EXHIBIT 99.2
------------
MASTER SOFTWARE LICENSE AGREEMENT
---------------------------------
This Master Software License Agreement is made effective as of this 5th day
of April, 2000, by and between Entrade Asia Pacific Pty Ltd ACN 092 146
426, a corporation incorporated in Western Australia, with its principal
offices at Ground Floor, Durack Centre, 000 Xxxxxxxx Xxxxxxx, Xxxxx,
Xxxxxxx Xxxxxxxxx, 0000 ("Licensee") and xxxxxxx.xxx, Inc., a Delaware
corporation, with its principal offices at 000 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xx. Xxxxxx, Xxx Xxxxxx 00000 ("Licensor"). Hereinafter Licensee and
Licensor are referred to from time to time collectively as the "Parties"
and individually as a "Party."
WHEREAS, the Licensor has developed and owns all rights in and to the
Licensed Product (as hereinafter defined), and has represented that it has
expertise in the establishment and hosting of web sites which host the
Entrade Transaction Software.
WHEREAS, the Licensee has been incorporated to facilitate on-line business
to business e-commerce and related activities, and in particular to hold a
license to market and distribute the Licensed Product to third parties in
the Territories (as defined below).
WHEREAS, the Licensor possesses the copyrights and certain confidential and
proprietary know-how and technology relating to, the Licensed Product.
WHEREAS, the Licensee desires to license the Licensed Product in order to
use the Licensed Product for specific applications involving on-line
business to business activities, all on the terms and subject to the
conditions set forth herein including for the purpose of marketing and
distributing the Licensed Product to third parties in the Territories.
WHEREAS, the Licensee wishes to acquire and the Licensor has agreed to
provide certain additional services described in this Agreement in respect
of the Licensed Product on request.
NOW THEREFORE, in consideration of the covenants, agreements and
consideration hereinafter contained (the receipt, adequacy and sufficiency
of which are hereby acknowledged by the Parties by their execution hereof),
the Parties hereby covenant and agree as follows:
ARTICLE 1. INTERPRETATION
1.1 Definitions. In this Agreement, and the Schedules and Exhibits (if
any) annexed hereto, the following expressions shall have the respective
meanings indicated below:
Acceptance Procedure means the procedure for conducting acceptance
tests of Deliverables specified in Exhibit B.
Additional Services means hosting, maintenance and support,
development of web sites, creation of Custom Applications, systems
integration, training or other services requested to be performed by
Licensor relating to the Licensed Product.
Affiliate means, with respect to a Party to this Agreement, any
entity in which, directly or indirectly, a Party owns equity securities or
any entity that directly or indirectly owns equity securities in a Party in
the amount of greater than twenty-five percent of the equity.
Agreement means this Master Software License Agreement and the
Schedules and Exhibits (if any) annexed hereto.
Closing Date means the Closing Date defined in the Shareholders'
Agreement.
Code means the computer programming code associated with the Software
and the Improvements. Except as otherwise specified, Code shall include
both Object Code and Source Code.
Conditions mean the conditions precedent listed in Section 5.1 of the
Shareholders' Agreement.
Confidential Information shall have the meaning set forth in Section
4.1.
Custom Application shall mean a modification, customization,
enhancement, or alteration of the Licensed Product pursuant to a Statement
of Work.
Deliverable means software, documents or other materials identified
in a Statement of Work as "deliverable."
Delivery (or to Deliver) occurs when a Party physically or
electronically receives from the other Party (or, in the case of a
permitted Sublicensee, from the Licensee) the material that is being
delivered.
Documentation means any and all written materials, including but not
limited to user manuals, and machine-readable text subject to display and
printout that relate to and/or describe the Software or the Code.
Entrade Transaction Software means the Licensor's transaction
software (version 4.0), as described in Exhibit D, an on-line business to
business e-commerce system using the Licensor's transactional technology
and featuring general e-commerce, procurement, spot market, bidding, asset
management, redeployment and disposition applications.
Escrow Agreement means an escrow agreement for the deposit of Source
Code with an escrow agent and detailing the terms and conditions relating
to the escrow arrangement.
GAP means GlobalNet Asia Pacific Ltd ACN 090 616 685.
Improvement means any and all Updates and Upgrades, but not Custom
Applications, of the Licensed Product, the Code and any related Know-How
and technology as made generally commercially available to other customers
or partners of the Licensor.
IP Claim shall have the meaning set forth in Section 3.5.
Know-How means any and all inventions (whether patentable or not),
concepts, techniques, devices, data and other information (including, but
not limited to computer source code, flow charts, opinions, drawings,
blueprints and engineering and test specifications) associated with the
Software and/or the Code, excluding know-how specifically allocated to
Licensee in a Statement of Work.
Licensed Marks shall have the meaning set forth in Section 2.8.
Licensor Marks shall have the meaning set forth in Section 2.9.
Licensed Trademark shall have the meaning set forth in Section 2.8.
Licensed Name shall have the meaning set forth in Section 2.8.
Licensed Product means the Software, the Documentation, the
Improvements and any copies of the Software, Documentation or Improvements
and any related Know-How and technology.
License means the license of the Licensed Product pursuant to this
Agreement.
License Fee shall have the meaning set forth in Section 2.10.
Modifiable Source Code shall have the meaning set forth in Section
2.5.2.
Object Code means the computer programming code associated with the
Software and the Improvements that is intended to be directly executable by
a computer after suitable processing but without the intervening steps of
compilation or assembly.
Production Web Sites means the web sites, for Sublicensees, that
Licensor may develop pursuant to a request from Sublicensee or Licensee.
Shareholders' Agreement means the Joint Venture and Shareholders'
Agreement dated on or about the date of this Agreement among the Licensor,
the Licensee and GAP.
Software means the Object Code version of the Entrade Transaction
Software, and any Custom Applications derived therefrom.
Source Code means the computer programming code associated with the
Software and the Improvements, other than the Object Code, and related
documentation, comments and procedural code, such as job control language,
which may be printed out or displayed in human readable form.
Specifications means the specifications for the Entrade Transaction
Software in Exhibit D and such specifications for the Additional Services
and Custom Applications, and such other documentation that the Parties
agree, in writing, shall constitute Specifications.
Statement of Work shall have the meaning set forth in Section 3.2.
Sublicense Agreement shall have the meaning set forth in Section
2.7.1.
Sublicensee shall have the meaning set forth in Section 2.1.
Term shall have the meaning set forth in Section 5.1.
Territories means Australia, New Zealand, the Republic of
Philippines, Singapore, Malaysia, Indonesia, China, Hong Kong, Macao,
Taiwan, South Korea, Myanmar, Sri Lanka, Thailand, Cambodia, Laos, Vietnam
and Papua New Guinea.
Transaction Documents means this Agreement, the Shareholders'
Agreement and the constitution of the Licensee.
Update means each minor enhancement, addition, or substitution to the
Software, including bug fixes and corrections.
Upgrade means each modification, addition and substitution to the
Software that represents a substantial change, improvement or addition to
the utility, efficiency, or functional capability of the Software, that is
not solely an Update and that is made generally commercially available.
1.2 Entire Agreement; Modification; Waiver. The Transaction Documents
constitute the entire agreement between the Parties pertaining to the
subject matter hereof and supersede all prior agreements, understandings,
representations, proposals and/or other communications in respect of the
licensing of the Licensed Product, whether oral or written. No supplement,
modification or waiver of this Agreement shall be binding unless executed
in writing by each of the Parties. Subject to section 7.11, the terms of
this Agreement shall prevail over any conflicting or additional terms,
including any terms contained in purchase orders or oral communications
between the Parties, but without limiting the Parties ability to amend this
Agreement by agreement in writing specifically identified as an amendment
hereto, as provided for in this section 1.2.
1.3 Governing Law; Jurisdiction. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the law of the
State of Illinois. Each Party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within the State of
Illinois over any action or proceeding arising out of or related to this
Agreement, and waives any objection to venue or inconvenience of the forum
in any such court.
1.4 Number and Gender. Words imparting the singular include the plural
and vice versa. Words imparting gender include the male, female and the
gender neutral.
1.5 Headings; Severability. The headings used in this Agreement are for
convenience only and are not to be construed to have legal significance.
In the event that any provision of this Agreement conflicts with the law
under which this Agreement is to be construed or if any such provision is
held invalid by a court with jurisdiction over the Parties to this
Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance
with applicable law, and the remainder of this Agreement shall remain in
full force and effect.
1.6 Currency. Unless otherwise indicated, all dollar amounts referred to
in this Agreement are in United States Dollars.
ARTICLE 2. GRANT OF LICENSE
2.1 Grant of License
(a) Subject to the terms and conditions of this Agreement, the
Licensor hereby grants to the Licensee, and the Licensee hereby accepts
from the Licensor, a perpetual license during the Term to use the Licensed
Product, market and distribute the Licensed Product, and to modify the
Modifiable Source Code (defined in Section 2.5.2), for the limited purposes
of this Agreement and subject to the restrictions set forth in Section 2.5,
all within the Territories.
(b) Subject to the terms and conditions of this Agreement, the
Licensor hereby grants to the Licensee, and the Licensee hereby accepts
from the Licensor, a perpetual, exclusive license during the Term to grant
sub-licenses of the Licensed Product to third parties (each a "Sub-
Licensee") within the Territories. Notwithstanding the foregoing, the
exclusive license right granted to the Licensee in this Section is subject
to the following terms and conditions:
(i) Licensor has the right to grant licenses of the Licensed
Product to third parties for the purpose of creating business to business
internet communities (being vertical portals) within the Territories;
(ii) Licensee's exclusive right to sub-license in a "Relevant
Country" (as that term is defined in the Shareholders' Agreement) shall
terminate if Licensor exercises its rights in accordance with Section
3.5(b) of the Shareholders' Agreement to terminate the restriction set
forth in Section 3.5(a) of the Shareholders' Agreement, and thereupon the
right to sub-license in such Relevant Country shall become a non-exclusive
right to sub-license within that Relevant Country; and
(iii) Licensee's exclusive right to sub-license shall terminate
on the second anniversary of the Closing Date and such right shall become a
non-exclusive right to sub-license within the Territories.
2.2 Delivery.
2.2.1 Delivery. Licensor shall Deliver, or procure the Delivery of:
(c) deliverables identified in a Statement of Work in
accordance with that Statement of Work;
(d) one copy of the Entrade Transaction Software to be
installed on one (1) of Licensee's portable computers on or before 21 days
(45 days for a branded version) from the Closing Date or Licensor's receipt
of Licensee's compatible computer, whichever is later, for Licensee to use
solely for demonstration purposes.
2.2.2 Acceptance Procedure. The Deliverables shall be subject to
the Acceptance Procedure as described in Exhibit B. The Licensed Product
shall be deemed accepted upon acceptance of the first two Custom
Applications by the Licensee.
2.3 Improvements. The Licensor shall promptly notify the Licensee of,
and provide to the Licensee for use by the Licensee and for distribution to
sublicensees any and all available Improvements developed by or on behalf
of Licensor. The Licensee shall and shall ensure that all Sublicensees
shall be under an obligation to implement any Improvements within thirty
(30) days of Delivery of such Improvements to the Licensee or Sublicensee.
Improvements shall be made available by Licensor to the Licensee for
distribution to Sublicensees at no additional cost to the Licensee.
Notwithstanding the foregoing, the Licensee shall impose a standard charge
on Sublicensees for Improvements that constitute Upgrades.
2.4 Source Code. The Parties agree that:
(i) the Licensor will at all times keep possession of all Source
Code; and
(ii) the Licensee shall have no right, title, or interest in such
Source Code.
Notwithstanding Sections 2.4(i) and (ii), the Parties shall enter into
an Escrow Agreement within ninety (90) days of the Closing Date pursuant to
which the Licensee shall be a beneficiary. The Escrow Agreement shall be a
multi-party Escrow Agreement. Licensee shall pay the costs of the source
code escrow for the Licensee under this Agreement. Licensor shall deposit
with the escrow agent updated copies of the Source Code relating to the
Entrade Transaction Software within seven (7) days of Delivery of the
Portal Web Sites and within forty-five (45) days of Acceptance of an
Upgrade by Licensee.
2.5 Restrictions on Use.
2.5.1 Copies. The Licensee may make any reasonable number of copies
it determines appropriate of the Software, the Improvements and the
Documentation solely for
(i) the Licensee's own operational use on any number of its
central processing units;
(ii) for back up, security or archival purposes; and
(iii) for distribution to Sublicensees in accordance with this
Agreement.
Any copies of any of the materials created in accordance with this
Section 2.5.1 shall include the Licensor's copyright and other proprietary
notices. Except as set forth in Section 2.5.2, the Licensee may not
modify, decompile, reverse engineer or otherwise attempt to derive the
Source Code. The Licensee shall not modify the Licensed Product except as
set forth in Section 2.5.2.
2.5.2 Modifiable Source Code. In addition to the rights granted in
the license in Section 2.1, Licensee has the right to modify only the
following elements of the Source Code: (i) HTML; and (ii) ASP Code that
does not make any calls to ADO ("Modifiable Source Code"). All such
modifications must be approved by Licensor, in writing, prior to being put
into production, which approval shall not be unreasonably withheld.
Licensee may make copies of the Modifiable Source Code for the limited
purpose of enabling Licensee or its agent to make modifications, but
Licensee shall not otherwise copy, distribute or make such Source Code
available to any third parties without Licensor's prior written consent.
