received such Revenue pursuant
to the terms hereof at the rate of exchange set on such date by the
Royal Bank of Canada for buying such currency. The amount of Canadian
dollars pursuant to such conversion shall be included in the Revenue.
(w) "SPECIAL REQUIREMENTS": means any additional requirements related to
the Technology, including but not limited to all modifications, extra
capabilities and/or customization requested by the Region for the
Technology:
(i) which are not included in the Product Documentation or the
Technology; and
(ii) which the Region specifically requests in writing to
Smartsources; and
(iii) which Smartsources agrees in writing to develop;
(x) "SPECIAL REQUIREMENTS FEES": means the fees charged by Smartsources to
the Region to meet the Special Requirements, as set forth in Section
7.2;
(y) "STANDARD SMARTSOURCES DOCUMENTS": includes all standard forms and
documentation produced and supplied by Smartsources for purposes which
include but are not limited to requests for Special Requirements,
Supplementary Services, enhancements, feedback, problems, procedural
matters, Business Rulings, and
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otherwise, for the use of the Region and/or the Franchisees in
connection with fulfilling the Region's responsibilities under Article
2.0 herein;
(z) "SUPPLEMENTARY SERVICES": means those training and consulting
services offered by Smartsources to the Region additional to the
Initial Training as described in Section 7.3 and Schedule "A".
(aa) "SUPPLEMENTARY SERVICE FEES": means the fees charged by Smartsources
for Supplementary Services that it provides to the Region, as set
forth in Section 7.3 and Schedule "A" herein, as amended from time to
time by Smartsources;
(bb) "TECHNOLOGY": means any and all knowledge, know-how and/or technique
or techniques invented, developed and/or acquired, prior to the Date
of Commencement by Smartsources relating to and including the
technology, as described in Schedule "B" hereto, as amended from time
to time, and the Product Documentation;
(cc) "TERRITORY": means the geographical boundary within which the
Technology may be used by the Franchisees, consisting of the following
provinces in Canada: British Columbia, Alberta, Saskatchewan,
Manitoba, the Yukon Territory and the Northwest Territories;
(dd) "TIER ONE FRANCHISEES": means the Franchisees that are licensed Tier
One kSites by Smartsources, which shall not exceed 15% of the
Franchisees;
(ee) "TIER ONE kSITE": means a website produced by the Technology without
the Travel Portal functionality, as described in Schedule "B" hereto;
(ff) "USER CONTENT": means the User Content and information specific to
each website, as provided by the Region and/or the Franchisees through
the use of the Technology; and
(gg) "USER SYSTEM": means the computer hardware and software configuration
of the Franchisees required to support and use the Technology;
(hh) "TRAVEL PORTALS": means the personalized travel portals produced with
the Technology that are licensed to a user and described in Schedule
"B" hereto.
2.0 RESPONSIBILITIES OF THE REGION
2.1 The Region shall use its commercially reasonable efforts to actively promote
the Technology to the Franchisees and facilitate the execution of the kServer
License Agreements.
2.2 The Region agrees to deliver executed kServer License Agreements signed by:
(a) no less than 50% of the Franchisees (including Tier One Franchisees)
to Smartsources no later than March 17, 2000 (the "Review Date"); and
(b) no less than 70% of the Franchisees (including Tier One Franchisees,
provided that no more than 15% of the Franchisees shall be Tier One
Franchisees) to Smartsources no later than June 30, 2000.
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The Region agrees that the total number of Tier One Franchisees shall
not exceed 15% of the Franchisees. If the Region is unable to meet its
obligations under this Section 2.2 by the Review Date, the parties shall
re-negotiate the terms of this Master Relationship Agreement and/or the kServer
License Agreement in good faith, including but not limited to fees, pricing and
Revenue terms.
2.3 The Region represents and warrants to Smartsources that Schedule "D" is a
full and complete list of the Franchisees at the date that this Agreement is
executed.
2.4 If the Region complies with its obligations under Section 2.2(a), the
parties agree that the Deployment Date for the Franchisees who have executed
kServer License Agreements by the Review Date shall be five weeks following the
Review Date. If the Region complies with its obligations under Section 2.2(b),
the parties agree that the Deployment Date for the additional Franchisees who
have executed kServer License Agreements by June 30,2000 shall be two weeks
following June 30, 2000. Smartsources shall use its commercially reasonable
efforts to fulfill these Deployment Dates, subject to the following:
(a) the Region and/or Franchisees shall provide Smartsources with
information that Smartsources reasonably requests and requires to
deploy the Technology in a timely fashion;
(b) the Region and/or Franchisees shall not change their Business Rulings
in a manner which impacts Smartsources' ability to deploy the
Technology by the Deployment Date; and
(c) Smartsources shall not be expected to provide Special Requirements
requested by the Region and/or Franchisees if such Special
Requirements delay Smartsources' ability to deploy the Technology by
the Deployment Date.
2.5 The Region must provide any and all requests for Special Requirements,
Supplementary Services, Business Rulings and/or any other modifications and
services required from Smartsources, whether with respect to the Region or to a
Franchisee in the form of a detailed written request submitted to Smartsources
using the Standard Smartsources Documents where provided, or the Region's own
standard memoranda and documentation.
2.6 The Region shall be responsible for all management and administration of the
Franchisees, using the Standard Smartsources Documents where provided, or the
Region's own standard memoranda and documentation and shall include but not be
limited to the following:
(a) managing any oral, written or electronic communications from the
Franchisees, including but not limited to telephone support, written
requests for customization, enhancements and/or training, feedback,
complaints, interruption problems associated with the Hosting;
(b) providing a training and education process to the Franchisees for the
Technology, including handling any requests for Supplementary Services
required by the Franchisees and providing a schedule of Supplementary
Services Fees to the Franchisees as required;
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(c) managing and facilitating any and all required registrations in
association with the kSites, including but not limited to registration
of the kSites with the relevant search engines and registration of
domain names in association with the kSites;
(d) gathering and assimilating any information reasonably requested by
Smartsources from each Franchisee and compiling the same;
(e) distributing the Standard Smartsources Documents, where provided, or
the Region's own standard memoranda and documentation to the
Franchisees to handle any matters related to the Technology; and
(f) gathering and assimilating such forms and documentation received from
the Franchisees into an appropriate summary form and providing such
summary form to Smartsources for its easy reference.
2.7 The Region is responsible for all promotion and marketing of the kSites.
2.8 Smartsources shall provide the Region with procedural advice with respect to
the implementation and use of the Technology as requested by the Region from
time to time, but the Region and the Franchisees shall be responsible for the
supervision, management and control of the Technology as installed in the System
including, but not limited to:
(a) assuring proper machine configuration as set out in Schedule "B",
program up-date installation, audit controls and operating methods;
(b) ensuring that only adequately trained and authorized employees of the
Region and/or Franchisees use the Technology:
(c) implementing sufficient procedures and checkpoints to satisfy
requirements for security and accuracy of data input and output, as
well as establishing and implementing adequate procedures and
safeguards with respect to non-disclosure of the Technology; and
(d) revising and updating the User Content on the kSites, as required from
time to time.
3.0 RESPONSIBILITIES OF SMARTSOURCES
3.1 Smartsources' responsibilities shall be as follows:
(a) providing Hosting for the Region and the Franchisees, as set out under
the kServer License Agreement and the Regional License Agreement;
(b) set-up and installation procedures for the Technology in accordance
with Section 2.4;
(c) providing Initial Training to the Region, as set out in Schedule "A",
subject to the use and operation of the Technology pre-supposing a
minimum level of computer and internet knowledge. Smartsources shall
not be responsible for providing extra training to employees of the
Region that do not possess such minimum knowledge to use and operate
the Technology;
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(d) providing Standard Smartsources Documentation to the Region for its
distribution and use under Article 2.0 herein;
(e) modification of the Technology to support the Special Requirements
upon the written request of the Region;
(f) provide procedural and technical advice and support regarding the
Technology, as reasonably requested by the Region from time to time,
to enable the Region to fulfill its responsibilities to the
Franchisees under Section 2.6;
(g) assign the Smartsources Project Manager and Smartsources Account
Executive, as set out in Section 8.3, to resolve any problems and
issues regarding the Technology;
(h) provision of Supplementary Services to the Region as set out in
Schedule "A" upon the written request of the Region; and
(i) providing a layout for the kSites that is consistent with the graphic
standards, logos, colours, look and feel of the Beta Test (the
"Layout").
3.2 From time to time, Smartsources may alter, modify or design the Layout as
reasonably required by the technical requirements of the Technology and/or
Enhancements.
3.3 If the Region requires a different or unique Layout for the Franchisees than
that provided by Smartsources, the additional services provided by Smartsources
to create such different layout shall be considered Supplementary Services that
will require Supplementary Services Fees to be paid by the Region to
Smartsources in accordance with Schedule "A."
3.4 Smartsources shall be obliged to accept any reasonable User Content produced
by the Region or specifically added by the Region to the kSites.
3.5 Smartsources shall provide credits to the Region and review third party
pricing with respect to the Technology, in accordance with Schedule "A".
3.6 If access to any of the Content Partnerships under Schedule "B" become
unavailable, Smartsources shall make commercially reasonably efforts to provide
an equivalent Content Partnership to be incorporated into the Technology.
3.7 Smartsources shall make commercially reasonable efforts to maintain open
standards for the addition of third party components, software applications,
features and other capabilities in relation to the Technology.
4.0 ADVERTISING
4.1 If the Region requires advertising, it may secure advertising from its
travel-related partnerships in connection with the Technology. Smartsources
shall update advertisements as received from the Region on the first day of each
month commencing from the Commencement Date, provided that the Region provides
reasonable notice to Smartsources to allow Smartsources to make the updates.
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4.2 Any advertising provided by the Region must strictly conform to the
specifications which shall be provided in writing to the Region by Smartsources
upon their availability. Smartsources shall not be responsible for any
modifications required to any advertising provided by the Region to conform to
these specifications.