2.5.3 Modifications to certain documentation. Subject to the terms
and conditions of this Agreement, Licensee shall have the right to modify
operator and user manuals, training materials, guides, and other materials
that Licensor makes generally commercially available to its customer base
for such customers to use, market, operate, install, troubleshoot, maintain
and provide training regarding the Licensed Product. Licensee shall
Deliver to Licensor copies of all modified documentation within seven (7)
days of commercial use of same.
2.6 Assignment. Except as provided in this Section 2.6 and in Section
2.7, neither Party shall assign, sublicense or otherwise transfer
(voluntarily, by operation of law or otherwise) this Agreement or any
right, interest or benefit under this Agreement, without the prior written
consent of the other Party; provided, however, that the Licensee may
assign:
(a) this Agreement to any entity that acquires all or substantially
all (being more than 90%) of the voting shares of the Licensee at the time
of such assignment with the prior written consent of the Licensor, which
consent will not be unreasonably withheld; and/or
(b) any right or benefit of or arising under this Agreement, or
grant a sublicense of any of its rights under this Agreement (at no cost)
to:
(i) any wholly owned subsidiary corporation of the Licensee; or
(ii) any corporation or joint venture owned by the Licensor and
Gondwana Resources NL ACN 008 915 311; or
(iii) to any entity established to comply with any law in any
jurisdiction in which Licensee conducts business that requires Licensee to
conduct such business through an entity established in that jurisdiction,
but only if the relative direct and indirect ownership interests of the
shareholders of the Licensee in such entity are identical to their relative
shares in the Licensee,
(provided that such corporation, joint venture, or entity first
enters into a deed agreeing to be bound by the relevant provisions of this
Agreement).
Any attempted assignment, sublicense or transfer by a Party in
derogation hereof shall be null and void. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and
assigns. Notwithstanding the foregoing, the Licensee shall not assign this
Agreement to any entity that competes with the Licensor in the Licensor's
software development activities.
2.7 Sublicensing.
2.7.1 Except as set forth in Section 2.6 or in this Section 2.7, this
Agreement is not intended to confer, and shall not be deemed to confer, (a)
on any person or entity other than the Licensee, any license to use the
Licensed Product, or (b) subject to clause 2.1, 2.4 and 2.5.2 on Licensee
or any Sublicensee any right to have access to the Source Code. The
Licensee shall have the right to grant sublicenses of the Licensed Product
to Sublicensees for use in the Territories on terms substantially in the
form attached as Exhibit C. ("Sublicense Agreement"). With respect to
each Sublicense Agreement that the Licensee enters into, the Licensee shall
pay to the Licensor a one-time royalty of 5% of the sublicense fee received
by the Licensee, due (i) upon the earlier of receipt by the Licensee of
payment of fees by the Sublicensee or Delivery of the Licensed Products to
the Sublicensee pursuant to a Sublicense Agreement, or (ii) where
Sublicensee has the right, pursuant to a Sublicense Agreement, to perform
an acceptance test regarding the Licensed Product, upon the earlier of
receipt by the Licensee of the payment of fees by the Sublicensee or
acceptance of the Licensed Product by the Sublicensee pursuant to a
Sublicense Agreement. Licensee shall use its commercially reasonable
efforts to encourage Sublicensees to accept the Licensed Product without
requesting significant modification thereof.
2.7.2 The Licensee will immediately notify the Licensor of the
execution of any Sublicense Agreements, providing copies thereof, and of
the Delivery of any copy of the Licensed Product, identifying the entity to
whom the Licensed Product was Delivered. The Licensee will also
immediately notify the Licensor of the termination of any Sublicense
Agreements.
2.7.3 Prior to Delivery of the Licensed Product to a Sublicensee, the
Licensee shall execute a Sublicense Agreement with such Sublicensee. The
Licensee shall require the Sublicensees to enter into a Sublicense
Agreement substantially similar to the Sublicense Agreement attached hereto
as Exhibit C; however, Licensee shall have the right, in its sole
discretion, to determine the price for such Sublicense Agreement. Licensor
shall have the right to approve the Sublicensee. Such approval must occur
in writing prior to Delivery of the Licensed Products to Sublicensee and
must not be unreasonably withheld or delayed. The Licensee shall have the
sole responsibility for Delivering the Licensed Product to Sublicensees
2.8 Licensed Name and Trademark License. Licensor hereby:
(a) grants the Licensee a royalty-free, worldwide, non-exclusive,
non-transferable right and license to use, transmit, and display the name
"Entrade" in its corporate name (the "Licensed Name"); and
(b) grants the Licensee and each Sublicensee a royalty-free,
worldwide, non-exclusive, non-transferable right and license to use,
transmit, display or otherwise distribute the trademarks set forth in
Exhibit A (the "Licensed Trademarks") in connection with the Licensed
Products,
subject to Licensor's approval and quality control measures, in a
manner which shall conform to the terms and conditions of use of the
Licensed Name and the Licensed Trademarks (collectively, the "Licensed
Marks") as may be specified by Licensor from time to time and solely for
the purposes expressly provided for hereunder.
Notwithstanding the foregoing, the license granted in this Section
2.8 to Sublicensees is limited to the provision of services using the
Licensed Product. The Licensor reserves the right to change the Licensed
Marks at any time, in its sole discretion, upon sixty days' advanced
written notice to the Licensee, if such change in the Licensed Marks is in
conjunction with a general change in the use of the Licensed Marks by the
Licensor.
Subject to the provisions of this Section 2.8 and Section 2.9
hereof, any and all web sites established by the Licensee using the
Licensed Product directly or through any sub-licenses will bear the
Licensor's "Powered by Entrade" service xxxx, or such other service marks
incorporating the name "entrade" as are approved by the Licensee in writing
from time to time, on the home page and transactional pages of each such
web site.
2.9 Limitations. The Licensee's and any Sublicensee's use of the
Licensed Marks shall inure to the sole benefit of the Licensor. The nature
and quality of services of the Licensee and any Sublicensee provided in
connection with any website, goods, or services on which the Licensed Marks
are used shall be subject to the review and approval of the Licensor, in
its sole discretion. At the Licensor's
request, the Licensee shall provide examples of all forms of use of
the Licensed Marks. The Licensor may terminate the Licensee's right to use
the Licensed Marks at any time on written notice to the Licensee if the
Licensor, in its sole discretion, believes that Licensee's use of the
Licensed Marks is not in material compliance with this Agreement or that
the nature and/or quality of services provided by the Licensee would, or
would be reasonably likely to, have a material adverse effect on the
reputation or standing of the Licensor.
The termination of the Licensee's right to use the Licensed Marks
shall automatically terminate the right of all Sublicensees to use the
Licensed Marks, and the provisions of any sublicense shall so provide.
The Licensee must terminate any Sublicensee's right to use the
Licensed Marks on written notice from the Licensor to the Licensee if the
Licensor, in its sole discretion, believes that Sublicensee's use of the
Licensed Marks is not in material compliance with the use of the Licensed
Marks under this Agreement or that the nature and/or quality of services
provided by that Sublicensee would, or would be reasonably likely to, have
a material adverse effect on the reputation or standing of the Licensor.
The Licensor shall have and retain sole ownership of the trademarks,
service marks (including without limitation the Licensed Marks), trade
names, and logos owned or licensed by the Licensor (the "Licensor Marks"),
including the goodwill pertaining thereto. The Licensee acknowledges and
agrees that it has no rights in Licensor Marks, except in relation to the
use of the Licensed Marks as provided for in Section 2.8, and that it has
paid no consideration for the use of the Licensor Marks. Except for the
Licensed Marks, the Licensee shall not make use of any of the Licensor
Marks, without Licensor's written permission. The Licensee shall not
intentionally, during the term of this Agreement or at any time after the
cancellation or expiration thereof:
(i) take any action that would convey or grant an interest in any
of the Licensor Marks (except as provided for in Section 2.8);
(ii) contest or take any action to contest the validity,
distinctiveness and ownership of the Licensor Marks;
(iii) attempt to register any Licensor Marks without the prior
written consent of Licensor;
(iv) use or attempt to register any trademark, service xxxx, trade
name, or logo in any country in the world that is confusingly similar to
any Licensor Marks; or
(v) assert or claim any interest in any Licensor Marks.
Upon termination of this Agreement, or upon receiving notice of
termination of its right to use the Licensed Marks, the Licensee shall
immediately cease use of the Licensed Marks.
2.10 License Fee. Subject to Section 5.6, the Licensee shall pay a one-
time license fee of seven million dollars ($7,000,000) U.S. gross
("License Fee") to the Licensor. The initial two million dollars
($2,000,000) of the License Fee shall be due upon the Closing Date, and the
remainder of the License Fee shall be due upon acceptance of the Licensed
Product.
2.11 GST. Subject to this Section 2.11, any amount expressed in this
Agreement which is relevant in determining a payment to be made by one of
the Parties to the other Party is expressed exclusive of GST as defined in
the A New Tax System (Goods and Services Tax) Xxx 0000. If any amount
payable by either Party to the other Party under this Agreement is in or
towards payment for a taxable supply under the A New Tax System (Goods and
Services Tax) Xxx 0000 then the amount payable shall be increased to an
amount calculated by multiplying the original monetary amount payable
referable to that taxable supply by the formula, 1 plus the rate at which
GST is imposed under the applicable GST Imposition Act referred to in the
definition of GST in the (Goods and Services Tax) Xxx 0000. It is the
intention of the Parties that no Party should be financially disadvantaged
or advantaged (as between the Parties) under this Agreement as a result of
the GST. Pursuant to this intention, it is agreed that should the GST
financially disadvantage or advantage any Party in relation to supplies
where the consideration is other than for a monetary payment, the Parties
agree to renegotiate in good faith and to make any amendments as may be
necessary to ensure that the Parties are in the same financial position as
they would have been in the absence of the GST. For these purposes any
timing differences will be ignored.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
3.1 Ownership of Intellectual Property. Licensee acknowledges that
(unless otherwise stated and agreed in a Statement of Work in respect of
the Licensed Product) the Licensed Product and the Licensed Marks are the
sole and exclusive property of Licensor and the Licensed Product and the
Licensed Marks are protected under copyright, trademark and other
proprietary laws of the United States and other jurisdictions. The
Licensee acknowledges that the Licensed Product includes valuable trade
secrets and confidential information of the Licensor, and that the Licensee
acquires no right, title or interest therein, except the limited rights to
use and sublicense the Licensed Product and the Licensed Marks as set forth
in this Agreement.
3.2 Additional Services. Licensee may request, on its behalf or on
behalf of a Sublicensee, that Licensor provide Additional Services. Upon
request from the Licensee (for itself or on behalf of a Sublicensee), to
provide Additional Services, the Licensor shall promptly develop and
deliver to the Licensee a Statement of Work, which shall include a
timeline, charges, allocation of intellectual property rights, deliverables
(including Custom Applications) and other relevant information for all
applicable work associated with such Additional Services (including,
without limitation, analysis, preparation of specifications, design,
development, coding, testing, implementation and training)("Statement of
Work"). The Licensor shall have no obligation to perform Additional
Services until acceptance of such Statement of Work by the Licensee (for
itself or on behalf of a Sublicensee) in writing. In consideration of the
performance of Additional Services, the Licensee shall make payments to the
Licensor in accordance with the Statement of Work. Where Additional
Services are provided on behalf of Sublicensees, the Licensor will invoice
the Licensee for all charges with respect thereto. Any modifications or
other changes made to the Licensed Product as part of the performance of
Additional Services shall be deemed to be Licensed Product for the purposes
of this Agreement.
3.3 Licensor Representations and Warranties. The Licensor represents and
warrants to the Licensee that:
(i) the Licensor has the right to enter into this Agreement and
grant the rights granted hereunder and there are no outstanding agreements
or understandings of any kind binding upon the Licensor that are
inconsistent with this Agreement or the rights granted hereunder;
(ii) it is the owner of the Licensed Product and the Licensed Xxxx
and has the right to grant the rights hereunder;
(iii) the Licensed Product does not and will not contain any
backdoor, concealed access, software locks or any similar devices which,
upon the occurrence of a certain event, the passage of a certain amount of
time, or the taking of any action (or the failure to take action) by or on
behalf of the Licensor, will cause the Software, Improvements or a Custom
Application to be destroyed, erased, damaged or otherwise made inoperable;
(iv) neither the Licensed Product nor the Licensed Xxxx infringe
upon or violate the copyrights, patents, trade secrets, trademarks or other
proprietary rights of any third party; and
(v) for a period of twelve months from Delivery, the Entrade
Transaction Software will conform to the Specifications in all material
respects; provided, however, that, if the Entrade Transaction Software does
not so conform, the Licensor's sole obligation will be to ensure that the
Entrade Transaction Software does conform to the Specifications;
(vi) the Additional Services will be performed in a workmanlike
manner; and
(vii) any tapes, diskettes or other media which is Delivered pursuant
to this Agreement will be free of defects in materials and workmanship
under normal use; provided, however, that, if such tapes, diskettes or
other media are not so free, the Licensor's sole obligation will be to
ensure that the Licensee receives tapes, diskettes or other media, as the
case may be, which are free of defects in materials and workmanship under
normal use.
3.4 Licensee Representations and Warranties. The Licensee represents to
the Licensor that:
(i) the Licensee has the right to enter into this Agreement and
fulfill its duties and obligations hereunder;
(ii) there are no outstanding agreements of any kind binding upon
the Licensee that are inconsistent with the Transaction Documents;
(iii) the Licensee's performance under this Agreement shall conform
to all applicable laws, government rules and regulations, and the Licensee
shall not use or sublicense the Licensed Product in violation of such laws,
government rules and regulations; and
(iv) the Licensee shall not misrepresent the functionality,
performance or capabilities of the Licensed Product and shall comply with
Licensor's policies and procedures regarding use, implementation,
modification, maintenance and support of the Licensed Product which
policies have been communicated to Licensee.