4.3 Smartsources may secure advertising from its preferred suppliers and/or
partnerships in connection with the Technology.
4.4 The Region represents and warrants that its current preferred suppliers,
partnerships and any entities with which it has existing relationships or
associations in the context of advertising and/or electronic commerce are listed
accurately and disclosed in Schedule "F", as amended from time to time (the
"Preferred Entities"). The Region shall be entitled to reasonably refuse the
advertising offered by Smartsources due to conflicts with the Preferred Entities
and any other internal policy reasons that are sufficiently provided to and
approved by Smartsources.
5.0 REVENUE
5.1 All Revenue with respect to the advertising secured by the Region or
Smartsources shall be apportioned between the parties as set out in Schedule
"E", as amended from time to time and as agreed between the parties. Any
Revenues with respect to electronic commerce, or other relationships shall be
the subject of a separate Schedule to be negotiated between the Region and
Smartsources.
6.0 TERM
6.1 This Agreement shall terminate on the expiration of a term of 5 years from
the Date of Commencement, or the termination of the last KServer License
Agreement, whichever event shall last occur unless earlier terminated pursuant
to Article 14.0 herein.
7.0 SPECIAL REQUIREMENTS AND SUPPLEMENTARY SERVICES
7.1 Smartsources shall not be required to provide any Special Requirements or
Supplementary Services directly to the Franchisees.
7.2 The Region may request Special Requirements from Smartsources in writing. In
consideration for such Special Requirements provided by Smartsources to the
Region, the Region shall pay to Smartsources Special Requirement Fees on the
terms and conditions set out in Schedule "A".
7.3 During the term of this Agreement, and any extensions thereof, Smartsources
shall offer Supplementary Services to the Region. The Region shall provide
Smartsources with a written request for Supplementary Services. In consideration
of the Supplementary Services provided by Smartsources to the Region, the Region
shall pay to Smartsources the Supplementary Service Fees as set forth in
Schedule "A".
7.4 Any outside support, consulting, integration and outsourcing services that
are provided and/or offered by Smartsources under this Agreement in relation to
the Technology intended to be used by the Region requires the prior written
consent of Smartsources (the "Outside Services"). Use of the Outside Services by
the Region in relation to the Technology without Smartsources's prior written
consent constitutes a material breach of this Agreement by the Region.
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The Outside Services does not include general support and consulting services
that are not provided and/or offered by Smartsources under this Agreement.
7.5 In addition to the fees payable hereunder, the Region shall indemnify and
hold harmless Smartsources against all value added, sales, social services,
excise and other taxes, rates and duties chargeable against Smartsources (except
taxes based on net income) arising from the transactions contemplated by this
Agreement.
7.6 All monies payable by the Region to Smartsources under this Agreement shall
be calculated and paid in Canadian Dollars. The manner of payment shall be in a
form deemed acceptable by Smartsources.
7.7 Smartsources shall submit receipts showing payment and/or all current
invoices due for payment under this Agreement to the address of the Region set
out above, or such other address as the Region may direct, in writing.
7.8 The Region shall make timely payment of all monies due to Smartsources under
this Agreement. Late payments shall bear interest on the outstanding amounts due
at the rate of 2% above the Prime Rate in effect from time to time. For the
purposes of determining interest on the amounts outstanding, interest shall be
calculated and compounded monthly using the daily weighted average of the Prime
Rate in effect during such month. Interest accruing from time to time on the
amounts outstanding shall be due and payable monthly in arrears on the last day
of each calendar month.
8.0 PROJECT MANAGERS
8.1 The Region will assign a project manager to facilitate the management of any
matters related to the Technology (the "Region Project Manager"). The Region
Project Manager shall be responsible for facilitating the coordination and
execution of the Region's obligations including but not limited to gathering
information about the Region's procedures (including all Business Rulings),
practices and data as required for the configuration of the Technology on the
Region's System and the development of any Special Requirements, planning and
coordinating the installation of the Technology and a mutually agreeable
Deployment Date, planning and coordinating the Initial Training, and acting as
an effective liaison with Smartsources and the Advisory Committee.
8.2 Smartsources shall assign a project manager to manage any matters related to
the Technology during the period leading up to the Deployment Dates set out in
Section 2.4 (the "Smartsources Project Manager"). The Smartsources Project
Manager shall be responsible for facilitating the functionality of the
Technology, delivery, setup and installation of the Technology and handle any
Special Requirements requested by the Region.
8.3 Smartsources shall assign an account executive to handle inquiries received
from the Region and manage Smartsources' relationship with the Region during the
term of this Agreement (the "Smartsources Account Executive").
8.4 The Region Project Manager, Smartsources Account Executive, and Smartsources
Project Manager shall cooperate and act in good faith to resolve any problems
and issues regarding the Technology. Matters that are unable to be resolved by
these parties shall be escalated to the Advisory Committee for consideration.
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9.0 ADVISORY COMMITTEE
9.1 The parties agree to form an advisory committee comprised of two
representatives from each of Smartsources and the Region (the "Advisory
Committee"). The Advisory Committee shall meet on a regular basis, but no less
than four times a year during the first year of this Agreement, and thereafter
shall establish a meeting schedule deemed suitable by the Advisory Committee.
The parties shall each bear their own expenses in connection with these
meetings. Among other responsibilities, the Advisory Committee will oversee the
relationship between the parties, and will:
(a) review and approve the development of the strategy with respect to
marketing development and distribution of the Technology,
(b) use good faith efforts to attempt to resolve all matters escalated to
the Advisory Committee; and
(c) review, discuss, develop, and if necessary, prioritize opportunities,
whether advertising or electronic commerce-related or otherwise, that
the parties believe are good candidates for the Technology and related
services.
10.0 INTERNET TRAVEL RESERVATION ENGINE
10.1 Smartsources shall facilitate the incorporation of the Internet Travel
Reservation Engine into the Technology by the use of a Hyperlink.
10.2 The Region will be responsible for all agreement, negotiation and purchase
of the Internet Travel Reservation Engine, unless otherwise agreed upon by the
parties. The Region will conduct due diligence to find an Internet Travel
Reservation Engine in accordance with the Region's requirements. If Special
Requirements are required to integrate the Internet Travel Reservation Engine
into the Technology that requires more than the use of a Hyperlink, Smartsources
shall charge the Region for any Special Requirements Fees resulting from such
Special Requirements.
11.0 ENHANCEMENTS
11.1 Smartsources shall have the right, at any time and from time to time, to
modify, expand or enhance the Technology, and the Region shall cooperate fully
with, and allow, Personnel to effect such changes, provided that such changes do
not interfere with, or disrupt the Region's use of the Technology.
12.0 CONFIDENTIALITY AND NON-DISCLOSURE
12.1 The Confidential Information shall be received used or developed by either
party solely in furtherance of the purposes set forth in this Agreement subject
to the terms and conditions set forth in this Article 12.0.
12.2 The parties shall keep and use all of the Confidential Information in
confidence and will not, without the Discloser's prior written consent, disclose
any Confidential Information to any person or entity, except those of the
Recipient's officers, employees or consultants who require the Confidential
Information in performing their obligations under this Agreement.
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12.3 The parties shall not use, either directly or indirectly, any Confidential
Information for any purpose other than as set forth herein without the
Discloser's prior written consent.
12.4 If the Recipient is required by judicial or administrative process to
disclose any or all of the Confidential Information, the Recipient shall
promptly notify the Discloser and allow the Discloser reasonable time to oppose
such process before disclosing any Confidential Information.
12.5 Notwithstanding any termination or expiration of this Agreement, the
obligations created in this Article 12.0 shall survive and be binding on both
parties, their successors and permitted assigns.
12.6 Smartsources covenants and agrees to not disclose any information it
receives concerning the business of the Region without the Region's specific
written consent, or unless such information becomes publicly available through
no action of Smartsources. Smartsources shall take appropriate action with its
employees, by agreement or otherwise, to satisfy its obligations under this
sub-section.
13.0 INDEMNIFICATION BY THE REGION
13.1 The Region recognizes that the Technology and all information in respect
thereto constitute valuable proprietary rights and ownership to Smartsources.
The Region hereby indemnifies, holds harmless and defends Smartsources against
any and all claims, actions, causes of action, suits, proceedings. demands,
assessments, judgments, costs, including reasonable legal costs and other
expenses incidental to the foregoing, damages or liability which may be made or
brought against Smartsources and its successors and assigns by any person or
entity whomsoever directly or indirectly arising out of the use of the
Technology by the Region including, against any damages or losses, consequential
or otherwise, arising from or out of the use of the Technology by the Region
howsoever the same may arise.
13.2 Smartsources recognizes that the Region Data and all information in respect
thereto constitute valuable proprietary rights and ownership to the Region.
Smartsources hereby indemnifies, holds harmless and defends the Region against
any and all claims, actions, causes of action, suits, proceedings, demands,
assessments, judgments, costs, including reasonable legal costs and other
expenses incidental to the foregoing, damages or liability which may be made or
brought against the Region and its successors and assigns by any person or
entity whomsoever directly or indirectly arising from or out of any unauthorised
use of the Region Data by Smartsources including, without limiting the
generality of the foregoing, against any damages or losses, consequential or
otherwise, arising out of any unauthorised use of the Region Data by
Smartsources howsoever the same may arise.
14.0 TERMINATION
14.1 This Agreement may be terminated by Smartsources immediately without notice
prior to the expiration of the term, and any extensions thereof, upon the
following:
(a) the failure by the Region to pay any amounts due hereunder, where such
failure is not fully corrected within 14 days of written notice by
Smartsources to the Region;
(b) the failure or neglect of the Region (the "BREACHING PARTY") to
observe, keep, or perform any of the covenants, terms and conditions
hereunder, where such non-
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performance is not fully corrected by the Breaching Party within 30
days of written notice by the non-Breaching Party to the Breaching
Party; or
(c) any proceeding under the Bankruptcy and Insolvency Act of Canada, or
any other statute of similar purport, is commenced by or against the
Region.