3.5 Indemnification by Licensor. The Licensor agrees to defend,
indemnify and hold the Licensee and its officers, directors, agents and
employees harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including reasonable
attorneys' fees, arising out of or related to:
(a) any claim that the Licensed Product directly infringes any U.S.
patent issued as of the date of this Agreement or any copyright, trade
secret or trademark, or other proprietary rights of any third party ("IP
Claim"); provided that:
(i) the Licensee notifies the Licensor promptly in writing of
any such claim,
(ii) the Licensor has the sole control of the defense and all
related settlement negotiations, and
(iii) the Licensee provides the Licensor with all reasonably
necessary assistance, information and authority to perform the foregoing at
the Licensor's expense;
and
(b) any material breach or alleged material breach of any of the
Licensor's representations and warranties or covenants hereunder,
provided, however, that this Section 3.5 shall not apply to the
extent that the alleged infringement arises out of or relates to the
Licensee's or Sublicensee's unauthorized combination, operation or use of
Licensed Product with software that does not originate from the Licensor,
modifications to the Software or Custom Application not developed by or on
behalf of the Licensor and not authorized by the Licensor, or if the
alleged infringement arises out of the use of technology, business methods,
trade secrets, know-how, or copyrighted material provided by Licensee to
Licensor and used or incorporated by Licensor in a Custom Application in
accordance with Licensee's instructions (a "Non-Indemnified IP Claim"),
even if the Licensor has been made aware of such combination, operation or
use or of such modifications. For the avoidance of doubt, an IP Claim does
not include a Non-Indemnified IP Claim.
3.6 Indemnification by Licensee. The Licensee agrees to defend,
indemnify and hold the Licensor and its officers, directors, agents and
employees harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including reasonable
attorneys' fees, arising out of or related to:
(a) any material breach or alleged material breach of any of the
Licensee's representations and warranties or covenants (which includes non-
payment) hereunder;
(b) Non-Indemnified IP Claims;
provided that
(i) Licensor notifies Licensee promptly in writing of any such
claim,
(ii) Licensee has the sole control of the defense and all related
settlement negotiations, and
(iii) Licensor provides Licensee with all reasonably necessary
assistance, information and authority to perform the foregoing at
Licensee's expense.
3.7 Infringement. In the event that the Licensed Product is held or is
likely to be held to constitute an infringement of any copyright, patent,
trade secret or trademark, or other proprietary rights of any third party,
the Licensor, at its sole expense, shall use reasonable and prompt efforts
to:
(i) procure for the Licensee and each Sublicensee the right to
continue to use the Licensed Product;
(ii) modify the Licensed Product so that it is non-infringing and of
at least equivalent performance and functionality; or
(iii) provide functionally equivalent replacement products.
Licensor may exercise its sole discretion in selecting among the
foregoing options (i), (ii) or (iii).
ARTICLE 4. CONFIDENTIALITY
4.1 It is understood that, during the course of the Parties' performance
under this Agreement, each Party might obtain access to the other Party's
information that is confidential, including, in the case of the Licensor,
but not limited to, the Licensed Product, the Object Code, the
Documentation, the Improvements, the Know-How, and all material information
concerning each Party's business operations, including, but not limited to,
product plans, designs, costs, prices and names, finances, marketing plans,
business opportunities, personnel, research, development or Know-How (the
"Confidential Information").
4.2 Each Party agrees to use Confidential Information of the other Party
solely in conjunction with its performance under this Agreement, and not to
disclose or otherwise use such information in any fashion. Each Party,
however, will not be required to keep confidential such Confidential
Information that
(i) becomes generally available without fault on its part;
(ii) can be demonstrated to be rightfully in that Party's possession
without restriction prior to its receipt from the other Party;
(iii) is disclosed by third parties without similar restrictions;
(iv) is rightfully obtained by that Party from third parties without
restriction; or
(v) is otherwise required to be disclosed by law, judicial process
or the rules of any stock exchange on which a Party or any of its
Affiliates is listed (however upon receipt of a demand for production of
Confidential Information governed by this Section 4.2, the Party which
receives the demand shall use reasonable efforts to notify the other Party
of such demand in sufficient time to allow the other Party to move to
prevent such disclosure).
4.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own employees,
and its legal, investment, financial and other professional advisers on a
confidential basis, each Party agrees not to disclose the terms of this
Agreement or matters related thereto without the prior written consent of
the other Party. Each Party shall inform any employees or professional
advisors to whom that Party provides Confidential Information of the
requirements of Article 4 of this Agreement and shall procure that those
employees or professional advisors abide by Article 4 of this Agreement.
Each Party shall prevent disclosure and misuse of Confidential Information
by taking at least the same precautions with respect to the Confidential
Information as it takes with respect to its own Confidential Information,
which steps shall be no less stringent than reasonable steps.
4.4 This Article 4 shall survive for a period of three (3) years beyond
any expiration or termination of this Agreement.
ARTICLE 5. TERM AND TERMINATION
5.1 Term. Subject to satisfaction of the Conditions and payment of the
License Fee, the term of the License shall begin on the Closing Date and
shall continue until terminated as hereinafter provided ("Term").
5.2 Termination for Cause. Each Party will have the right to immediately
terminate this Agreement if the other Party is in default of any material
obligation herein, and such breach is incapable of being cured, or if such
breach is capable of cure, such breach is not cured within thirty (30) days
after receipt of written notice of such default from the non-defaulting
Party or within such additional cure period as the non-defaulting Party may
authorize.
5.3 Termination of Shareholders' Agreement. In the event the
Shareholders' Agreement terminates pursuant to Section 11.2(a) (other than
for the purposes of amalgamation or reconstruction) or 11.2(b) of the
Shareholders' Agreement , this Agreement shall terminate automatically on
the date the Shareholders' Agreement terminates.
5.4 Termination for Insolvency. Each Party shall have the right to
immediately terminate this Agreement upon written notice in the event that
the other Party:
(a) voluntarily or involuntarily becomes the subject of a petition
in bankruptcy or of any proceeding relating to insolvency, receivership,
liquidation, composition or assignment for the benefit of creditors and
that petition or proceeding is not withdrawn or discharged within thirty
(30) days thereafter;
(b) admits in writing its inability to pay its debts as they become
due; or
(c) ceases to conduct business in the normal course and has not re-
commenced business in the normal course within thirty (30) days
thereafter.
5.5 Consequences of Termination/Expiration. Upon the termination or
expiration of this Agreement,
(i) the Licensee shall promptly return all Confidential Information
of the Licensor, and other information, documents, manuals and other
materials stored in any form or media (including but not limited to
electronic copies) belonging to or received from the Licensor, except as
may be otherwise provided in this Agreement,
(ii) the Licensor shall promptly return all Confidential Information
of the Licensee, and other information, documents, manuals and other
materials stored in any form or media (including but not limited to
electronic copies) belonging to or received from the Licensee, except as
may be otherwise provided in this Agreement,
(iii) the Licensee shall return to the Licensor or delete all copies
in its power, possession, custody or control of the Licensed Product,
Improvements and Custom Applications, and
(iv) each Sublicensee shall be deemed to be directly licensed by the
Licensor as from the effective date of such termination or expiration, and
any Sublicense Agreement between the Licensee and any of its Sublicensees
shall contain a provision so providing.
5.6 Conditions Precedent. If the Conditions are not satisfied or waived
in accordance with the terms of the Shareholders' Agreement, or the portion
of the License Fee payable on the Closing Date is not paid on or before 5pm
(Perth time) on the Closing Date, this Agreement automatically terminates
with effect from the Closing Date, and, except for Article 4, is of no
further effect. For the avoidance of doubt, if the Agreement is terminated
pursuant to this Section 5.6, neither Party shall have any liability to the
other Party, except in accordance with Article 4.
ARTICLE 6. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
6.1 DISCLAIMER OF WARRANTIES. OTHER THAN AS SET FORTH IN ARTICLE 3,
LICENSOR AND LICENSEE MAKE NO, AND EACH PARTY ACKNOWLEDGES THAT EACH PARTY
HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR
THAT THE LICENSED PRODUCT WILL BE ERROR-FREE. THE LICENSED PRODUCT IS
PROVIDED "AS IS."
6.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF THE PARTIES SHALL HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY
REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF
WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY OR ANY OTHER THEORY OF LIABILITY.
6.3 LIMITATION ON DAMAGES. OTHER THAN IN RELATION TO IP CLAIMS, IN NO
EVENT SHALL THE MAXIMUM AMOUNT OF DAMAGES PAYABLE BY LICENSOR OR LICENSEE
FOR ANY BREACH OF THIS AGREEMENT OR ANY DAMAGE OR INJURY RESULTING FROM THE
LICENSED PRODUCT EXCEED, IN THE AGGREGATE $7,000,000; PROVIDED, HOWEVER,
THAT ANY SUMS THAT THE LICENSEE IS REQUIRED TO PAY TO THE LICENSOR PURSUANT
TO ARTICLE 2 SHALL NOT BE INCLUDED WITHIN SUCH LIMIT. THE LIMITATION IN
THIS SECTION 6.3 IS AN AGGREGATE LIMITATION WHICH IS TO BE APPLIED TO ALL
DAMAGES, CLAIMS AND INDEMNITIES (OTHER THAN IN RELATION TO IP CLAIMS)
ARISING OUT OF THIS AGREEMENT, THE WEB SITE DEVELOPMENT AND HOSTING
AGREEMENT EFFECTIVE ON THE CLOSING DATE, AND THE MAINTENANCE AND SUPPORT
AGREEMENT EFFECTIVE ON THE CLOSING DATE, AMOUNTS RELATING TO ALL SUCH
DAMAGES, CLAIMS AND INDEMNITIES SHALL BE AGGREGATED IN DETERMINING WHETHER
THE $7,000,000 LIMIT IS REACHED.
ARTICLE 7. OTHER PROVISIONS
7.1 Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the Parties and their respective permitted successors and
assigns.
7.2 Survival. All representations, warranties, indemnifications, and
obligations that expressly or by their nature survive termination of this
Agreement shall survive any termination of this Agreement and shall
continue in full force and effect subsequent to and notwithstanding such
termination.
7.3 Notices.
7.3.1 Requirements for notice.
A notice, consent or other communication under this document is
only effective if it is:
(a) in writing, signed by or on behalf of the Party giving
it;
(b) addressed to the Party to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by airmail, if
the addressee is overseas) to that Party's address; or
(ii) sent by fax to that Party's fax number and the
machine from which it is sent produces a report that states that it was
sent in full.
7.3.2 When a notice is effective.
A notice, consent or other communication that complies with
this section is regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5.00 pm (local time in the place of receipt) on
a Business Day - on that day; or
(ii) after 5.00 pm (local time in the place of receipt)
on a Business Day, or on a day that is not a Business Day - on the next
Business Day; and
(b) if it is sent by mail:
(i) within the same country from which it is sent - 3
Business Days after posting; or
(ii) to a place outside the country from which it is
sent - 7 Business Days after posting.
7.3.3 A Party's address and fax number are those set out below, or as
the Party notifies the sender:
If to the Licensee:
Address: Ground Floor, Durack Centre
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxxxx, 0000
Fax number: (000) 0000 0000
Attention: Chairman
with a copy to:
GlobalNet Asia Pacific Ltd
Address: Ground Floor, Durack Centre
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxxxx, 0000
Fax number: (000) 0000 0000
Attention: Chairman
If to the Licensor:
xxxxxxx.xxx, Inc.
Address: 000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xx. Xxxxxx, Xxx Xxxxxx 00000
Fax number: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to:
Entrade Inc.
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax number: (000) 000-0000
Attention: General Counsel
7.4 Counterparts. This Agreement may be executed in counterparts and
shall become binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the Parties.
7.5 Independent Contractors. The Parties to this Agreement are
independent contractors and shall not be considered or deemed to be agents,
employees, joint venturers or partners of the other except as otherwise
expressly agreed to in a writing signed by the Parties. Neither Party
shall have authority to contract for or bind the other in any manner and
shall not represent itself as an agent of the other or as otherwise
authorized to act for or on behalf of the other.
7.6 Export Controls. The Licensee agrees to comply fully with all
relevant export laws and regulations of the United States, including, but
not limited to, the U.S. Export Administration Regulations (collectively
"U.S. Export Controls") with regard to the Licensed Product. Without
limiting the generality of the foregoing, the Licensee expressly agrees
that it shall not, and shall cause its representatives to agree not to,
export, directly or indirectly, re-export, divert, or transfer the Licensed
Product or any direct product thereof to any destination, company or person
restricted or prohibited by U.S. Export Controls.
7.7 Force Majeure. Neither Party will be liable for delay or default in
the performance of its obligations under this Agreement if such delay or
default is caused by conditions beyond its reasonable control, including,
but not limited to, fire, flood, accident, earthquakes, telecommunications
line failures, storm, acts of war, riot, government interference, strikes
and/or walk-outs. In the event of a force majeure event which lasts longer
than thirty (30) days, the Party not experiencing the force majeure event
may terminate this Agreement upon prior written notice to the other Party.
In the event that any force majeure event permanently precludes the
Licensor from performing its obligations under this Agreement within the
first three years after execution hereof, the Licensor shall repay to the
Licensee a sum equal to the License Fee multiplied by a fraction, the
numerator of which is 36 minus the number of complete calendar months
(determined on the basis of the monthly anniversary of the Closing Date)
that have elapsed since the Closing Date and the denominator of which is
36.
7.8 Expenses. Each Party must pay its own expenses incurred in
negotiating, executing and registering this document, except that the
Licensee must pay the Licensor on demand the amount of any duty that is
payable on or in relation to this Agreement.
7.9 Severability. If any provision of this Agreement is found invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
deemed to be severed herefrom, without affecting the remaining portions of
this Agreement, which shall remain in full force and effect; provided,
however, that the severing of any such provision will not materially change
the substance of this Agreement.
7.10 No Third Party Beneficiary. This Agreement does not contemplate, and
the Licensor and Licensee do not intend, the creation of any third party
beneficiary rights in and to this Agreement, and no third parties shall
have any rights hereunder.
7.11 Order of Precedence of Documents. If there shall be any
inconsistencies between this Master Software License Agreement, on the one
hand, and any of the following agreements between the Parties: the Web
Site Hosting Agreement, the Maintenance and Support Services Agreement, and
any Statement of Work (collectively, "the Supporting Documents"), then the
Master Software License Agreement shall prevail to the extent of such
inconsistency, unless specifically agreed otherwise in writing by the
Parties. The interpretation of the Supporting Documents and the End User
Software Sublicense Agreement (Exhibit C), shall be by reference to and in
accordance with the context and intent of the Master Software License
Agreement.
IN WITNESS whereof the Parties have duly executed this Agreement as
of the date first written above.
Entrade Asia Pacific Pty Ltd, xxxxxxx.xxx, Inc.
ACN 092 146 426
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
--------------------------- -------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxxxxxx
--------------------------- -------------------------
Title: Director Title: Executive Vice President
--------------------------- -------------------------
EXHIBIT A
Licensed Marks
--------------
< display of licensed marks for: xxxxxxx.xxx; Entrade, Inc.; powered by
xxxxxxx.xxx; powered by Entrade Inc. >
EXHIBIT B
ACCEPTANCE PROCEDURE
--------------------
1.1 Acceptance Criteria
Each Deliverable (as defined in the Master Software License Agreement
dated April 3, 2000) shall be subject to acceptance testing by Licensee to
verify that the Deliverable satisfies the acceptance criteria mutually
agreed to by Licensor and Licensee for said Deliverable as set forth in the
Statement of Work. The acceptance criteria for each Deliverable, which
shall be included in the Statement of Work, shall be jointly developed and
mutually agreed to in writing by Licensor and Licensee before work
commences therefore, when possible, but in no event later than thirty (30)
days in advance of the date identified for completion of the Deliverable.
Verification of acceptability of: (i) a software Deliverable shall be based
on material conformance to the specifications and (ii) requirements
definition or functional or technical specification Deliverables, services,
and other non-hardware and non-software Deliverables shall be based on
either those stated in the Master Software License Agreement or, if none,
on material conformance to the specifications. If the Statement of Work
fails to set forth acceptance criteria for a Deliverable, acceptability of
such Deliverable shall be based solely on material conformance of the
Deliverable with the Statement of Work.
1.2 Acceptance Testing
(a) Acceptance testing for any Deliverable shall commence within
three (3) working days of the date on which Licensor Delivers to Licensee,
the Deliverable that has been satisfactorily completed, in Licensor's
opinion, and is ready for acceptance testing by Licensee. Acceptance
testing shall continue for the period of time specified in the acceptance
criteria or, if no such time period has been agreed upon by the parties,
for a period of fifteen (15) consecutive days (the "Acceptance Period").
Licensee shall provide all personnel and expenses for acceptance testing.
(b) In the event that any Deliverable does not materially conform
to the acceptance criteria within the Acceptance Period described above,
Licensee shall by the end of the Acceptance Period promptly give Licensor
written notice thereof. Licensee shall provide Licensor written notice, in
reasonable detail, of all alleged material non-conformance with acceptance
criteria and shall cooperate with Licensor in identifying in what respects
the Deliverable has failed to conform to the criteria. Licensor shall, at
no cost to Licensee, promptly commence efforts to correct the material
deficiencies identified, and Licensor shall use its best efforts to correct
such material deficiencies within fifteen (15) calendar days of the end of
the Acceptance Period. Licensor shall amend the Documentation and/or
Specifications to reflect such correction and provide such amended
Documentation and/or Specifications to the Licensee.
(c) Upon completion of the corrective action by Licensor, Licensor
and Licensee will repeat the acceptance test procedure cycle in accordance
with the procedures and time frames set forth in Sections 1.2 (a) and (b)
above until the Deliverable has successfully conformed to the acceptance
criteria.
(d) Nonconformities of the Deliverable resulting from out-of-scope
items or consisting of items that cannot be reproduced shall not be reasons
for rejecting the Deliverable. Where the parties cannot agree whether a
nonconformance qualifies as one or more of the foregoing exceptions, the
classification of such questionable items will be made by referring to the
written project documentation of functionality, including the Statement of
Work and test plans.
(e) If the Deliverable does not conform to the acceptance criteria
within the greater of
(i) sixty (60) days from the end of the first Acceptance
Period described in 1.2 (a) above or
(ii) fifty percent (50%) of the total period of time estimated
for completing the project set forth in the Statement of Work after the end
of the first Acceptance Period described in 1.2 (a) above;
Licensee may: (i) immediately terminate the Statement of Work
without any further obligation or liability of any kind and Licensor shall
immediately reimburse Licensee any amounts paid thereunder and return any
Deliverables and other materials provided thereunder; or (ii) require
Licensor to continue to attempt to correct the nonconformity, using
commercially reasonable efforts, reserving the right to terminate as
aforesaid at any time.
(f) When the Deliverable has successfully satisfied the acceptance
criteria Licensee shall give Licensor written notice thereof. Final
acceptance of the Deliverable shall be deemed to have occurred on the
earlier to occur of the following: (i) the date on which Licensee notifies
Licensor of its acceptance; or (ii) the end of an Acceptance Period if
Licensee has not provided Licensor with written notice of any
nonconformance. Notwithstanding the foregoing, Licensee's or Sublicensee's
distribution of the Deliverable or use of the Deliverable in a production
mode, wherein Licensee employs the Deliverable to conduct official and
routine business, shall immediately constitute final acceptance of the
Deliverable.
1.3 Modification of Procedure
The parties may jointly agree in writing in a Statement of Work to
modify the procedure set forth herein based on the circumstances and needs
of particular projects.
EXHIBIT C
SUBLICENSE AGREEMENT
--------------------
This Software Sublicense Agreement is made effective as of this __________
day of __________, 2000 (the "Effective Date"), by and between __________
having a principal place of business at __________ (hereinafter the
"Sublicense") and Entrade Asia Pacific Pty Ltd, ACN 092 146 426, a
corporation incorporated in Western Australia, with its principal offices
at Ground Floor, Durack Centre, 000 Xxxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx
Xxxxxxxxx, 0000 ("Sublicensor") . Hereinafter the Sublicensee and the
Sublicensor are referred to from time to time collectively as the "Parties"
and individually as a "Party."
WHEREAS, the Sublicensor has a license to the Licensed Product (as
hereinafter defined) under that certain Master Software License Agreement
dated between the Sublicensor and the Licensor, xxxxxxx.xxx, Inc., a
Delaware corporation, with its principal offices at 000 Xxxxxxxxxx Xxxx,
Xxxxx 000, Xx. Xxxxxx, Xxx Xxxxxx 00000 ("Licensor"), including the right
to sublicense, and
WHEREAS, the Sublicensor has the right to license the copyright and certain
confidential and proprietary know-how relating to the Licensed Product, and
WHEREAS, the Sublicensee desires to use the Licensed Product in on-line and
electronic business operations in the Markets within the Territories,
NOW THEREFORE, in consideration of the covenants, agreements and
consideration hereinafter contained (the receipt, adequacy and sufficiency
of which are hereby acknowledged by the Parties by their execution hereof),
the Parties hereby covenant and agree as follows:
ARTICLE 1. INTERPRETATION
1.1 Definitions. In this Agreement, and the Schedules and Exhibits (if
any) annexed hereto, the following expressions shall have the respective
meanings indicated below:
Agreement means this Software Sublicense Agreement and the Schedules
and Exhibits (if any) annexed hereto.
Additional Services means hosting, maintenance and support,
development of web sites, creation of Custom Applications, systems
integration, training or other services requested to be performed by
Sublicensor or Licensor relating to the Licensed Product.
Code means the computer programming code associated with the Software
and the Improvements. Except as otherwise specified, Code shall include
both Object Code and Source Code.
Confidential Information shall have the meaning set forth in Section
5.1.
Custom Application shall mean a customization, enhancement,
alteration, or modification to the Licensed Product provided upon request
of the Sublicensee.
Delivery (or to Deliver) occurs when a Party physically or
electronically receives from the other Party the material that is being
delivered.
Deliverable means Software (in the Object Code form), documents or
other materials identified in a Statement of Work as "deliverable."
Documentation means any and all written materials, including but not
limited to user manuals, and machine-readable text subject to display and
printout that relate to and/or describe the Software or the Code.
Entrade Transaction Software means the Licensor's transaction
software (version 4.0), as described in the Specifications attached hereto
as Exhibit C, an on-line business to business e-commerce system using the
Licensor's transactional technology and featuring general e-commerce,
procurement, spot market, bidding, asset management, redeployment and
disposition applications.
Improvement means any and all Updates and Upgrades, but not Custom
Applications, of the Licensed Product, the Code and any related Know-How
and technology, as made generally commercially available by Licensor.
IP Claim shall have the meaning set forth in Section 4.4.
Know-How means any and all inventions (whether patentable or not),
improvements, techniques, devices, data and other information (including,
but not limited to computer source code, flow charts, opinions, drawings,
blueprints and engineering and test specifications) associated with the
Software and/or the Code.
Licensed Marks shall have the meaning set forth in Section 2.6.
Licensed Product means the Software, the Documentation, the
Improvements and any copies of the Software, Documentation or Improvements
and any related Know-How and technology.
Markets means __________ [insert the markets] in the Territories.
Master Software License Agreement means that certain Master Software
License Agreement, dated April 3, 2000 between the Sublicensor and the
Licensor.
Object Code means the computer programming code associated with the
Software and the Improvements that is intended to be directly executable by
a computer after suitable processing but without the intervening steps of
compilation or assembly.
Software means the Object Code version of the Entrade Transaction
Software, and any Custom Applications derived therefrom.
Source Code means the computer programming code associated with the
Software and the Improvements, other than the Object Code, and related
documentation, comments and procedural code, such as job control language,
which may be printed out or displayed in human readable form.
Specifications means the specifications for the Additional Services
and Custom Applications (if any), and such other documentation that the
Parties agree, in writing, shall constitute Specifications.
Statement of Work shall have the meaning set forth in Section 2.2.
Sublicense means the license of the Licensed Product to the
Sublicensee pursuant to this Agreement.
Term shall have the meaning set forth in Section 6.1 of this
Agreement.
Territories means ________________ [insert territories covered].
Update means each minor enhancement, addition, or substitution to the
Software, including bug fixes and corrections.
Upgrade means each modification, addition and substitution of the
Software that represents a substantial change, improvement or addition to
the utility, efficiency, or functional capability of the Software, that is
not solely an Update and that is made generally commercially available by
the Licensor.
1.2 Entire Agreement; Modification; Waiver. This Agreement, including
any exhibits attached hereto, constitute the entire agreement between the
Parties pertaining to the subject matter hereof and supersede all prior
agreements, understandings, representations, proposals and/or other
communications in respect of the licensing of the Licensed Product, whether
oral or written. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by each of the Parties. The
terms of this Agreement shall prevail over any conflicting or additional
terms, including any terms contained in purchase orders or oral
communications between the Parties, but without limiting the Parties'
ability to amend this Agreement by agreement in writing specifically
identified as an amendment hereto, as provided for in this section 1.2.
Notwithstanding the foregoing in the event of an inconsistency between the
Master Software License Agreement and this Agreement, the terms of the
Master Software License Agreement shall prevail to the extent of any
inconsistency.
1.3 Governing Law; Jurisdiction, Limitation Period. This Agreement shall
be interpreted, construed and enforced in all respects in accordance with
the Laws of Illinois. Each Party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within Chicago, Illinois,
USA, over any action or proceeding arising out of or related to this
Agreement, and waives any objection to venue or inconvenience of the forum
in any such court. All claims by Sublicensee in any way arising out of or
in connection with this Agreement shall be brought within one (1) year of
the date of the occurrence giving rise to such claim.
1.4 Number and Gender. Words imparting the singular include the plural
and vice versa. Words imparting gender include the male, female and the
gender neutral.
1.5 Headings; Severability. The headings used in this Agreement are for
convenience only and are not to be construed to have legal significance.
In the event that any provision of this Agreement conflicts with the law
under which this Agreement is to be construed or if any such provision is
held invalid by a court with jurisdiction over the Parties to this
Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance
with applicable law, and the remainder of this Agreement shall remain in
full force and effect.
1.6 Currency. Unless otherwise indicated, all dollar amounts referred to
in this Agreement are in United States Dollars.