14.2 Smartsources may, at its option, terminate this Agreement immediately
on the happening of any one or more of the following events by
delivering notice in writing to that effect to the Region:
(a) if the Region becomes insolvent;
(b) if any execution, sequestration, or any other process of any court
becomes enforceable against the Region or if any such process is
levied on the rights under this Agreement or on any of the monies due
to Smartsources and is not released or satisfied by the Region within
30 days thereafter;
(c) if any resolution is passed or order made or other steps taken for the
winding up, liquidation or other termination of the existence of the
Region;
(d) if the Region is more than 30 days in arrears of royalties or other
monies that are due to Smartsources under the terms of this Agreement;
(e) if the Region ceases or threatens to cease to carry on its business;
(f) if a controlling interest in the Region passes to any person or
persons other than those having a controlling interest at the Date of
Commencement, whether by reason of purchase of shares or otherwise,
without the prior written consent of Smartsources, which shall not be
unreasonably withheld;
(g) if the Region undergoes a reorganization or any part of its business
relating to this Agreement is transferred to a subsidiary or
associated company without the prior written consent of Smartsources
which shall not be unreasonably withheld;
(h) if the Region makes a material misrepresentation to Smartsources in
relation to this Agreement; or
(i) if less than 60% of the kServer Licensees do not renew or terminate
their kServer License Agreements after the initial 3 year term set out
under the kServer License Agreements.
14.3 The Region agrees and acknowledges that any of its obligations to pay
any outstanding monies under Article 7.0 that are due and payable to
Smartsources at the time of termination shall survive termination.
14.4 Immediately upon any termination of the Agreement for any reason, the
Region shall have no further right of any nature whatsoever in the
Technology or any Enhancements.
14.5 Notwithstanding Section 14.4, upon any termination of the Agreement
for any reason, Smartsources shall make commercially reasonable
efforts to facilitate the transferance of the Region Data to the
Region in a timely fashion. During the term of this Agreement and
after
14
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termination of this Agreement, Smartsources shall not use this information for
any purpose whatsoever (including but not limited to downloading the Region
Data, disclosing the Region Data to third parties, using the Region Data for
commercial or marketing purposes, and data mining of the Region Data by
Smartsources) without the prior written consent of the Region and shall not
prevent the Region from using and/or recording such information for its own
purposes.
15.0 ASSIGNMENT
15.1 The Region will not assign, transfer, mortgage, charge or otherwise
dispose of any or all of its rights, duties or obligations granted to
it under this Agreement without the prior written consent of
Smartsources which shall not be unreasonably withheld. In the event of
such an assignment, such entity shall execute a written agreement
which provides that such entity shall assume all such obligations or
covenants from the Region and that Smartsources shall retain all
rights granted to Smartsources pursuant to this Agreement.
15.2 Smartsources shall have the right to assign its rights, duties and
obligations under this Agreement to an Affiliated Company or
Affiliated Companies of Smartsources. In the event of such an
assignment, the Region will release, remise and forever discharge
Smartsources from any and all obligations or covenants subject to
Section 15.3, provided however that such company executes a written
agreement which provides that such company shall assume all such
obligations or covenants from Smartsources and that the Region shall
retain all rights granted to the Region pursuant to this Agreement.
15.3 For greater certainty, the parties covenant and acknowledge that the
underlying protection set out in Section 16.6, including the
confidentiality and non-disclosure obligations and covenants under
Article 12.0 shall survive any assignment of this Agreement under this
Article 15.0.
16.0 GENERAL
16.1 Any notice, request, demand, consent or other communication provided
or permitted hereunder shall be in writing and given by personal
delivery, transmitted by facsimile to the party whose address and
facsimile number for the receipt of such document is as follows:
(a) If to Smartsources:
Delivery: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------
Suite 100 - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Senior Analyst
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Region:
Delivery: UNIGLOBE TRAVEL (WESTERN CANADA) INC.
------------------------------------
1600 - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
15
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or to such other address for delivery or facsimile as a party may, in writing,
direct. Any notice so given shall be deemed to have been received on the date it
was delivered or transmitted.
16.2 This Agreement shall be governed in all respects by the laws of the
Province of British Columbia, and any dispute thereunder shall be subject to the
exclusive jurisdiction of the British Columbia Courts. The parties irrevocably
attorn to the sole jurisdiction of British Columbia.
16.3 The Region acknowledges and agrees that the Technology constitute valuable
proprietary rights and ownership to Smartsources. The Region acknowledges that
the unauthorized use or release of the Technology except as provided herein,
would result in damages to Smartsources which could not be adequately
compensated for in damages by monetary award. Accordingly, in the event of any
such breach, in addition to all other remedies available at law or in equity,
Smartsources shall be entitled as a matter of right to apply to a court of
competent equitable jurisdiction for relief by way of restraining order,
injunction, decree or otherwise, as may be appropriate to ensure compliance with
this Agreement.
16.4 Time is hereby expressly made of the essence with respect to the
performance of the parties of their respective obligations under this Agreement.
16.5 The parties shall not be held responsible, nor shall either party be
considered in breach of this Agreement, for the failure of either party to
fulfill any terms or provisions hereof if such failure was a result of civil
disorder, war, governmental decrees or laws, acts of enemies, strikes, floods,
acts of God, or by any other cause not within the control of either party and
which could not have been prevented by either party exercising reasonable
diligence.
16.6 The parties hereto hereby covenant and acknowledge that the provisions of
this Agreement with respect to confidentiality under Article 12.0 of this
Agreement and other protection set forth in this Agreement shall survive the
termination of this Agreement.
16.7 No omission or delay of either party hereto in requiring due and punctual
fulfilment by the other party of the obligations of such party hereunder shall
be deemed to constitute a waiver of its right to require due and punctual
fulfilment, or a waiver of any of its remedies hereunder.
16.8 The parties hereto are independent, and neither party is the agent, joint
venture, partner or employee of the other and no party shall be able to bind the
other party.
16.9 The parties covenant and agree to make all applications, execute all other
deeds, documents, instruments and assurances, and do such further and other acts
as may be necessary or desirable to carry out the true intent and meaning of
this Agreement, and to give full effect to the transactions contemplated or
intended hereby.
16.10 This Agreement shall ensure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
16.11 Headings and captions are for the purposes of convenience only, and are
not to be construed as part of this Agreement.
16.12 Terms of computer terminology which are not otherwise defined herein shall
have the meanings normally attributed thereto in the computer industry, unless
the context of the use of such terminology would suggest otherwise.
16
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16.13 This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof, into which all prior negotiation,
commitment, representations and undertakings of the parties are merged and,
except as herein specifically provided, there are no oral or written
understandings or agreements between the parties hereto relating to the subject
matter hereof.
16.14 No amendment or other modification of this Agreement shall be valid or
binding on either party hereto, unless in writing and executed by the parties
hereto.
16.15 This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but such counterparts
together shall constitute but one and the same instrument.
EXECUTED by the parties hereto as of the day and year first above written.
BY ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGIES INC.:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President COO
------------------------------------ ------------------------------
Authorized Signature Title
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ February 18, 2000
------------------------------------ ------------------------------
Name Date
BY KTRAVEL SOLUTIONS INC.:
------------------------------------ ------------------------------
Authorized Signature Title
------------------------------------ ------------------------------
Name Date
BY UNIGLOBE TRAVEL (WESTERN CANADA) INC.:
/s/ ▇. ▇▇▇▇▇▇▇ President
------------------------------------ ------------------------------
Authorized Signature Title
▇. ▇▇▇▇▇▇▇ February 18, 2000
------------------------------------ ------------------------------
Name Date
17
SCHEDULE "A"
INITIAL TRAINING
1.1 Smartsources will provide Initial Training to the Region in the form of
instruction by Personnel (the "Instruction"), and Product Documentation to
the Region. The Instruction provided by Smartsources to the Region shall
not exceed a maximum of 40 hours, and Smartsources shall only be
responsible for providing the Instruction to a maximum of 6 of the Region's
selected employees (the "Training Group").
1.2 The use and operation of the Technology pre-supposes a minimum level of
computer and internet knowledge. The Region shall ensure that the Training
Group that it selects possess a minimum level of computer and internet
knowledge to understand how to use and operate the Technology after
appropriate Instruction. Smartsources shall not be responsible for
providing extra training to employees of the Region that do not possess
such minimum knowledge.
1.3 If the Region requires instruction exceeding the Initial Training, this
shall constitute Supplementary Services and require Supplementary Services
Fees, as set out below.
SUPPLEMENTARY SERVICES FEES
2.1 During the term of this Agreement, and any extensions thereof, Smartsources
shall offer Supplementary Services to the Region.
2.2 The Region shall provide Smartsources with a written request for
Supplementary Services. Smartsources shall provide within a reasonable time
to the Region the Supplementary Services in accordance with, but not
limited to, the following schedule of Supplementary Service Fees:
---------------------------------------------------------------------------------------------------------
Technology Fee per hour (in Canadian dollars)
----------------------------------------------------------------------------------------------------------
Chief Technology Officer $250
----------------------------------------------------------------------------------------------------------
Director, Development $145
----------------------------------------------------------------------------------------------------------
Development Manager $125
----------------------------------------------------------------------------------------------------------
Developer - Database $163
----------------------------------------------------------------------------------------------------------
Developer 3 $175
----------------------------------------------------------------------------------------------------------
Developer 2 $150
----------------------------------------------------------------------------------------------------------
Developer 1 $85
----------------------------------------------------------------------------------------------------------
MIS/Network Specialist 2 $125
----------------------------------------------------------------------------------------------------------
MIS/Network Specialist 1 $90
----------------------------------------------------------------------------------------------------------
Production Manager $155
----------------------------------------------------------------------------------------------------------
Webmaster 3 $150
----------------------------------------------------------------------------------------------------------
Webmaster 2 $96
----------------------------------------------------------------------------------------------------------
Data Conversion Engineer - Lead $90
----------------------------------------------------------------------------------------------------------
Data Conversion Engineers $75
----------------------------------------------------------------------------------------------------------
Quality Assurance $75
----------------------------------------------------------------------------------------------------------
Server Engineers - Lead $250
----------------------------------------------------------------------------------------------------------
Server Engineers - Senior $225
----------------------------------------------------------------------------------------------------------
Server Engineers $180
----------------------------------------------------------------------------------------------------------
18
----------------------------------------------------------------------------------------------------------
PROJECT MANAGEMENT
----------------------------------------------------------------------------------------------------------
Project Manager $145
----------------------------------------------------------------------------------------------------------
Business Analyst $145
----------------------------------------------------------------------------------------------------------
Unit Manager $125
----------------------------------------------------------------------------------------------------------
Senior Producer $105
----------------------------------------------------------------------------------------------------------
Producer $86
----------------------------------------------------------------------------------------------------------
Associate Producer $58
----------------------------------------------------------------------------------------------------------
Indexer $48
----------------------------------------------------------------------------------------------------------
Customer Support & Training $80
----------------------------------------------------------------------------------------------------------
Technical Writer $120
----------------------------------------------------------------------------------------------------------
STUDIO
----------------------------------------------------------------------------------------------------------
Director, Studio $145
----------------------------------------------------------------------------------------------------------
Principal Designer $130
----------------------------------------------------------------------------------------------------------
Designer $120
----------------------------------------------------------------------------------------------------------
Junior Designer $72
----------------------------------------------------------------------------------------------------------
Production Artist $88
----------------------------------------------------------------------------------------------------------
PRODUCT MARKETING
----------------------------------------------------------------------------------------------------------
Director, Product Marketing $155
----------------------------------------------------------------------------------------------------------
Senior Product Manager $96
----------------------------------------------------------------------------------------------------------
Product Manager $77
----------------------------------------------------------------------------------------------------------
Public Relations Associate $85
----------------------------------------------------------------------------------------------------------
BUSINESS DEVELOPMENT
----------------------------------------------------------------------------------------------------------
V.P., Business Development $200
----------------------------------------------------------------------------------------------------------
Director. Business Development $155
----------------------------------------------------------------------------------------------------------
Business Development Associate $90
----------------------------------------------------------------------------------------------------------
Market Requirements Engineer $170
----------------------------------------------------------------------------------------------------------
The Region shall be responsible for the travel, living and per diem costs
for Personnel to undertake the Supplementary Services. These rates are
subject to change from time to time during the term of this Agreement, and
any extensions thereof.
Smartsources shall provide the Region with written notice of any revised
Supplementary Services Fees (the "Notice/s"). The Region shall be
responsible for distributing the Notice/s to the Franchisees. The revised
Supplementary Services Fees shall take effect 30 days after the date of the
applicable Notice.
SPECIAL REQUIREMENTS FEE
3.1 The Region shall provide a detailed written request to Smartsources if the
Region requires Smartsources to modify the Technology to support Special
Requirements.
3.2 SmartSources shall respond within a reasonable time to the Region with a
work specification outlining the time, materials and cost to provide any
Special Requirements requested by the Region (the "Work Spec").
3.3 If the Region accepts the terms of the Work Spec, in consideration of the
services provided by Smartsources to the Region to fulfil the Special
Requirements, the Region shall agree to pay to Smartsources a Special
Requirements Fee, which will be set out in the Work Spec.
19
Region shall be responsible for the travel, living and per diem costs for
Personnel to undertake the Special Requirements.
3.4 If the Region does not proceed with the Special Requirements Smartsources
may still charge a Supplementary Services Fee to the Region for the
consulting services and research required to create the Work Spec.
CREDITS TO THE REGION
4.1 In consideration for the Region's contributions with respect to
facilitating the execution of the kServer License Agreements, Smartsources
shall provide a credit to the Region in the amount of Cdn$500.00 for each
kServer License Agreement executed by a Franchisee (not including the Tier
One Franchisees) within the Territory during the term of this Agreement.
The Region shall not receive a credit for the Tier One Franchisees unless
the Tier One Franchisees decide to upgrade their Tier One kSites to kSites
that include Travel Portals.
4.2 In consideration for the Region's covenants under this Agreement,
Smartsources shall provide a credit to the Region in the amount of 10% of
the Monthly License Fees received by Smartsources within the Territory
during the term of this Agreement.
4.3 Smartsources agrees to:
(a) accept the credits under Sections 4.1 and 4.2 (the "Credits") as
payment by the Region of any Special Requirements and/or Supplementary
Services that the Region requests under Article 7.0 of this Agreement;
or
(b) provide all, or any part of, the outstanding Credits in the form of a
cheque from Smartsources to the Region, within 15 business days of the
Region's written request for such cheque.
THIRD PARTY PRICING
5.0 Smartsources shall review from time to time, but not less than four times a
year, the pricing that Smartsources provides to other third party customers
(the "Third Party Pricing") with respect to the Technology, and compare the
Third Party Pricing to the pricing offered to the Region at that time.
Smartsources agrees that if it discovers any Third Party Pricing that is
lower than the pricing offered to the Region at that time, with respect to
the average Monthly Licensing Fees on the basis of at least $100 Travel
Portals being licensed to each Franchisee, then Smartsources shall offer
the lower Third Party Pricing to the Region.
20
SCHEDULE "B"
DESCRIPTION OF TECHNOLOGY
The kServer technology is described generally as follows:
I. DESIGN & PRESENTATION
1. Provide kSite and Travel Portal interface design and layout in compliance to
Uniglobe trademarks and graphical standards
2. Provide all digital imaging requirements for implementation of a template
3. Facilitate branding and labelling of each kSite.
II. kSITE FUNCTIONALITY
1. A uniquely branded website displaying licensee-specific information
2. Display licensee-specific content published via content authoring tools
3. Display regional produced content syndicated to each licensee kSite
4. Provide self-registration and login features to subscribers
5. Facilitate a hyperlink to third party booking engine
III. Content Authoring
1. Provides online tools to publish content to a kSite via a java-enabled
Internet browser
(a) The Content Authoring Module will enable licensee to:
(b) Create and edit new knowledge bases (Categories)
(c) Create and edit new sub-knowledge bases (Sub-Categories)
(d) Default templates with pre-established slots for uploading of content
(ie specials, news articles etc.);
2. Create new templates with various combinations of slot values:
(i) Text box
(ii) Text area
(iii) Image
(iv) Static Image
(v) Hyper Link
3. Create, edit, post and delete instances (content or article consisting of a
combination of slot values) to a kSite
4. Receive and share knowledge bases and instances published by the Region
IV. TRAVEL PORTAL FUNCTIONALITY & SUBSCRIBER MANAGEMENT
1. Self-registration and creation of personal travel portal
2. Displaying unique name of traveller
3. Destination Content provided by Lonely Planet
4. Self-selection of value-added content
5. Travel portal will include the following value-added content and application
modules:
(a) Weather by Weather Labs
21
(b) Stock Portfolio by Stockpoint
(c) News with modules provided by CNNfn, Washington Post, Fox News,
Information Week, Los Angles Times, ▇▇▇▇.▇▇▇, San ▇▇▇▇ Mercury News,
Time, USA Today, Wired News, ZD Net
(d) Street Maps by Map Quest
(e) Bookmark
(f) Calculator
(g) Census Maps
(h) Discussion Boards
(i) Email
(j) Excite Top News by Reuters
(k) Excite Business News
(l) Excite Tech News by ZDNet
(m) Excite Sport News
(n) Excite Entertainment News by UPI
(o) Excite Health News
(p) Excite Auto Guide
(q) Excite TV Listings
(r) Excite MLB Scores
(s) Excite MLS Scores
(t) Excite NBA Scores
(u) Excite NCAA Football Conferences
(v) Excite NCAA Football Scores
(w) Excite NFL Scores
(x) Excite NHL Scores
(y) Excite Small Business by Quicken
(z) Excite Maps
(aa) Excite Movie Features
(bb) Horoscopes
(cc) News Tracker
(dd) News from Moreover
(ee) News from iSyndicate
(ff) Notes
(gg) Package Tracker
(hh) Search
(ii) Search with GoTo
(jj) Search with RealNames
(kk) Search with iAtlas
(ll) Yellow Pages from iAtlas
6. Subscriber management module will provide the following capabilities:
(a) Create and add new subscribers
(b) View subscriber profiles and pertinent business-specific fields (ie.
first name, last name, company name, email address etc.)
(c) Edit or delete subscriber profiles
(d) Search subscriber profiles by first name and/or last name and/or email
22
The technology provided for the TIER ONE kSITES is described generally as
follows:
1. Provide kSite interface design and layout in compliance to Uniglobe
trademarks and graphical standards
2. Provide all digital imaging requirements for implementation of a template
3. Facilitate branding and labelling of each kSite limited to the following
agency specific data:
(a) Name of Agency
(b) Domain Name as text
(c) Address(es) and Locations
(d) Telephone Number(s)
(e) Facsimile Number(s)
(f) Email Address
(g) Welcome message/About Us
23
SCHEDULE "C"
KSERVER LICENSE AGREEMENT
24
KSERVER LICENSE AGREEMENT
THIS AGREEMENT made as of the ________day of ________________, 2000.