ARTICLE 2. GRANT OF LICENSE
2.1 Grant of Sublicense. Subject to the terms and conditions of this
Agreement, the Sublicensor hereby grants to the Sublicensee, and the
Sublicensee hereby accepts from the Sublicensor, a non-exclusive royalty-
bearing Sublicense during the Term to use the Licensed Product for
__________ [description of use] in ____________ [the Markets] within the
_____________ [Territories].
2.2 Additional Services. Sublicensee may request that Sublicensor
provide Additional Services. Upon request from the Sublicensee to provide
Additional Services, the Sublicensor shall promptly develop and deliver to
the Sublicensee a Statement of Work, which shall include a timeline,
charges, allocation of intellectual property rights, deliverables
(including Custom Applications) and other relevant information for all
applicable work associated with such Additional Services (including,
without limitation, analysis, preparation of specifications, design,
development, coding, testing, implementation and training) ("Statement of
Work"). The Sublicensor shall have no obligation to perform Additional
Services until acceptance of such Statement of Work by the Sublicensee in
writing. In consideration of the performance of Additional Services, the
Sublicensee shall make payments to the Sublicensor in accordance with the
Statement of Work. Any modifications or other changes made to the Licensed
Product as part of the performance of Additional Services shall be deemed
to be Licensed Product for the purposes of this Agreement.
2.3 Updates and Technical Support. The license to the Licensed Product
granted pursuant to Section 2.1 above includes access to any and all
Updates (at no additional cost) that are available. Upgrades shall be made
available at prices to be determined by agreement of the Parties. Upon
Delivery or payment for such Update(s) or Upgrade(s), if any, such
Update(s) or Upgrade(s) shall be deemed "Licensed Product". The
Sublicensor shall promptly notify the Sublicensee of any and all available
Updates and Upgrades developed by or on behalf of the Licensor and made
available to the Sublicensor. An Update or Upgrade shall be deemed
available when the Licensed Product incorporating such Update or Upgrade is
in general commercial use and distribution by Licensor, and not merely in
beta testing. Sublicensee shall implement all Upgrades, Deliverables
delivered pursuant to a Statement of Work and Updates within thirty (30)
days of Delivery. The Parties acknowledge that the Licensor will at all
times retain ownership in and possession of all Source Code for the
Licensed Product, and that the Sublicensee shall have no right, title, or
interest in the Source Code.
2.4 Restriction on Use. In addition to the rights granted in the license
in Section 2.1, the Sublicensee may make one (1) copy of the Licensed
Product for back up, security or archive purposes for each central
processing unit on which the Licensed Product is used. The Sublicensee may
make as many copies of the Licensor's manuals or similar materials related
to the Licensed Product as is reasonably necessary. Any copies of any of
the materials referred to in this Section 2.4 shall include the Licensor's
copyright and other proprietary notices. The Sublicensee may not modify,
decompile, reverse engineer or otherwise attempt to derive the Source Code.
The Sublicensee shall not modify the Licensed Software.
2.5 Assignment/Sublicense of Sublicense. The Sublicensee shall not have
the right to assign, transfer or convey, directly or indirectly, by
sublicense or otherwise, this Agreement or any of its rights and/or
obligations hereunder without the prior written consent of the Sublicensor
and the Licensor, which consent shall be solely within their discretion.
Any attempted assignment, sublicense, or transfer by the Sublicensee in
derogation hereof shall be null and void. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and
assigns. Notwithstanding the foregoing, the Sublicensee shall not assign
this Agreement to any entity that competes with the Licensor or the
Sublicensor in the Licensor's or the Sublicensor's software development
activities.
2.6 Trademark. The Sublicensee acknowledges that the Licensor is the
owner of any and all trademarks associated with the Licensed Product. The
Licensor has granted to Sublicensor, pursuant to the Master Software
License Agreement, limited rights to use the Licensed Trademarks set forth
in Exhibit B (the "Licensed Marks"). The Sublicensor grants to Sublicensee
a royalty-free, non-exclusive, non-transferable right and license to use
the Licensed Trademark on the website on which the Licensed Product is
used. Sublicensee shall place the Licensed Marks on its website in
accordance with Exhibit B. All use of the Licensed Marks shall inure to
the sole benefit of the
Licensor. The nature and quality of products and services of the
Sublicensee provided in connection with any website, product or service on
which or with which the Licensed Marks are used shall be subject to the
review and approval of the Licensor, in its sole discretion. The
Sublicensor or the Licensor, may terminate the Sublicensee's right to use
the Licensed Marks at any time on notice to the Sublicensee if the Licensor
believes, in its sole discretion, that the Sublicensee's use of the
Licensed Marks are not in compliance with this Agreement, the terms and
conditions of use, and/or that the nature and/or quality of services of the
Sublicensee with which the Licensed Marks are being used do not meet with
the approval of the Sublicensor or the Licensor. The Licensor shall have
and retain sole ownership of the Licensed Marks including the goodwill
pertaining thereto. The Sublicensee acknowledges and agrees that it has no
rights in the trademarks, service marks, logos and trade names of the
Licensor, other than the limited right to use the Licensed Marks in
accordance with this Agreement. The Sublicensee shall not, during the term
of this Agreement or at any time after the cancellation or expiration
thereof (i) knowingly take any action that would convey or grant an
interest in any Licensed Xxxx, (ii) contest or knowingly take any action to
contest the validity, distinctiveness, and ownership of the Licensed Xxxx,
(iii) attempt to register any Licensed Xxxx without the prior written
consent of the Licensor, (iv) use or attempt to register any trademark,
service xxxx, trade name, or logo in any country in the world that is
confusingly similar to any Licensed Xxxx, or (v) assert or claim any
interest in any Licensed Xxxx. Upon termination of this Agreement, or upon
receiving notice of termination of its right to use the Licensed Marks, the
Sublicensee shall immediately cease use of the Licensed Xxxx.
ARTICLE 3. FEES
3.1 License Fee and Other Fees. The Sublicensee agrees to pay to the
Sublicensor a sublicense fee of plus % on all
transactions consummated through the direct or indirect use of the Licensed
Product, in accordance with Exhibit A.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Ownership. The Sublicensee acknowledges that the Licensed Product
being provided by the Sublicensor hereunder, and any Updates, Upgrades, and
Custom Applications made by or on behalf of the Sublicensor or
Documentation provided by the Sublicensor with respect thereto, are the
sole and exclusive property of the Licensor and that the Sublicensee
acquires no right, title or interest therein, except the limited rights to
use the Licensed Product as set forth in this Agreement.
4.2 Sublicensor Representations and Warranties. The Sublicensor
represents and warrants to the Sublicensee that: (i) the Sublicensor has
the right to enter into this Agreement and grant the rights granted
hereunder and there are no outstanding agreements or understandings of any
kind binding upon the Sublicensor that are inconsistent with this Agreement
or the rights granted hereunder; (ii) the Licensed Product does not and
will not contain any "backdoor" or concealed access or any "software locks"
or any similar
devices which, upon the occurrence of a certain event, the passage of
a certain amount of time, or the taking of any action (or the failure to
take action) by or on behalf of the Sublicensor or the Sublicensee, will
cause the Licensed Product to be destroyed, erased, damaged or otherwise
made inoperable; (iii) the Licensed Software does not and will not contain
any viruses at the time of Delivery; (iv) to the Sublicensor's knowledge,
the Licensed Product does not and will not infringe upon or violate the
copyrights, patents, trade secrets, trademarks, or other intellectual
property rights of any third party.
4.3 Sublicensee Representations and Warranties. The Sublicensee
represents to the Sublicensor that (i) the Sublicensee has the right to
enter into this Agreement and fulfill its duties and obligations hereunder
and there are no outstanding agreements of any kind binding upon the
Sublicensee that are inconsistent with this Agreement; (ii) the
Sublicensee's performance under this Agreement shall not violate any
applicable U.S. or foreign laws, government rules and regulations, and the
Sublicensee shall not knowingly use or sublicense the Licensed Product in
violation of such laws, government rules and regulations; and (iii) there
are no outstanding agreements of any kind binding upon Sublicensee that are
inconsistent with this Agreement.
4.4 Indemnification by the Sublicensor. The Sublicensor hereby agrees to
indemnify, defend and hold harmless the Sublicensee and its permitted
assigns, and their respective directors, officers, employees and agents, at
the Sublicensor's sole cost and expense, from and against any and all
losses, expenses, claims, actions, proceedings, damages or liabilities
based upon any claim that the Licensed Product directly infringes any U.S.
patent issued as of the Effective Date or any copyright, trade secret, or
trademark ("IP Claim"). The Sublicensor agrees to pay any and all
obligations, liabilities, costs and damages of the Sublicensee and its
permitted assigns, including, without limitation, reasonable attorney's
fees, which are attributable to any such claim, action or proceeding if the
Sublicensee or its permitted assigns, promptly notifies the Sublicensor in
writing of any such claim, action or proceeding and gives the Sublicensor
sole control of the defense and all related settlement negotiation of such
claim, action or proceeding and provides the Sublicensor with reasonably
necessary assistance, information and authority in the defense of any such
claim, action or proceeding. The Sublicensor may, at the Sublicensor's
option and sole expense, either secure for the Sublicensee or its permitted
assigns, as the case may be, the right to continue to use the Licensed
Product and any component part thereof, or replace or modify same to make
them non-infringing, but functionally equivalent to the Licensed Product,
or terminate the Agreement and return all fees paid by Sublicensee
hereunder. This Section shall not apply if the alleged infringement is
due to combination, operation or use of Licensed Product with other
software that does not originate from the Sublicensor or if the alleged
infringement arises out of the use of technology, business methods, trade
secrets, know-how, or copyrighted material provided by the Sublicensee to
the Sublicensor or Licensor and used or incorporated by the Sublicensor or
Licensor in a Custom Application in accordance with the Sublicensee's
instructions ("Non-Indemnified IP Claims"), even if the Sublicensor or
Licensor has been made aware of the occurrence of the foregoing. For the
avoidance of doubt, an IP Claim does not include a Non-Indemnified IP
Claim.
4.5 Indemnification by the Sublicensee. The Sublicensee hereby agrees to
indemnify, defend and hold harmless the Sublicensor and its permitted
assigns, and their respective directors, officers, employees and agents, at
the Sublicensee's sole cost and expense, from and against any and all
losses, expenses, claims, actions, proceedings, damages or liabilities,
arising out of or relating to (i) any action or inaction of the
Sublicensee, its permitted assigns, and their respective directors,
officers, employees, and agents, with respect to the Licensed Product or
its use; (ii) Non-Indemnified IP Claims; (iii) claims, excluding IP Claims
other than Non-Indemnified IP Claims, by third parties arising out of or
relating to the use of the Licensed Product; or (iv) any material breach of
or alleged material breach of any of the sublicensee's representations and
warranties or covenants (which includes non-payment hereunder). The
Sublicensee agrees to pay any and all obligations, liabilities, costs and
damages of the Sublicensor and its permitted assigns, and their respective
directors, officers, employees and agents, including, without limitation,
reasonable attorney's fees, which are attributable to any such claim,
action or proceeding if the Sublicensor or its permitted assigns, or their
respective directors, officers, employees and agents, having actual
knowledge thereof, promptly notifies the Sublicensee in writing of any such
claim, action or proceeding and gives the Sublicensee sole control of the
defense or settlement of such claim, action or proceeding and provides the
Sublicensee with reasonable non-economic assistance in the defense of any
such claim, action or proceeding.
ARTICLE 5. CONFIDENTIALITY
5.1 The Sublicensee acknowledges that the Licensed Product, Code,
Documentation, Upgrades, Custom Applications, and Know-How ("Licensor
Confidential Information") are confidential and contain valuable trade
secrets of the Licensor. The Parties also acknowledge that their
respective business plans, customer information, designs, know-how,
specifications and other information related to their business or
prospective business (the "Parties' Confidential Information"), are also
confidential and contain valuable trade secrets of the Parties. The
Parties' Confidential Information and the Licensor's Confidential
Information are collectively "the Confidential Information". Each Party
agrees to maintain the confidentiality of and not to release, disclose or
divulge any other Party's or Licensor's Confidential Information or any
part thereof to any person without the prior written consent of the
disclosing Party; provided that no Party shall be obligated to maintain in
confidence any information which:
(i) can be demonstrated by the receiving Party's written records
to have been in its possession prior to receipt thereof from the
disclosing Party;
(ii) is or becomes part of the public domain other than through
breach of this Agreement or through the fault of the other Party;
(iii) is necessarily disclosed in any products sold or shipped by
either of the Parties to any third party not subject to an obligation to
maintain such information in confidence;
(iv) is or becomes available to the receiving Party from a source
other than the disclosing Party which source has no obligation to the
disclosing Party in respect thereof;
(v) is made available by the disclosing Party in written form to a
third party on an unrestricted basis; or
(vi) is required by law or judicial process (however, upon receipt
of a demand for production of Confidential Information pursuant to law or
judicial process, the Receiving Party shall use reasonable efforts to
notify the other Party of such demand in sufficient time to allow the other
Party to move to prevent such disclosure).
Each Party shall instruct its employees who have access to the
Confidential Information to comply with the provisions of this Article 5
and shall use commercially reasonable efforts to prevent disclosure and
misuse of the Confidential Information by taking at least the same
precautions with respect to the Confidential Information as it takes with
respect to its own confidential information, which steps shall be no less
stringent than reasonable steps.
ARTICLE 6. TERM AND TERMINATIONS
6.1 Term. The term of this Agreement shall begin on the Effective Date
hereof and shall continue until _____________ [insert term] unless
terminated as hereinafter provided.
6.2 Termination for Cause. Either Party will have the right to
immediately terminate this Agreement if the other Party is in default of
any material obligation herein, and such breach is incapable of being
cured, or if such breach is capable of cure, such breach is not cured
within thirty (30) days after receipt of written notice of such default
from the non-defaulting Party or within such additional cure period as the
non-defaulting Party may authorize.