BETWEEN:
KTRAVEL SOLUTIONS INC., with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 98227-5008
(hereinafter called "SMARTSOURCES")
OF THE FIRST PART
AND:
, with an office at__________________________________
___________________________________________________
(hereinafter called the "LICENSEE")
OF THE SECOND PART
WHEREAS:
A. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ specializes in the development of software technology
for Internet-based content and knowledge management;
B. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ has developed a certain Internet application and
technology for deployment of website and portal services;
C. Smartsources has obtained a license from ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to
sublicense the Technology to third parties under the terms and
conditions of this Agreement;
D. The Licensee is a franchisee of the Region, which is defined in
Schedule "E" (the "Region"); and
E. The Licensee shall obtain from Smartsources a non-exclusive license to
use the Technology within the Territory upon the terms and conditions
herein contained.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants herein set forth, the parties hereto have
covenanted and agreed as follows:
1.0 DEFINITIONS
1.1 In this Agreement:
(a) "AFFILIATED COMPANY" or "AFFILIATED COMPANIES": two or more
corporations where the relationship between them is one in which
one of them is a subsidiary of the other, or both are
subsidiaries of the same corporation, or fifty percent (50%) or
more of the voting shares of each of them is owned by the same
person, corporation or other legal entity;
25
-2-
(b) "BETA TEST": means the initial kSite and Travel Portals approved
by the Region;
(c) "COMMENCEMENT DATE": this Agreement will be deemed to have come
into force on the Date of Commencement which shall be the date of
execution of this Agreement by Smartsources, and shall be read
and construed accordingly;
(d) "CONFIDENTIAL INFORMATION": any information designated by either
party as confidential, whether orally or in writing but excluding
any information that is:
(i) possessed by the party to which the information is
disclosed (the "Recipient") prior to receipt from the
party disclosing the information (the "Discloser"), other
than through prior disclosure by Discloser, as evidenced
by the Recipient's business records;
(ii) published or available to the general public otherwise
than through a breach of this Agreement;
(iii) obtained by the Recipient from a third party with a valid
right to disclose it, provided that said third party is
not under a confidentiality obligation to the Discloser;
or
(iv) independently developed by employees, agents or
consultants of the Recipient who had no knowledge of, or
access to, the Discloser's information as evidenced by the
Recipient's business records;
(e) "CONTENT PARTNERSHIPS": refers to a set of present and future
content and web application partnerships established by
Smartsources to which the Licensee is granted access to as part
of the Technology under this Licence;
(f) "DEPLOYMENT DATE": means the physical deployment date for the
Technology determined by Smartsources and approved by the Region;
(g) "DOCUMENTATION": includes all functional specifications,
operating instructions, user guides, manuals, reference
materials, papers or other materials of any nature whatsoever
that are supplied by Smartsources in conjunction with the
Technology;
(h) "ENHANCEMENTS": improvements, variations, updates, modifications,
and enhancements made by Smartsources relating to the Technology
at any time after the Commencement Date;
(i) "HOSTING": means the physical location of servers and facilities
from where the Technology and applications are delivered and
serviced to the Internet;
(j) "INITIAL SET-UP FEE": means the fees charged by Smartsources to
the Licensee for the initial set up and configuration of the User
System for the Technology, as set forth in Section 5.1 and
Schedule "A" hereto;
(k) "INTERNET TRAVEL RESERVATION ENGINE": means any third party web
application designed to deliver electronic booking and related
functionalities for travel-related reservations;
26
-3-
(l) "KSITE": means a website produced by the Technology that is
licensed on the terms and conditions herein contained, and
described in Schedule "B" hereto;
(m) "LICENSEE DATA": any and all data specific to the Licensee
generated and/or collected by the Licensee and/or Smartsources as
part of the function of the Technology, including but not limited
to the Licensee's customer profiles, consumer data, databases
and/or customer preferences;
(n) "MONTHLY LICENCE FEES": means the monthly fees charged by
Smartsources to the Licensee for the services delivered and
support of the Technology, as set forth in Section 5.2 and
Schedule "A" hereto, as amended from time to time by
Smartsources;
(o) "MULTI-BRANCH LICENSEE": means a Licensee that has more than one
branch owned by a single entity;
(p) "PERSONNEL": means all employees, officers, directors and agents
of Smartsources, and any of them;
(q) "PRIME RATE": means the prime rate of interest charged from time
to time by the main branch at Vancouver of The Royal Bank of
Canada. A certificate signed by a branch manager of The Royal
Bank of Canada stating its prime rate at any time shall be
conclusive evidence of the Prime Rate for the purposes of this
Agreement;
(r) "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇": means the head licensor of the Technology,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technologies Inc., a corporation duly
incorporated under the laws of British Columbia;
(s) "TECHNOLOGY": means any and all knowledge, know-how and/or
technique or techniques invented, developed and/or acquired,
prior to the Date of Commencement by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ relating to
and including the Technology, including a specified number of
Travel Portals as described in Schedule "B" hereto, as amended
from time to time and the Documentation; and
(t) "TERRITORY": means the geographical boundary within which the
Technology may be used by the Licensee as described in Schedule
"E" hereto;
(u) "TIER ONE kSITE": means a website produced by the Technology
without the Travel Portal functionality, as described in Schedule
"B" hereto;
(v) "TRAVEL PORTALS": means the personalized travel portals produced
with the Technology that are licensed to a user and described in
Schedule "B" hereto;
(w) "USER CONTENT": means the travel user content and information
specific to each website, as provided by the Licensee and/or the
Region through the use of the Technology; and
(x) "USER SYSTEM": means the computer hardware and software
configuration of the Licensee required to support and use the
Technology, as described in Schedule "C" hereto.
27
-4-
2.0 PROPERTY RIGHTS IN AND TO THE TECHNOLOGY
2.1 The parties hereto hereby acknowledge and agree that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ owns
any and all right, title and interest in and to the Technology. The Licensee
shall, at the request of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, enter into such further agreements
and execute any and all documents as may be reasonably required to ensure that
ownership of the Technology remains with ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The Licensee shall
take all action required with its employees and agents, by agreements or
otherwise, to comply with its obligations under this Agreement with respect to
preventing unauthorized use, copying, modification or other distribution of the
Technology, and the protection and security with respect to the provisions of
this Agreement.
3.0 GRANT OF LICENCE
3.1 In consideration of the Initial Set-Up Fee, Monthly Licence Fees and the
covenants on the part of the Licensee contained herein, Smartsources hereby
grants to the Licensee a non-exclusive, non-transferable limited licence (the
"LICENCE") to use the Technology within the Territory solely upon the terms and
conditions herein contained.
3.2 The Licence herein granted to the Licensee, whose operations office is set
out in Section 13.1, is solely for use of the Technology on the User System for
the purpose of providing the Licensee's customers with access to the Licensee's
products and services via the Internet, upon the specific terms and restrictions
herein contained.
3.3 The Licence does not grant to the Licensee the following rights (without
limiting the generality of the foregoing):
(a) to distribute, sell, lease, transfer, assign, trade, rent,
publish or license the Technology, or any part thereof including
the Documentation and/or copies thereof, to any other entity;
(b) to use the Technology, or any part thereof for any other purpose
other than as set out in this Section 3.2;
(c) to modify, adapt, translate, reverse engineer, decompile,
disassemble, create derivative work or develop any system or
program based on the Technology, except as specifically permitted
in writing by Smartsources:
(d) to secure independent advertising other than that provided by
Smartsources and the Region except as specifically permitted in
writing by Smartsources and the Region;
(e) to include or bring in other technology, applications, or
functionalities in relation to the Technology except as
specifically permitted in writing by Smartsources through the
negotiation and execution of a separate customization agreement
with respect to the same;
(f) to change the Content Partnerships related to the Technology in
any way except as specifically permitted in writing by
Smartsources and the Region; or
(g) to attempt to bring in or hire other organisations for the
purpose of adding to the Content Partnerships to be integrated
into the Technology except as specifically permitted in writing
by Smartsources and the Region.
28
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3.4 The Licensee acknowledges and agrees that Smartsources exclusively owns and
retains any and all right, title and interest to the Technology and agrees to
refrain from any act or omission that derogates from or infringes upon such
exclusive proprietary rights of Smartsources in the Technology. In the event
that the Licensee becomes aware that a third party or third parties are
improperly using the Technology, or any part thereof, or infringing upon any
proprietary rights of Smartsources to the Technology, the Licensee shall
promptly notify Smartsources of all facts known to it relating to such use.
3.5 Smartsources reserves the right to protect, in any and all jurisdictions, by
copyright, patent, trade-▇▇▇▇, trade name and all other forms of legal and
equitable protection, its right, title and interest to the Technology.
3.6 Smartsources agrees not to directly market the Technology to the customers
of the Licensee. Other than this sole restriction, Smartsources may
independently publish, sell, license or distribute the Technology and/or
Enhancements to any third party and in any market, including but not limited to
the Licensee's suppliers, direct and indirect competitors.
3.7 Smartsources reserves the right to fulfil its contractual and/or legal
obligations to third parties associated with the Technology, subject to such
obligations not interfering with the core functionalities of the Technology as
described in Schedule "B".
4.0 TERM
4.1 The Licence herein granted is effective as of the Commencement Date, and
shall continue for 3 years (the "CURRENT TERM") unless terminated in accordance
with this Agreement. Upon completion of the Current Term, the Licence herein
granted shall be automatically renewed on a yearly basis (the "RENEWAL TERM")
thereafter, upon the terms and conditions herein contained, mutatis mutandis,
subject to the following:
(a) the Licensee shall not be entitled to an automatic renewal if it
is in material breach of any of the terms of this Agreement and
Smartsources shall be entitled to termination of this Agreement
under Article 11.0 of this Agreement; or
(b) if the Licensee wishes not to renew the Licence, the Licensee
shall notify Smartsources of its intention to not renew by way of
written notice sent to Smartsources 45 days prior to the
expiration of the then current term.
Smartsources shall not charge the Licensee any renewal fees for
any automatic renewals by the Licensee under this Section 4.1.
4.2 The Licence granted herein is personal to the Licensee and is not granted to
any of the Licensee's Affiliated Company or Affiliated Companies.
5.0 FEES
5.1 At least 15 days prior to the installation and delivery of the Technology to
the Licensee, the Licensee shall:
(a) provide any agency-specific content of the Licensee reasonably
requested by Smartsources to implement the Technology on the User
System; and
29
-6-
(b) pay the Initial Set-Up Fee to Smartsources as set out in
Schedule "A".
5.2 In further consideration for the license granted hereunder, the Licensee
shall, commencing on the Commencement Date, and continuing thereafter prior to
the first of each and every month during the term of the Licence herein granted,
and any extensions thereof, pay to Smartsources the Monthly Licence Fees
according to the number of Travel Portals associated with the Technology as set
forth in Schedule "A". Multi-Branch Licensees shall pay the Monthly License Fees
according to the aggregate number of Travel Portals licensed to all of its
branches that request a kSite, as set forth in Schedule "A".
5.3 Smartsources shall not be required to provide any training for the use and
operation of the Technology directly to the Licensee. Smartsources shall only
provide training, consulting and any other supplementary services to the Region.
5.4 Any outside support, consulting, integration and outsourcing services in
relation to the Technology intended to be used by the Licensee requires the
prior written consent of Smartsources. Use of such outside services by the
Licensee in relation to the Technology without Smartsources's prior written
consent constitutes a material breach of this Agreement by the Licensee.
5.5 In addition to the Licence Fees payable hereunder, the Licensee shall
indemnify and hold harmless Smartsources against all value added, sales, social
services, excise and other taxes, rates and duties chargeable against
Smartsources (except taxes based on net income) arising from the transactions
contemplated by this Agreement.
5.6 All monies payable by the Licensee to Smartsources under this Agreement
shall be calculated and paid in Canadian Dollars and shall be paid by
pre-authorized payment from the Licensee's account, which information should be
provided by the Licensee to Smartsources in the form of the attached Schedule
"D".
5.7 Smartsources shall submit receipts showing payment and/or all current
invoices due for payment under this Agreement to the address of the Licensee set
out above, or such other address as the Licensee may direct, in writing.
5.8 The Licensee shall arrange with its pre-authorization payment account to
make timely payment of all monies due to Smartsources under this Agreement. Late
payments shall bear interest on the outstanding amounts due at the rate of 2%
above the Prime Rate in effect from time to time. For the purposes of
determining interest on the amounts outstanding, interest shall be calculated
and compounded monthly using the daily weighted average of the Prime Rate in
effect during such month. Interest accruing from time to time on the amounts
outstanding shall be due and payable monthly in arrears on the last day of each
calendar month.
6.0 RESPONSIBILITIES
6.1 Smartsources shall provide the Licensee with the Documentation with respect
to the implementation and use of the Technology, but the Licensee shall be
solely responsible for the supervision, management and control of the Technology
as installed in the User System including, but not limited to:
(a) assuring proper machine configuration as set out in Schedule "C",
program up-date installation, audit controls and operating
methods;
30
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(b) all required registrations in association with its kSite,
including but not limited to registration of the kSite with the
relevant search engines and registration of domain names in
association with the kSite;
(c) establishing adequate backup plans based on alternative hardware,
fault tolerant systems or manual procedures as well as re-start
and recovery procedures in the event of downtime;
(d) ensuring that only adequately trained and authorized employees
use the Technology;
(e) implementing sufficient procedures and checkpoints to satisfy
requirements for security and accuracy of data input and output,
as well as establishing and implementing adequate procedures and
safeguards with respect to non-disclosure of the Technology; and
(f) revising and updating the User Content as required from time to
time.
6.2 A Multi-Branch Licensee shall be solely responsible for each of
its branches, including but not limited to:
(a) handling a request for a kSite from a branch and providing
sufficient written notification thereof to Smartsources;
(b) providing a copy of this Agreement to each of its branches that
requests a kSite to ensure that each branch is reasonably
familiar with its obligations as a licensee of the Technology:
and
(c) ensuring that each of its branches complies with Smartsources'
reasonable requests for information to ensure that Smartsources
is able to fulfill its responsibilities under Section 6.2 of this
Agreement.
6.3 Smartsources shall be responsible for:
(a) providing Hosting for the Licensee, commencing from the
Deployment Date, subject to Smartsources reserving the right to
obtain such Hosting from an outside source;
(b) set-up and installation procedures for the Technology on or
before the Deployment Date; and
(c) providing a layout for the Licensee's KSite that is consistent
with the graphic standards, logos, colours, look and feel of the
Beta Test (the "Layout").
6.4 From time to time, Smartsources may alter, modify or design the
Layout as reasonably required by the technical requirements of the Technology
and/or Enhancements.
6.5 Smartsources shall be obliged to accept any reasonable User
Content produced by the Region or specifically added by the Licensee to the
Licensee's website.
31
-8-
7.0 LIMITED WARRANTY AND LIMITATIONS OF LIABILITY
7.1 Smartsources warrants to maintain the reasonable availability of the
Technology via the Internet to the Licensee.
7.2 The above warranty is in lieu of any and all other warranties expressed,
implied or statutory, including, but not limited to, any implied warranties of
merchantability or fitness for a particular purpose, durability for a reasonable
period of time, and any other warranty implied at law or in equity. The Licensee
expressly waives any such warranties as may be imposed by law. Smartsources
makes no representations regarding the use or the results of use of the
Technology in terms of correction, accuracy, reliability or otherwise other than
under Section 7.1.
7.3 Without limiting the generality of the foregoing, neither the support
services nor the warranties herein granted shall extend to the rectification of
failures resulting from:
(a) any error, defect, or malfunction associated with the Licensees'
customers' use of the Internet Travel Reservation Engine;
(b) the accuracy and/or reliability of the User Content on the
Licensee's website;
(c) any error, defect, or malfunction associated with the Licensees'
customers' use of the applications associated with the Content
Partnerships;
(d) the accuracy and/or reliability of the content and information
provided by the Content Partnerships;
(e) a defect in, or malfunction of, the designated hardware or any
other Licensee equipment in the User System;
(f) the use of the Technology on computer hardware or a computer
configuration other than the User System;
(g) electrostatic discharge or magnetic fields;
(h) the misuse of the Technology or its use in conjunction with any
other Technology;
(i) failure to keep all or part of any equipment clean;
(j) any damage occasioned by acts of war, civil unrest, or acts of
God; or
(k) the usage of the Technology to produce a result that is deemed by
Smartsources to be in conflict with the design of the Technology;
(l) any alteration or modification of the Technology in any way by
the Licensee or a third party;
(m) any other cause not within the control of Smartsources and which
could not be prevented by the exercise of reasonable diligence by
Smartsources.
7.4. In no event shall Smartsources be liable for direct, indirect, special or
consequential damages (including damages for loss of business profits, business
interruption, loss of business
32
-9-
information) arising from any defect, error, fault, or failure to perform with
respect to the Technology even if Smartsources has been advised of the
possibility of such defect, error, fault, or failure. The Licensee acknowledges
that it has been advised by Smartsources to undertake its own due diligence with
respect to the Technology. Each party's liability on any claim shall under no
circumstances exceed the amounts due or paid by the Licensee to use the
Technology under this Agreement.
7.5 The Licensee agrees that its sole remedy arising from a breach of the
limited warranty contained in Section 7.1 is to notify Smartsources in writing
of an interruption of the Hosting service (the "Notice"). If the Licensee
continues not to have access to the Technology for a consecutive period of 30
days following the date that Notice was provided to Smartsources, the Licensee
may then, at its option, terminate this Agreement in accordance with Article
11.0.
7.6 The Licensee acknowledges that web-based technology in general is not error
free and agrees that the existence of such errors shall not constitute a breach
of this Agreement. If the Licensee discovers a defect in the Technology, it
shall provide a reasonably detailed written description of the defect to
Smartsources (the "Defect"). Thereupon, Smartsources shall use its reasonably
efforts to correct the Defect, provided that Smartsources is satisfied that the
Defect is of a nature of a malfunction, as opposed to a modification of the
Technology.
7.7 In the event that the Defect cannot be corrected, the Licensee's only remedy
is to terminate the Agreement without any recourse in damages against
Smartsources.
8.0 ENHANCEMENTS
8.1 Smartsources shall have the right, at any time and from time to time, to
modify, expand or enhance the Technology, and the Licensee shall cooperate fully
with, and allow, Personnel to effect such changes, provided that such changes do
not interfere with, or disrupt the Licensee's use of the Technology.
9.0 CONFIDENTIALITY AND NON-DISCLOSURE
9.1 The Confidential Information shall be received used or developed by either
party solely in furtherance of the purposes set forth in this Agreement subject
to the terms and conditions set forth in this Article 9.0.
9.2 The parties shall keep and use all of the Confidential Information in
confidence and will not, without the Discloser's prior written consent, disclose
any Confidential Information to any person or entity, except those of the
Recipient's officers, employees or consultants who require the Confidential
Information in performing their obligations under this Agreement.
9.3 The parties shall not use, either directly or indirectly, any Confidential
Information for any purpose other than as set forth herein without the
Discloser's prior written consent.
9.4 If the Recipient is required by judicial or administrative process to
disclose any or all of the Confidential Information, the Recipient shall
promptly notify the Discloser and allow the Discloser reasonable time to oppose
such process before disclosing any Confidential Information.
9.5 Notwithstanding any termination or expiration of this Agreement, the
obligations created in this Article 9.0 shall survive and be binding on both
parties, their successors and permitted assigns.
33
-10-
9.6 Smartsources covenants and agrees to not disclose any information it
receives concerning the business of the Licensee without the Licensee's specific
written consent, or unless such information becomes publicly available through
no action of Smartsources. Smartsources shall take appropriate action with its
employees, by agreement or otherwise, to satisfy its obligations under this
sub-section.
10.0 INDEMNIFICATION BY THE LICENSEE
10.1 The Licensee recognizes that the Technology and all information in respect
thereto constitute valuable proprietary rights and ownership to Smartsources.