6.3 Termination for Insolvency. Either Party shall have the right to
immediately terminate this Agreement upon written notice in the event that
the other Party (i) voluntarily or involuntarily becomes the subject of a
petition in bankruptcy or of any proceeding relating to insolvency,
receivership, liquidation, composition or assignment for the benefit of
creditors; (ii) admits in writing its inability to pay its debts as they
become due; or (iii) ceases to conduct business in the normal course. Upon
dissolution of or the entry of a judgment in regards to any bankruptcy
proceeding against the Sublicensee, all rights to the Licensed Product,
Upgrades, Custom Applications and Documentation and all copies thereof that
are in the Sublicensee's possession will revert back to and be returned to
Licensor.
6.4 Termination of Master Software License Agreement. Notwithstanding
the foregoing, immediately upon the termination of the Master Software
License Agreement, the Sublicensee shall be deemed to be directly licensed
by the Licensor, subject to the terms and conditions of this Agreement and
the covenants, warranties and representations between the Sublicensee and
the Sublicensor shall be deemed to have been novated such that the
covenants, warranties and representations are as between the Sublicensee
and the Licensor.
6.5 Consequences of Termination/Expiration. Upon the termination or
expiration of this Agreement, each Party shall promptly return all
Confidential Information, and other information, documents, manuals and
other materials stored in any form or media (including but not limited to
electronic copies) belonging to or in the possession of the other Party,
except as may be otherwise provided in this Agreement.
ARTICLE 7. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
7.1 DISCLAIMER OF WARRANTIES. OTHER THAN AS SET FORTH IN THIS AGREEMENT,
OR IN A SEPARATE WARRANTY RELATING TO CUSTOM APPLICATIONS (HOWEVER, UNLESS
SPECIFICALLY STATED IN SUCH WARRANTY, ALL IMPLIED WARRANTIES ARE DISCLAIMED
AS SET FORTH IN THIS SECTION 7.1), NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE LICENSED PRODUCT,
UPGRADES, CUSTOM APPLICATIONS AND DOCUMENTATION OR THEIR USE, FUNCTION OR
OWNERSHIP. NEITHER THE SUBLICENSOR NOR LICENSOR SHALL BE LIABLE IN ANY
MANNER FOR ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER
EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR
OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABLE
QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED SOFTWARE,
UPGRADES, CUSTOM APPLICATIONS AND DOCUMENTATION WILL BE ERROR FREE.
7.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO ANY
OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES OF ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE
NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF WHETHER SUCH
LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY
OTHER THEORY OF LIABILITY.
7.3 LIMITATION ON DAMAGES. IN NO EVENT SHALL THE MAXIMUM AMOUNT OF
DAMAGES PAYABLE BY SUBLICENSOR OR LICENSOR FOR ANY BREACH OF THIS AGREEMENT
OR ANY DAMAGE OR INJURY RESULTING FROM THE LICENSED PRODUCT EXCEED
$_________ [INSERT].
ARTICLE 8 OTHER PROVISIONS
8.1 Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the Parties and their respective permitted successors and
assigns.
8.2 Third Party Beneficiary. The Licensor is an intended third party
beneficiary of this Agreement. Other than Licensor, this Agreement does
not contemplate, and the Sublicensor and Sublicensee do not intend, the
creation of any third party beneficiary rights in and to this Agreement and
no third parties shall have any rights hereunder. Sublicensee has no
rights in, to or under the Master Software License Agreement and hereby
waives any and all claims it may have against Licensor arising out of this
Agreement or the use, maintenance and support of the Licensed Product.
8.3 Survival. All representations, warranties, indemnifications, and
obligations that expressly or by their nature survive termination of this
Agreement, including without limitation all representations, warranties,
indemnifications, and obligations shall survive any termination of this
Agreement and shall continue in full force and effect subsequent to and
notwithstanding such termination.
8.4 Notices. Any notice required or permitted to be given hereunder
shall, except where specifically provided otherwise, be given in writing to
the person listed below by personal delivery, overnight delivery service,
or telecopier/fax, and the date upon which any such notice is so personally
delivered, or if by overnight delivery service, or telecopier/fax, the date
of receipt at the designated address or number, shall be deemed to be the
date of such notice, irrespective of the date appearing therein.
1. Requirements for notice.
(a) A notice, consent or other communication under this
document is only effective if it is:
(i) in writing, signed by or on behalf of the Party
giving it;
(ii) addressed to the Party to whom it is to be given;
and either:
(1) delivered or sent by pre-paid mail (by
airmail, if the addressee is overseas) to that Party's address; or
(2) sent by fax to that Party's fax number and
the machine from which it is sent produces a report that states that it was
sent in full.
2. When a notice is effective
(a) A notice, consent or other communication that complies
with this section is regarded as given and received:
(b) if it is delivered or sent by fax:
(i) by 5.00 pm (local time in the place of receipt) on
a Business Day - on that day; or
(ii) after 5.00 pm (local time in the place of receipt)
on a Business Day, or on a day that is not a Business Day - on the next
Business Day; and
(c) if it is sent by mail:
(i) within the same country from which it is sent - 3
Business Days after posting; or
(ii) to a place outside the country from which it is
sent - 7 Business Days after posting.
A Party's address and fax number are those set out below, or as the Party
notifies the sender:
SUBLICENSOR: Entrade Asia Pacific Pty Ltd
Address: Ground Floor, Durack Centre
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxxxx, 0000
Fax number: (000) 0000 0000
Attention: Chairman
With a copy to: GlobalNet Asia Pacific Pty Ltd
Address: Ground Floor, Durack Centre
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxxxx, 0000
Fax number: (000) 000-0000
Attention: Chairman
SUBLICENSEE:
With a copy to:
or addressed to such other person or at such other address, telex number or
telecopier/fax number as that Party may have given by written notice in
accordance with this provision.
8.5 Counterparts. This Agreement may be executed in counterparts and
shall become binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the Parties.
8.6 Independent Contractor. The Parties to this Agreement are each an
independent contractor as to the other and shall not be considered or
deemed to be an agent, employee, joint venturer or partner of the other
except as otherwise expressly agreed to in a writing signed by the Parties.
Neither Party shall have authority to contract for or bind the other in any
manner and shall not represent itself as an agent of the other or as
otherwise authorized to act for or on behalf of the other.
8.7 Export Controls. The Sublicensee expressly agrees that it shall
not, and shall cause its agents and representatives to agree not to,
export, directly or indirectly, re-export, divert or transfer the Licensed
Product, Upgrades or Custom Applications or any direct product thereof to
any destination, company or person restricted or prohibited by U.S. Export
Administration Regulations.
8.8 Force Majeure. Neither Party will be liable for the delay or default
in the performance of its obligations under this Agreement if such delay or
default is caused by conditions beyond its reasonable control, including,
but not limited to, fire, flood, accident, earthquakes, telecommunications
line failures, storm, acts of war, riot, government interferences, strikes
and/or walk outs. In the event of a force majeure event which lasts longer
than thirty (30) days, the Party not experiencing the force majeure event
may terminate this Agreement upon prior written notice to the other Party.
[The Signature Page immediately follows this page.]
IN WITNESS WHEREOF, the Parties have duly executed this
Agreement as of the date first written above.
Entrade Asia Pacific Pty Ltd Sublicensee
By: By:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
EXHIBIT D
LICENSED PRODUCT SPECIFICATIONS
-------------------------------
Entrade Transaction Software, Version 4.0
-----------------------------------------
Disclaimer
----------
Users of the xxxxxxx.xxx transaction software described herein are
responsible for obtaining all licenses for third party software utilized by
the xxxxxxx.xxx transaction software.
Functionality Overview
----------------------
Overview
--------
To begin conducting business in Entrade Transaction Software, you must
first register. Upon acceptance of the terms and conditions, you will need
to complete the registration form. Bold print is required information. On
the bottom of the form, you must choose your login ID and password. This
is your identification for the site.
You are now ready to login and explore the Entrade Transaction Software.
The first screen you see is our transaction center. The navigation bar
across the top of the screen includes the transaction, communication and
administration modules as well as the help desk and search engine.
Glancing at the left side navigation bar, you will find the catalog
directory, order worksheet, request form and create purchase order buttons.
Within the help desk, we maintain comprehensive information to clarify any
questions you may have including password changes, inventory, sale and
purchase histories and most frequently asked questions.
The search engine has the capability to do a general search, which hunts
for whole words, pieces of them, etc., automatically across all categories
and fields. There is also an advanced search that searches specific to
mapping fields (manufacturer, model number, etc) and can be general or
category specific.
The transaction module is the heart of the system. Here you will view
inventory and make purchases, place open bids or enter auctions. Clicking
on the catalog directory brings up the entire category listing. Choose the
category of interest to view the inventory items listed within. Icons next
to the item name will designate if the item is available for fixed sale,
bulk sale, open bid, auction and photo. Click on the inventory item to
get a more detailed explanation of product, view specification file, etc.
Purchasing an item is as easy as scrolling down and clicking on the
purchase type from those available for that particular item. The open bid
function lets a buyer select the quantity and price. It is submitted as a
purchase order and can be approved and processed by the seller or the
seller can make a counter-offer. This bargaining function is unlimited in
the amount of counter-bids it will support. The seller has the option of
choosing as many of the pricing options or as few as he/she desires when
listing an item.
Upon clicking purchase, you will view your order worksheet or shopping cart
showing the item name, cost, etc. You may now continue shopping or
browsing, checkout your order or clear something from your order worksheet.
Once you have chosen "Create purchase order", your billing and shipping
information will appear. Forms of payment are Purchase Order, Credit
Card, or Electronic Wire Transfer.
The status of your order will appear on the purchase order as well as in
the order worksheet. You can view all outstanding purchases in the
Administration Module under Outstanding Purchases. Once a purchase has
been approved by the seller, it will be visible in your Purchase history.
An item is available for auction when the auction icon is visible. To
participate in an auction, choose the appropriate product and complete the
information necessary. You can view your bid status from the
administration module. An internal email will be sent each time you are
outbid.
User Application
----------------
Site Map
--------
Transaction
-----------
Order Worksheet
Checkout
Make a Request
Advance Search
Catalog Director
Communication
-------------
Inbox
Compose
Folders
Address Book
Administration
--------------
Change Your Password
Update Your Profile
Credit Balance
Account History
Open Purchase Bid
Open Sale Bid
Outstanding Sale
Outstanding Purchase
Sale History
Purchase History
View Your Inventory
Add New Inventory
Update Inventory
Delete Inventory
View All Requests
View Your Requests
Make New Requests
Update Your Requests
Delete Your Requests
Help Desk
---------
Overview
How do I?
Site Map
This section is designed to give you a complete and highly detailed
description of the functionality of the generic Entrade software. It
contains a site map, a summary of all the modules of the Transaction site
and of the Administration site and an information sheet for each site in
the Entrade family. These sheets will detail the customizations specific to
that site. More information may also be found in the Help section of each
individual site.
As you look at the opening page of the Transaction site, you will see along
the top of the page four main headings. These link to the four individual
modules: Transaction, Communication, Administration and Help.
The Transaction module contains the catalog of inventory and all online
transactions, either sales or trades.
The Communication module is an internal messaging center and is set up like
most email accounts.
The Administration module lets a user update all personal contact
information, contains your on-going and past purchases and sales and allows
a Seller to manage his own inventory. You can also make requests for items
not listed on the site and read other users' requests for inventory here.
The Help module contains instructions and descriptions of each function as
well as answer to frequently asked questions.
Due to the nature of the site, it is very important that you do not use the
Back, Forward or Refresh buttons on your browser. This can alter the
results of transactions in which you are engaged. Back buttons are provided
on each page to allow this navigation to occur.
There is a status window located to the left of the screen that informs a
user, upon logging in, of any outstanding sales or purchases and of any new
messages received. This is visible from every module and is updated in
real time as transactions occur.
Transaction Module
------------------
The Transaction module of the site contains all of the inventory in the
catalog and is where purchases are made. Requests for items not listed on
the site may also be made from here.
Accessing Inventory
-------------------
To the top right of the screen there is a comprehensive search engine.
Enter in a word or words describing the item you are looking for in the
search field and the resulting list will contain all items on the site that
contain that word in any of its descriptive fields. An advanced search can
be used by clicking on "Advanced". This function lets you choose multiple
criteria and specific categories to search by and will result in lists of
only those items meeting all the criteria input. There is a "tips" section
located here to provide assistance in selecting search criteria. If your
search yields no results, you will be instructed to change your criteria or
to Make a Request for the item.
Clicking on Make a Request pulls up a request form. Descriptive fields are
listed including the item name, which is required. You can input desired
quantity and price as well. The more descriptive you are, the greater the
likelihood of a Seller matching your request. Sellers will be able to read
this form and add the item you are seeking to the site. You will be
notified by email when the item is added to the site. This functionality
is also accessible from the Administration Module.
The other means of accessing inventory is located on the left navigation
bar. You may select individual categories from the dropdown menu and click
"go" or click on Catalog Directory for a complete list of all main
category headings. The category tree is fully customizable and can be
extended into categories and sub-categories to an unlimited number.
Catalog structure is set up by the Site Administrator only and cannot be
accessed by a Buyer or Seller. The catalog tree is expandable and
collapsible for easy manageability. You can either expand or collapse the
entire catalog or use the plus and minus symbols to manage portions of the
tree. The number of available line items appears between the brackets [ ]
with Main Categories including the number of total available line items for
it and all sub-categories listed beneath it. The second set of brackets
indicates how many of these items are available for auction.
Clicking on a category name will bring you to an Item List page. All
inventory items cataloged under that heading are contained in this item
list. Items listed under subsequent sub-categories are reached by clicking
on the sub-category name at the top of the page.