The Licensee hereby indemnifies, holds harmless and defends Smartsources against
any and all claims, actions, causes of action, suits, proceedings, demands,
assessments, judgments, costs, including reasonable legal costs and other
expenses incidental to the foregoing, damages or liability which may be made or
brought against Smartsources and its successors and assigns by any person or
entity whomsoever directly or indirectly arising out of the exercise of any
rights under this Agreement including, without limiting the generality of the
foregoing, against any damages or losses, consequential or otherwise, arising
from or out of the use of the Technology by the Licensee howsoever the same may
arise.
11.0 TERMINATION
11.1 This Agreement may be terminated by Smartsources immediately without notice
prior to the expiration of the term, and any extensions thereof, upon the
following:
(a) the failure by the Licensee to pay any amounts due hereunder,
where such failure is not fully corrected within 14 days of
written notice by Smartsources to the Licensee;
(b) the failure or neglect of the Licensee (the "BREACHING PARTY") to
observe, keep, or perform any of the covenants, terms and
conditions hereunder, where such non-performance is not fully
corrected by the Breaching Party within 30 days of written notice
by the non-Breaching Party to the Breaching Party; or
(c) any proceeding under the Bankruptcy and Insolvency Act of Canada,
or any other statute of similar purport, is commenced by or
against the Licensee.
11.2 Smartsources may, at its option, terminate this Agreement immediately on
the happening of any one or more of the following events by delivering notice in
writing to that effect to the Licensee:
(a) if the Licensee becomes insolvent;
(b) if any execution, sequestration, or any other process of any
court becomes enforceable against the Licensee or if any such
process is levied on the rights under this Agreement or on any of
the monies due to Smartsources and is not released or satisfied
by the Licensee within 30 days thereafter;
(c) if any resolution is passed or order made or other steps taken
for the winding up, liquidation or other termination of the
existence of the Licensee;
34
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(d) if the Licensee is more than 30 days in arrears of royalties or
other monies that are due to Smartsources under the terms of this
Agreement;
(e) if the Licensee ceases or threatens to cease to carry on its
business;
(f) if the Licensee makes a material misrepresentation to
Smartsources in relation to this Agreement;
(g) if the Region's relationship with Smartsources is terminated; or
(h) if the Licensee's franchise relationship with the Region is
terminated.
11.3 Either party may terminate the Licence herein by notifying the other party
in writing at least 45 days prior to the end of the Current Term or Renewal
Terms, as applicable, of its intention to terminate this Agreement.
11.4 Immediately upon any termination of the Licence herein granted for any
reason, the Licensee shall:
(a) immediately cease using the Technology, or any part thereof, in
any manner whatsoever;
(b) return or immediately destroy, or cause to be destroyed, all
copies, backups and versions of the Technology licensed herein;
(c) immediately return to Smartsources all Documentation provided
with, generated by or descriptive of the Technology; and
(d) forthwith furnish to Smartsources a certificate in form and
substance satisfactory to Smartsources certifying to the
destruction of the Technology licensed herein and the return of
all Documentation.
11.5 The Licensee agrees and acknowledges that any of its obligations to pay any
outstanding monies under Article 5.0 that are due and payable to Smartsources at
the time of termination shall survive termination.
11.6 Immediately upon any termination of the Licence for any reason, the
Licensee shall have no further right of any nature whatsoever in the Technology
or any Enhancements.
11.7 Smartsources recognizes that the Licensee Data and all information in
respect thereto constitute valuable proprietary rights and ownership to the
Licensee. During the term of this Agreement and after termination of this
Agreement, Smartsources shall not use the Licensee Data for any purpose
whatsoever (including but not limited to downloading the Licensee Data,
disclosing the Licensee Data to third parties, using the Licensee Data for
commercial or marketing purposes, and data mining of the Licensee Data by
Smartsources) without the prior written consent of the Licensee.
12.0 ASSIGNMENT
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12.1 The Licensee shall have the right to assign its rights, duties and
obligations under this Agreement to another entity, provided however that such
entity executes a written agreement which provides that such entity shall assume
all such obligations or covenants from the Licensee and that Smartsources shall
retain all rights granted to Smartsources pursuant to this Agreement.
12.2 Smartsources shall have the right to assign its rights, duties and
obligations under this Agreement to any of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, an Affiliated
Company or Affiliated Companies of Smartsources, or an Affiliated Company or
Affiliated Companies of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. In the event of such an assignment,
the Licensee will release, remise and forever discharge Smartsources from any
and all obligations or covenants, provided however that such company executes a
written agreement which provides that such company shall assume all such
obligations or covenants from Smartsources and that the Licensee shall retain
all rights granted to the Licensee pursuant to this Agreement.
13.0 GENERAL
13.1 Any notice, request, demand, consent or other communication provided or
permitted hereunder shall be in writing and given by personal delivery,
transmitted by facsimile to the party whose address and facsimile number for the
receipt of such document is as follows:
(a) If to Smartsources:
Delivery: kTRAVEL SOLUTIONS INC.,
----------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Facsimile:
(b) If to the Licensee:
Delivery: _______________________
________________
________________
________________
Attention:_________________
Facsimile:_________________
or to such other address for delivery or facsimile as a party may, in writing,
direct. Any notice so given shall be deemed to have been received on the date it
was delivered or transmitted.
13.2 This Agreement shall be governed in all respects by the laws of the
Province of British Columbia, and any dispute thereunder shall be subject to the
exclusive jurisdiction of the British Columbia Courts. The parties irrevocably
attorn to the sole jurisdiction of British Columbia.
13.3 The Licensee acknowledges and agrees that the Technology constitute
valuable proprietary rights and ownership to Smartsources. The Licensee
acknowledges that the unauthorized use or release of the Technology except as
provided herein, would result in damages
36
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to Smartsources which could not be adequately compensated for in damages by
monetary award. Accordingly, in the event of any such breach, in addition to all
other remedies available at law or in equity, Smartsources shall be entitled as
a matter of right to apply to a court of competent equitable jurisdiction for
relief by way of restraining order, injunction, decree or otherwise, as may be
appropriate to ensure compliance with this Agreement.
13.4 Time is hereby expressly made of the essence with respect to the
performance of the parties of their respective obligations under this Agreement.
13.5 The parties shall not be held responsible, nor shall either party be
considered in breach of this Agreement, for the failure of either party to
fulfill any terms or provisions hereof if such failure was a result of civil
disorder, war, governmental decrees or laws, acts of enemies, strikes, floods,
acts of God, or by any other cause not within the control of either party and
which could not have been prevented by either party exercising reasonable
diligence.
13.6 The parties hereto hereby covenant and acknowledge that the provisions of
this Agreement with respect to confidentiality under Article 9.0 of this
Agreement and other protection set forth in this Agreement shall survive the
termination of this Agreement.
13.7 No omission or delay of either party hereto in requiring due and punctual
fulfilment by the other party of the obligations of such party hereunder shall
be deemed to constitute a waiver of its right to require due and punctual
fulfilment, or a waiver of any of its remedies hereunder.
13.8 The parties hereto are independent, and neither party is the agent, joint
venture, partner or employee of the other and no party shall be able to bind the
other party.
13.9 The parties covenant and agree to make all applications, execute all other
deeds, documents, instruments and assurances, and do such further and other acts
as may be necessary or desirable to carry out the true intent and meaning of
this Agreement, and to give full effect to the transactions contemplated or
intended hereby.
13.10 This Agreement shall ensure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
13.11 Headings and captions are for the purposes of convenience only, and are
not to be construed as part of this Agreement.
13.12 Terms of computer terminology which are not otherwise defined herein shall
have the meanings normally attributed thereto in the computer industry, unless
the context of the use of such terminology would suggest otherwise.
13.13 This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof, into which all prior negotiation,
commitment, representations and undertakings of the parties are merged and,
except as herein specifically provided, there are no oral or written
understandings or agreements between the parties hereto relating to the subject
matter hereof.
13.14 No amendment or other modification of this Agreement shall be valid or
binding on either party hereto, unless in writing and executed by the parties
hereto.
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13.15 This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but such counterparts
together shall constitute but one and the same instrument.
EXECUTED by the parties hereto as of the day and year first above written.
BY ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGIES INC.:
--------------------------------------- ----------------------------------
Authorized Signature Title
--------------------------------------- ----------------------------------
Name Date
:
---------------------------------------
BY
--------------------------------------- ----------------------------------
Authorized Signature Title
--------------------------------------- ----------------------------------
Name Date
38
SCHEDULE "A"
MONTHLY LICENSE FEES
1.1 During the term of the Licence herein granted, and any extensions thereof,
the Licensee shall pay to Smartsources a minimum Monthly License Fee of
CDN$l50.00, commencing on the Commencement Date, and continuing thereafter
prior to the first of each and every month.
1.2 At any time, the Licensee or Multi-Branch Licensee may choose to change the
maximum number of Travel Portals managed by the Technology and then would
agree to pay the corresponding Monthly License Fee according to the
following:
----------------------------------------------------------------------------------------------------
PRICE PER ADDITIONAL
NUMBER OF TRAVEL PORTALS TRAVEL PORTAL MONTHLY LICENSING FEE
----------------------------------------------------------------------------------------------------
0 (Tier One kSite) Tier One fee $ 25.00
----------------------------------------------------------------------------------------------------
50 Basic subscription fee $ 150.00
----------------------------------------------------------------------------------------------------
75 $ 0.5000 $ 162.50
----------------------------------------------------------------------------------------------------
100 $ 0.4963 $ 174.82
----------------------------------------------------------------------------------------------------
125 $ 0.4926 $ 186.95
----------------------------------------------------------------------------------------------------
150 $ 0.4889 $ 198.89
----------------------------------------------------------------------------------------------------
175 $ 0.4852 $ 210.65
----------------------------------------------------------------------------------------------------
200 $ 0.4815 $ 222.23
----------------------------------------------------------------------------------------------------
225 $ 0.4778 $ 233.62
----------------------------------------------------------------------------------------------------
250 $ 0.4741 $ 244.82
----------------------------------------------------------------------------------------------------
275 $ 0.4704 $ 255.84
----------------------------------------------------------------------------------------------------
300 $ 0.4667 $ 266.68
----------------------------------------------------------------------------------------------------
325 $ 0.4630 $ 277.33
----------------------------------------------------------------------------------------------------
350 $ 0.4593 $ 287.80
----------------------------------------------------------------------------------------------------
375 $ 0.4556 $ 298.08
----------------------------------------------------------------------------------------------------
400 $ 0.4519 $ 308.17
----------------------------------------------------------------------------------------------------
425 $ 0.4482 $ 318.08
----------------------------------------------------------------------------------------------------
450 $ 0.4445 $ 327.81
----------------------------------------------------------------------------------------------------
475 $ 0.4408 $ 337.35
----------------------------------------------------------------------------------------------------
500 $ 0.4371 $ 346.71
----------------------------------------------------------------------------------------------------
525 $ 0.4334 $ 355.88
----------------------------------------------------------------------------------------------------
550 $ 0.4297 $ 364.86
----------------------------------------------------------------------------------------------------
575 $ 0.4260 $ 373.67
----------------------------------------------------------------------------------------------------
600 $ 0.4223 $ 382.28
----------------------------------------------------------------------------------------------------
625 $ 0.4186 $ 390.71
----------------------------------------------------------------------------------------------------
650 $ 0.4149 $ 398.96
----------------------------------------------------------------------------------------------------
675 $ 0.4112 $ 407.02
----------------------------------------------------------------------------------------------------
700 $ 0.4075 $ 414.90
----------------------------------------------------------------------------------------------------
725 $ 0.4038 $ 422.59
----------------------------------------------------------------------------------------------------
750 $ 0.4001 $ 430.10
----------------------------------------------------------------------------------------------------
775 $ 0.3964 $ 437.42
----------------------------------------------------------------------------------------------------
800 $ 0.3927 $ 444.56
----------------------------------------------------------------------------------------------------
825 $ 0.3890 $ 451.51
----------------------------------------------------------------------------------------------------
850 $ 0.3853 $ 458.28
----------------------------------------------------------------------------------------------------
875 $ 0.3817 $ 464.86
----------------------------------------------------------------------------------------------------
900 $ 0.3780 $ 471.26
----------------------------------------------------------------------------------------------------
39
----------------------------------------------------------------------------------------------------
925 $ 0.3743 $ 477.47
----------------------------------------------------------------------------------------------------
950 $ 0.3706 $ 483.50
----------------------------------------------------------------------------------------------------
975 $ 0.3669 $ 489.34
----------------------------------------------------------------------------------------------------
1000 $ 0.3632 $ 495.00
----------------------------------------------------------------------------------------------------
>1000, ,<=3500 n/a $500.00
----------------------------------------------------------------------------------------------------
For Travel Portals greater than 3500, the Monthly Licensing Fee will
continue to increase at the same incremental scale according to the number of
Travel Portals as the Monthly Licensing Fees from 1,000 to 3,500 Travel Portals
set out in the above table. An additional Monthly License Fees schedule for
Travel Portals greater than 3500 can be provided to the Licensee by Smartsources
at the Licensee's request.
1.3 During any Renewal Term of the Licence, the Licensee shall pay a Monthly
Licence Fee at the then current rate charged by Smartsources, in similar
manner to that paid during the Current Term.
INITIAL SET-UP FEE
2.1 The Initial Set-Up Fee shall be the amount of CDN$2000.00, subject to
Sections 2.2 and 2.3.
2.2 If the Licensee is licensing a Tier One kSite from Smartsources, the
Initial Set-Up Fee shall be the amount of CDN$500.00.
23 If the Licensee is a Multi-Branch Licensee, the Initial Set-Up Fee shall
be:
(a) CDN$2000.00 for the first branch owned by the Multi-Branch Licensee
that requests a kSite; and
(b) CDN$500.00, for each subsequent branch owned by the Multi-Branch
Licensee that requests a kSite.
2.4 All Initial Set-Up Fees are due and payable by the Licensee to Smartsources
at least 15 days prior to the installation and delivery of the Technology to
the Licensee.
40
SCHEDULE "B"
DESCRIPTION OF TECHNOLOGY
The kServer technology is described generally as follows:
I. DESIGN & PRESENTATION
1. Provide kSite and Travel Portal interface design and layout in compliance
to Uniglobe trademarks and graphical standards
2. Provide all digital imaging requirements for implementation of a template
3. Facilitate branding and labeling of each kSite.
II. kSITE FUNCTIONALITY
1. A uniquely branded website displaying licensee-specific information
2 Display licensee-specific content published via content authoring tools
3. Display regional produced content syndicated to each kSite
4 Provide self-registration and login features to subscribers
5. Facilitate a hyperlink to third party booking engine
III. CONTENT AUTHORING
1. Provides online tools to publish content to a kSite via a java-enabled
Internet browser
(a) The Content Authoring Module will enable licensee to:
(b) Create and edit new knowledge bases (Categories)
(c) Create and edit new sub-knowledge bases (Sub-Categories)
(d) Default templates with pre-established slots for uploading of content
(ie specials, news articles etc.);
2. Create new templates with various combinations of slot values:
(i) Text box
(ii) Text area
(iii) Image
(iv) Static Image
(v) Hyper Link
3. Create, edit, post and delete instances (content or article consisting of a
combination of slot values) to a kSite
4. Receive and share knowledge bases and instances published by the Region
IV. TRAVEL PORTAL FUNCTIONALITY & SUBSCRIBER MANAGEMENT
1. Self-registration and creation of personal travel portal
2. Displaying unique name of traveler
3. Destination Content provided by Lonely Planet
4. Self-selection of value-added content
5. Travel portal will include the following value-added content and
application modules:
(a) Weather by Weather Labs
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(b) Stock Portfolio by Stockpoint
(c) News with modules provided by CNNfn, Washington Post, Fox News,
Information Week, Los Angles Times, ▇▇▇▇.▇▇▇, San ▇▇▇▇ Mercury
News, Time, USA Today, Wired News, ZD Net
(d) Street Maps by Map Quest
(e) Bookmark
(f) Calculator
(g) Census Maps
(h) Discussion Boards
(i) Email
(j) Excite Top News by Reuters
(k) Excite Business News
(l) Excite Tech News by ZDNet
(m) Excite Sport News
(n) Excite Entertainment News by UPI
(o) Excite Health News
(p) Excite Auto Guide
(q) Excite TV Listings
(r) Excite MLB Scores
(s) Excite MLS Scores
(t) Excite NBA Scores
(u) Excite NCAA Football Conferences
(v) Excite NCAA Football Scores
(w) Excite NFL Scores
(x) Excite NHL Scores
(y) Excite Small Business by Quicken
(z) Excite Maps
(aa) Excite Movie Features
(bb) Horoscopes
(cc) News Tracker
(dd) News from Moreover
(ee) News from iSyndicate
(ff) Notes
(gg) Package Tracker
(hh) Search
(ii) Search with GoTo
(jj) Search with RealNames
(kk) Search with iAtlas
(ll) Yellow Pages from iAtlas
6. Subscriber management module will provide the following capabilities:
(a) Create and add new subscribers
(b) View subscriber profiles and pertinent business-specific fields
(ie. first name, last name, company name, email address etc.)
(C) Edit or delete subscriber profiles
(d) Search subscriber profiles by first name and/or last name and/or
email
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The technology provided for the TIER ONE kSITES is described generally as
follows:
1. Provide kSite interface design and layout in compliance to Uniglobe
trademarks and graphical standards
2. Provide all digital imaging requirements for implementation of a template
3. Facilitate branding and labelling of each kSite limited to the following
agency specific data:
(a) Name of Agency
(b) Domain Name as text
(c) Address(es) and Locations
(d) Telephone Number(s)
(e) Facsimile Number(s)
(f) Email Address
(g) Welcome message/About Us
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SCHEDULE "C"
COMPUTER SOFTWARE AND HARDWARE REQUIREMENTS FOR TECHNOLOGY
1. The Licensee shall require an Internet connection.
2. The Licensee shall require one of the following Internet browsers: Microsoft
Internet Explorer 4.0 or Netscape 4.0 (the "Browser"). The Licensee shall be
required to ensure that it has the necessary system requirements as set out
in the respective Browser's hardware requirements list.
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SCHEDULE "D"
PRE-AUTHORIZATION PAYMENT FORM TO BE PROVIDED BY LICENSEE
(to be attached)
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SCHEDULE "E"
DESCRIPTION OF REGION AND TERRITORY
1. The Region is Uniglobe Travel (Western Canada) Inc.
2. The Territory shall consist of the following provinces in Canada: British
Columbia, Alberta, Saskatchewan, Manitoba, the Yukon Territory and the Northwest
Territories and Ontario to the Lakehead.
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SCHEDULE "F"
LIST OF FRANCHISEES OF THE REGION
EFFECTIVE AS OF THE COMMENCEMENT DATE OF THIS AGREEMENT
The Region shall update this list from time to time, but not less than four
times a year.
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SCHEDULE G
ADVERTISING REVENUE DISTRIBUTION MODEL
Revenues with respect to advertising shall be apportioned as follows:
A. For advertising secured by the Region:
(1) 100% shall be retained by the Region.
B. For advertising secured by Smartsources:
(1) 30% shall be retained by Smartsources; and
(2) 70% shall be remitted by Smartsources to the Region
within 30 days of receipt of such Revenue by
Smartsources.
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SCHEDULE "H"
THE REGION'S PREFERRED SUPPLIERS AND PARTNERSHIPS
Smartsources recognizes that this list may be modified or adjusted, as required,
by the Region from time to time.