You will notice the Bulk Purchase button at the top of the Category List.
This button allows a Buyer to purchase all items in the list that are
available for bulk purchase with the click on a single button. Not all
items will necessarily be available for bulk purchase. Those that are will
be denoted with the Bulk Purchase icon.
There are five icons that indicate purchasing options for individual
inventory items and will be located to the right of each Item Name if this
option is available for the item. These include Regular Purchase, Bulk
Purchase, Open Bid and Auction. These are shown and defined at the top of
the catalog list. A photo icon of a camera denotes those items that have
photos included in the description. The item list may be sorted by name,
price or quantity. This function is located to the right of the catalog
list and options are contained in the dropdown menu. Selecting one and
clicking on the Sort by button will reorder the list.
Clicking on the individual item name takes you to the Item Information
page. This page contains a full description of the item for sale and any
photos or documents that may be attached.
The Item Information page is headed by the Item Name and a photo, if one is
included. There is also a link to take the viewer to the Seller or
manufacturer's home page. The "Spec" link will pull up attachments, such
as a comprehensive description page, blue prints, large text files or any
other information that needs to be included.
Item Pricing
------------
Cash Price refers to the cost of a single item purchased with cash, check
credit card, wire transfer, letter of credit, etc.
Credit Price refers to the cost if purchased using internal system credits.
A credit module is included in the software and can be used to set up
budgets, allow trade purchases or other applications. It has its own
account management system. This credit price can also be customized to use
for multiple currencies.
Bulk Cash and Credit refer to the cost per item, generally reduced, for the
purchase of the entire quantity available.
Open Bid lets the Buyer make an offer for a quantity of the item. The
Seller can then choose to accept, decline or make a counter offer to this
bid. In effect, online negotiation.
Auctions are set up for items for a selected time period, where bids are
taken and at the end of the timeframe the highest bid wins. Auctions will
be discussed in greater detail in a later section.
The Main Information includes the Product ID, Seller, Condition,
Manufacturer and Model Number of the item listed. These fields are, of
course, fully customizable. The Main Description field details the item
and can contain up to 6000 characters. Additional information may be
included in an attached specification file as mentioned earlier or
Additional Fields, in unlimited number, may also be added to the
description page to highlight specific information; color or size for
example.
The purchase boxes are located at the bottom of the page. For a regular
Fixed Price transaction, input the quantity desired and select either cash
or credit, if available. A Bulk Purchase already has the entire quantity
included for the Buyer. Again, you need to select cash or credit. The
third purchasing option is Open Bid. A Buyer inputs the quantity desired
and also the price he wants to pay. Second and third offers can be made at
the same time for different quantities of the same item. A Seller will
then be able to choose among the multiple offers. Notes can be included
with all purchase offers. "Must receive item within a two week period,"
for example. Click on Purchase or Place Bid, and the item is transferred
to your Order Worksheet.
Your Order Worksheet holds all the items you wish to purchase until you are
ready to submit a Purchase Order. It is your shopping cart. From the
Order Worksheet, you can update your orders, delete them, clear your entire
worksheet or continue browsing the inventory. When you are ready to place
your order, click on Check Out.
At this point, a Buyer is required to log in to the system. Registration
is easy and requires minimal contact information, including name, company,
address, phone number and email address. You must also agree to the terms
and conditions of use. Select a user ID and password. By hitting the
submit button, the system will log you in and take you to the page you were
last on before the login screen appeared. If you are already registered
you need only enter your user ID or password. Registration is open to
anyone and allows only buying capabilities. To become a Seller, a user
must sign a listing agreement and the Site Administrator must change his
user role to "Seller". After Registering or Logging In, you are ready to
complete your order.
The Purchase Order page lists all items for purchase again. If these items
belong to multiple vendors the system will break the purchase order into
multiples as necessary. You choose your payment method from here, either
credit card, purchase order, or electronic transfer. Your Shipping and
Billing information is defaulted from registration, but can be updated from
the Purchase Order and made permanent as such, if desired. Click Submit
and the order is sent.
When an order is submitted the Seller is notified by various means. An
email is always sent to the internal communication module, and also to the
Seller's personal email account. He may also be notified by fax or pager.
This is instantaneous so that the Seller may login to the site as soon as
possible to complete the transaction.
Communication Module
--------------------
The Entrade software allows you to send email to other registered users
within the site-specific Communication system. You can receive system email
from other site users on your site email account. All internal email
account addresses are identified as the user ID. You must be logged in to
the site to access the Communication module.
This module functions as most Internet email accounts do with an inbox,
outbox, folders and an address book. The Communication module can be used
to exchange product information or requests through email and will be used
to notify Buyers and Sellers when transactions occur. An email will be sent
to you each time the status of one of your purchases or sales changes.
The Inbox contains all new messages as well as read messages that have not
been stored or deleted. In order to read a message, click on the Sender
Name or Subject of that email. Messages are chronologically ordered.
There are several options for each email message after it has been read.
The Reply button will allow you to send this message with your own notes
back to sender. Reply All will return this message to the original sender
and all cc: users along with your additional message. Forward will send
the text of this message to a new user.
You can manage the storage of each message by either using the Move To
button and choosing an individual folder or by Deleting this message. The
Delete button will send a message to the Trash Bin folder until the Trash
Bin is emptied.
To Compose a new message, the addressee must first be identified by their
username. The username is what is entered into the "To:" field as the
address. If you have set up recipients in your Address Book, you can click
on the Address Book link to identify system users, rather then typing their
usernames. Select the recipients by clicking on each respective To: or CC:
box. When the Send To button is clicked, a new message is ready to be
composed and sent to these recipient names.
A message subject line is required for sending a message and is followed by
the message content. The option exists to save a copy of this message to
your Sent Messages folder by clicking on the Save in Sent Messages box.
Click Send to transmit your message. The Save button will store this
untransmitted message to your Outbox folder. Cancel will delete this
message and bring you back to the Inbox.
Messages can be stored in folders. Standard folders include the Inbox,
Outbox, Sent Messages, Old Messages and Trash Bin. You can view the
contents of any folder by clicking on the folder name. To create a new
folder, choose the Create link on the upper right of the frame. Name this
folder and click Create, and your new folder is set up. You can rename a
previously created folder by choosing the Edit icon, or permanently delete
it by clicking on the Delete icon. When you delete a folder, all messages
within that folder will be deleted and moved to Trash Bin, where they will
remain until the Trash Bin is emptied. It is important to note that users
should periodically empty their Trash Bin of discarded messages by clicking
on the Trash Bin folder and clicking the Clear button.
The Address Book can store information about system users that you
frequently communicate with. The Address Book can store Individual names
or Group names can be set up. Group names allow you to store system users
under a single alias so that messages may be routed to common users by
entering one address. Click on the Create link in the upper right corner to
add an individual or group to your Address Book. Entries may be edited by
choosing the Edit icon or permanently deleted by clicking on the Delete
icon.
To Compose a message from your Address Book, identify the recipients by
clicking on each respective To: or CC: box. When the Send To button is
clicked, a new message is ready to be composed and sent to these
recipients.
Administration Module
---------------------
The Administration module contains your credit account, user profile,
transaction histories, ongoing sales and purchases, requests and inventory
if you are a Seller. As a registered user, you can modify your password
and update your contact information and manage all your site activity from
this module. You must be logged in to access any of the functions of the
Administration module.
Passwords
---------
The first link on the Administration module is Change Your Password. It is
recommended that you change your password on a regular basis. This can be
done at any time by selecting the Password link on the sidebar and
following the instructions. Passwords are encrypted for security purposes.
Update Profile
--------------
To change any contact information entered during the registration process,
select the Update Profile link and modify the information you wish to
update. Note that shipping and billing addresses do not need to be retyped
if they are the same. Simply select the Same as contact address box to
repeat the modifications. Once you are finished, click on the Update button
at the bottom of the screen. Cancel will delete any modifications you have
made.
Credit Account
--------------
Upon registration, a credit account was assigned to you. This credit
account refers to system dollars. It can be used for trading purposes or
for establishing budgets. You can view the balance of this account as well
as view the history of all credit transactions on this account in the
Administration module. All new accounts will have a zero balance until the
Site Administrator adds funds to the user account.
The Credit Balance link pulls up a screen that summarizes your current
account status. Your account ID number is located at the top of this
screen. Beneath this is your Credit Limit. This is the entire amount of
funds available for your transactions. This number will increase or
decrease as transactions are made. Your Available Balance is the amount of
funds in your account that are free for you to make purchases with. Your
Retained Funds is the amount that is being held pending the approval and
closure of Outstanding Purchases. Retained Funds and Available Balance
should total your Credit Limit.
Any transactions that credit or debit your account balance will be shown in
your Account History list. This record is to track your existing credit
status and determine how the current balance was derived. It includes
Sales and Purchases as well as deposits and withdrawals made by the Site
Administrator.
Open Bids - Purchase and Sale
-----------------------------
Open Purchase Bid and Open Sale Bid contain all on-going Open Bid
transactions that you are involved in. To view specifics of a transaction,
click on the Transaction ID number. It is from the Open Sale Bid that the
Seller will approve or counter-offer on any bids that have been submitted
to him. A Seller may accept only one of multiple bids submitted by a
Buyer, or can make multiple counter-offers. As mentioned earlier, this
"Online Negotiation" process is unlimited in scope. Buyers and Sellers can
also include notes with all offers. To counter- offer or to accept an
offer from a Seller, the Buyer would click on that transaction in his Open
Purchase Bid file. Open Bids may also be modified from here.
Once an Open bid is accepted, it is moved to the On-going Sales or On-going
Purchases file. From here it is treated as a regular accepted transaction.
A Buyer can view the status of on-going purchases from here by clicking on
the individual transaction ID number.
Sale Status:
Pending: Order has been submitted to the Seller for approval.
Accepted: Seller has agreed to terms of order and will notify Buyer
of shipping date.
Error: Seller requires more information from the Buyer before
sale can go forward.
On Hold: Sale has been rejected by the Seller and waiting
for cancellation of the order by the Buyer.
Closed: Order has been accepted by the Seller and shipped to
the Buyer.
Rejected: Seller has rejected the order by the Buyer. Buyer must
cancel the order or resubmit the order meeting Seller's
objections.
Outstanding Sales and Purchases
-------------------------------
Buyers can review transactions and check order status from here. Click on
the individual transaction ID number to access the specifics of a
transaction. When the status changes, you will also receive a message in
your system email account and to your personal email account.
The Seller will accept or reject the offer from the Outstanding Sales file.
The Seller selects the transaction from the list and clicks on the ID
number to view and act on the transaction. Once a sale is accepted, the
final step in the transaction process is to close the sale. The Seller
will included all taxes and shipping at this time and an email will be sent
to the Buyer notifying him of such and including a tracking number for the
shipped item if available. In most cases the Seller will not ship the item
until payment has been received.
Sale and Purchase History
-------------------------
Closed Sales are located in the Sales History and the Purchase History.
All closed transactions appear in this file and are once again accessed by
clicking on the Transaction ID number. Transactions in the list can be
sorted by clicking on the bottom of the column.
Requests
--------
To post a request for a desired item that you do not find listed in the
catalog, click the Add New Request link and fill in the appropriate
information. Fields are included for Quantity, Price, Description,
Manufacturer and Model Number, among others. All fields except Item Name
are optional, but the more detail that is given, the more closely matched
your request is likely to be. Once this is done, click the Submit button
to post the request on the site.
To view all inventory requests, click on the View All Requests link. A
list of requests will result and specifics of each request can be viewed by
clicking on the individual Request ID number. To match a request, recall
the Request ID number and go to Update Inventory. Enter the Request ID
number into the Request Item ID field and click on Update. An email will be
sent to the Requestor letting them know of a possible inventory match.
Buyers will be able to go from their request directly to this item. You may
also add new items and link these to the Request ID.
To view only your own requests click on the View Your Requests link. Your
requests will be listed here in order of date submitted.
You may modify your requests by choosing the Update Your Request link and
clicking on a specific Request ID number. Make your modifications and
submit.
To delete a request you have made previously, choose the Delete Your
Request link and select the appropriate Request ID. The request
information will be shown and you may either click the Delete button or
Cancel this action.
Inventory
---------
Only a registered Seller can manage inventory. To become a Seller, a
registered Buyer needs to contact the Site Administrator. After signing a
listing agreement, the Administrator can update the your user role from
Buyer to Seller. As the Seller, you may add, review, update and delete
your inventory manually. If your inventory quantity is large, it can be
uploaded using the Bulk Upload tool. For more information on this consult
the Inventory Management section of this manual.
To view your inventory, click on the View Inventory link. You are provided
with multiple ways to search for the item you wish to review. You can
search by ID number, key words, multiple fields or by category. You can
also select to view your complete list of inventory. Each item's detail
may be inspected by clicking on the ID number from the resultant search
list.
To add inventory to the site, click on the Add New Inventory link. This
will bring up the complete catalog tree including all categories and
subcategories available on the site. Click on the category or subcategory
in which you want your item(s) to appear. If you believe that your
inventory should be in a catalog that is not listed contact the Site
Administrator about setting up a new catalog.
After selecting the appropriate category, a screen appears with the
information required to list your inventory. Note that fields with an
asterisk (*) are required fields. For pricing, you may select any and all
of the options available. You may also make this item available for
auction at any time. Remember that the quantity for sale needs to be
reduced by the amount you make available for auction.
Enter all the appropriate information for your item. You should also
attach any specification files or photos now. Click on the Add button at
the bottom of the screen.
You can also edit your current inventory. Click on the Update Inventory
link and type in your item ID number or select the item you wish to update
through the search methods and then click Next. You may modify any of the
fields of the selected item, then click on the Update icon at the bottom of
the screen to save these changes.
To delete inventory from your current list, click on the Delete Inventory
link. You will be prompted for the item ID number that you wish to delete
or search for that item using the methods provided. Click directly on the
item ID number of the item you wish to delete. Next click on the Delete
icon at the bottom of the screen.
Auction
The Entrade auction technology is fully integrated into the transaction
software. This means that auctions are easily set up for items already
existing in the inventory and that items for auction can be made available
for general purchase if they are not sold via auction, using the shared
database. An item may also be available for general purchase at the same
time a portion of the quantity is being auctioned. However, the auction
technology may be employed without making any items available for general
purchase, thus creating an wholly auction site.
If a Buyer is only interested in items being auctioned, he can click on the
Upcoming Auction or the Ongoing Auction links provided on the left of the
screen. As an item that is put up for auction is also included in the
entire catalog of inventory, a Buyer can also perform an advanced search
across all catalogs and use only the purchase criteria of 'auction'. The
resulting list will be all of the items currently being auctioned on the
site. Items in the catalog that are being auction are flagged with the
fourth purchasing icon, a red gavel.
The user then selects the desired item from the list and is directed to
Item Information page, as in a regular transaction which shows all
information about the auction, such as auction start and end time, starting
bid, minimum bid, and whether the Seller has set a reserve price or not.
If a Seller has set a reserve price, a high bid is not a winning bid until
the Seller's reserve price is met. This screen will also show the list of
all winning bids for the auction, and the form for the user to complete to
place a bid.
Placing Bids
------------
To place a bid, select your desired quantity and a price per unit you are
willing to pay. The Allow Partial checkbox is an option that tells the
system that you will accept a lesser quantity if you are outbid for a
portion of this item. For example, you bid for a quantity of 50 at $5.00
and the next bidder bids for 30 at $6.00. Your quantity will be reduced to
20 at $5.00. The 'allow partial' option is checked by default. You also
have the option of placing an Auto Bid amount. This tells the system to
increase your bid automatically up to the amount you allocate if you have
been outbid.
Placing your bid takes you to the Auction Bid Information screen where you
review the bid, billing and shipping information. This screen is the same
as the Purchase Order screen for regular transactions but applies only to
the auction bid being submitted at that time, not those items on your order
worksheet that you may have purchased as cash, bulk, or open bid. After
reviewing all the information on this screen, the user clicks a submit
button, and at this point the bid is placed.
Bid Status
----------
Successful - You have input a high bid. A high bid is not a winning bid
until the Seller's reserve price is met. [Shown as a green circle icon].
Partially Successful - For partial high bid, the quantity in the bracket is
the actual quantity committed. [Shown as a half colored green circle
icon].
Unsuccessful - Your bid does not exceed the current high bid. [Shown as a
red circle icon].
Outbid
------
If you are outbid in an auction, you will receive an email notification
both to your personal email account and through the Communication module.
The email tells you the minimum winning bid, your current bid, and gives
you a direct link to the product Auction page to change the bid.
Ongoing Auctions
----------------
You may view your active bids in the Administration Module as a Buyer or
Seller. As a Buyer, the Buyer Ongoing Auction link will pull up a list of
all bids you have placed on current auctions and details the product name,
bid amount, quantity, rank of bid (successful, unsuccessful, or partially
successful), and the time and date the auction closes. Clicking on the
Product ID number will bring up the full details of the auction. The Buyer
Auction History link will give you a list of all completed auction
transactions.
As a Seller, you may also view your auctions in the Administration Module.
The Seller Ongoing Auction link will pull up a list of all the items you
currently have available for auction and detail the product name, current
high bid, and the closing date and time. This list will also include
details of Upcoming Auctions. The Seller Auction History link will list
all your closed auctions and details the product name, the high bid, the
closing date and time, and the ranking status of the auction (successful,
unsuccessful, partially successful). Clicking on the Product ID number
will bring up the full details of the auction and will also provide a link
to orders generated on successful auctions.
There are also two links provided in brackets that will allow you to view
Ongoing Auctions and Upcoming Auctions that can be sorted by Name, starting
time, closing time, starting bid, or quantity. The Upcoming Auction link
also has an option that can notify you when the auction has started through
an email notification that provides a direct link to the auction.
Closed Auctions
---------------
Once the auction ends, winning bids will be stored in your Outstanding
Purchases as a regular transaction, pending the closing of the sale by the
Seller. Once closed by the Seller, you can view the history of the bid in
the Purchase History of the Administration module.
Adding Auction Inventory
------------------------
There are two ways to put a product on the system for auction. You can
either add a new product or modify an existing product.
When you add a new product for auction, you use the Add New Inventory link
in the Administration Module. This links to the template for a general
sale item, that asks you for appropriate information about the product,
such as product name, condition, price, type of sale, etc. You then
specify the item as an auction type of sale. On the New Product form, you
will see an extra checkbox and a new section of the form for auction
information. The required fields for an auction only product are product
name, quantity type, and the information inside the auction section of the
form. To be able to offer a product for auction, you will have to:
Check the Auction checkbox
There is an option to specify specific user groups or Sellers that can have
access to place bids on your auction items.
Specify the quantity available for auction only. Please note that auction
quantity is separate from regular quantity if available as cash purchase.
Ex . If you have 100 items for sale, and you want to offer 80 of them for
regular sale and 20 for auction, then input 80 in regular quantity, and 20
in Quantity Available for Auction. You also can specify this auction
quantity to be available as a bulk purchase only. Ex. If you have 50
items for sale, by checking the bulk auction box potential Buyers can only
purchase the entire 50 items.
Specify start date/time for auction. You cannot start an auction at a past
date or time. Auctions can be set on the hour.
Specify end date/time for auction
Starting bid is a required field where you specify the starting price for
the product.
Bid increment is a required field. Specifies the increment at which
bidders will be able to raise their bids.
Reserve price specifies the minimum price at which you agree to sell the
product. This value is not visible to Buyers. They will only be able to
see whether a Seller has set a reserve or not.
Note: Often Sellers specify a very low starting bid. This creates a danger
of not generating enough interest in Sellers to drive the bids up to a
desired price. You may end up selling the product at very low price. This
is when you would want to use the reserve price field. The Reserve Price
is to protect you as a Seller from letting an auction end with too low of a
selling price.
. If you only selected Cash Auction, please enter the values in
Cash amounts.
. If you have selected Credit Auction, please enter the following
values in Credit amounts. The currency conversion rate should remain at $1
cash = $1 credit.
. If you have selected Cash and Credit Auction, please enter the
following values in cash dollars and the system will convert the amounts
into credit based on the currency conversion rate you selected below.
. You can choose a non-auction purchase method through Open Bid
if you have auction quantity remaining after the auction has closed. To
make the remaining quantity available for Open Bid purchase after close of
the auction, select the Open Bid method desired from the drop down box.
This will tell the system to automatically transfer those remaining
quantities to the non-auction purchase method you have selected.
If you have an existing product for sale in your inventory, you may modify
it to offer it for auction. In your Administration module, go to Update
Inventory and find the product you want to offer for auction. The Update
form will also have a section for auction information. You have to check
the Cash Auction checkbox and fill all the necessary information for an
auction. Please remember that regular quantity and auction quantity are
two unrelated fields. If you have 100 items for sale, and you want to
offer 20 for auction, then you have to decrease quantity of the product to
80, and put 20 in Quantity Available for Auction.
If you've added an auction, but want to change something, you can make
modifications as long as the auction hasn't started yet. If it's 12 pm
now, and you set your auction to start at 2 pm today, then you have 2 hours
to change any parameters of the auction.
If there is a live auction in progress, you will be able to modify some
parameters. You will be able to add more items to the auction quantity,
but not decrease the amount. You will also be able to extend the auction
timeframe, but only in case where your reserve price has not yet been met.
If you didn't set a reserve price, you will not be able to extend your
auction, or add a reserve price. You can change the non-auction purchasing
method you have selected for the remaining quantities after the auction has
closed.
When auctions end, all successful bids are processed and new orders are
generated as a regular transaction Purchase Order. These are viewable
through the Administration Module in Outstanding Sales or if the
transaction is closed, through Sales History or Seller Auction History. If
you specified a transferring method for remaining quantities after an
auction closes those quantities will be moved. Otherwise, they are not
available for sale but are maintained as auction inventory.
Help Content
------------
Advancement of the Entrade Knowledge Base will be an ongoing project that
will provide an interactive and dynamic Help Desk experience to the user.
Administration Application
--------------------------
Site Map
---------
General
-------
Broadcast
Message Template
System Status
Log out
User
----
Manage User
Online User
Log out
Category/Inventory
------------------
View Category
Add New Category
Update Category
Delete Category
View Inventory
Add New Inventory
Delete Inventory
Update Inventory
Inventory Log
Depleting Mode
Logout
Transaction
-----------
Fee Schema
View Transaction
View Open Bid
Logout
Reports
-------
Inventory Transaction Summary
Order Packing List
Item Summary
Purchase History
Sales History
Transaction Summary
The administration site is located at a different URL from the general user
site. This site has a very simple look and feel. Administrators are the
only user level that can access this site.
The administration site is divided into five modules:
- General
- User Management
- Category and Inventory Management
- Transaction
- Report
General
-------
The General Module allows the administrator to broadcast an email to all
system users, or all buyers, sellers or administrators. The messaging tool
is similar to the Communication Module of the transaction site.
The message template contains a description of all the email messages that
are system generated when a purchase has been accepted, rejected, pending
or shipped by the seller. A message is also generated when a seller or
buyer has made an offer or counteroffer for an auction or open bid item.
Each message is written in 2 formats - html and text content. The html-
formatted message is sent to the Communication Module and the text format
message is sent to the external email of the user.
The system status will display as being open or closed. The system is
only closed for emergency maintenance.
User Management
---------------
Any user can be managed using this module. There is a search engine
provided to locate users. Type in your search criteria and click "search."
You are not required to enter information in all the fields. You can
search by User Name, First Name, Last Name, or Company Name. Once the user
has been found, the administrator can perform the following tasks by
clicking on the name of the user:
Change the user's password - If a user has forgotten their password, you
can change it here. You can also have the system send an email
notification to the user of this change.
Update the user's profile - From here, you can update the company name,
contact details and the billing and shipping information of any user.
Change the access level of the user (buyer, seller, administrator) - You
can modify the access level of any user. When a user initially registers,
the default access level is to a buyer. Only the administrator, using this
section, can change a buyer to a seller or another administrator.
Credit or Debit the user's credit account - One of the purchase methods
available is an internal credit system established for new users. As a
buyer purchases items, the credit system depletes the amount automatically.
As an administrator, you can add (credit) or subtract (debit) to this
amount. To add credit, simply enter the amount you wish to add. To
subtract credit, put a minus sign before the amount to be debited.
Set user's System Fee - There are different system fees that can be
applied to different sellers: a listing only fee, a flat only fee or a
percentage only fee. You can apply all of these or use any combination of
the three. You also have the option of not applying any system fees.
Disable the User - prevents a user from logging onto the site.
Delete the User - removes the user from the site.
You also have the ability of viewing all users currently logged onto the
user site by clicking on the online users link at the left side bar.
Category and Inventory Management
---------------------------------
There are two main functions within this module that allow you as an
Administrator to manage catalogs, categories and inventory items.
This module allows the administrator to view, add, update or delete any
category or sub-category on the site. Any modification made will
immediately be reflected on the user site. When adding or updating a
catalog, the administrator has the ability to add descriptive fields as
well as enable the advance search feature on these fields. Descriptive
fields are set up by category. Different fields can be added for different
categories. For example, one category can have an additional field for
"manufacturer number" while another category does not require this field.
When adding additional descriptive fields, the following information must
be entered:
1. The field name which can only be populated by alphabetical
characters and cannot contain any spaces. Ex. REFNUMBERS
2. The field alias is the name that will be displayed on the user
site. It can be composed of multiple words. Ex. Reference Numbers
3. Select Enable or Disable. By selecting enable, this field will
be searchable from the advance search module of the user site.
4. Click Finish when all fields have been filled in.
To set up a new catalog, category or sub-category:
1. Click on the Category/Inventory Module from the administration
site.
2. From the left side bar make your selection to view, add, delete
or update a category
3. Click on next button, and follow the prompts:
- If adding a new category, select a parent category, name the
category, and add any number of additional descriptive fields required to
describe your inventory items. Also identify whether you want to be able
to search on this field by selecting the enable feature. A future
enhancement will allow categories to be made available to specific sellers.
- If updating a new category, select the category you wish to
update. You can then modify the parent category, modify the category's
general information and modify, add or delete any of the additional
descriptive fields.
- If deleting a category, please note that all inventory items
contained under that category will also be deleted.
When fished, be sure to go back and view the catalog and its contents for
accuracy.
In addition to the above, you also have the option of moving an entire
category to another category or making it a sub-category. Please note that
any inventory items falling under that category will be moved too.
- From the administrator's site, click on the Category/Inventory
Module.
- Select Update Category on the left side bar.
- Click on the next button.
- Select the category you would like to move and click on the
next button. The category you selected will become highlighted.
- Select the category you wish to move this category to. Be
aware of the root structure of the catalog before selecting where you would
like it to be moved. Click on the next button.
- Modify any category information as necessary, and click on the
next button.
- Update or add additional descriptive fields as necessary, and
then click on the finish button. Your category has now been moved.
When finished, go back and view catalog for accuracy of its placement. If
changes are required you can update your category or move it again.
The second functionality of this module is to allow the administrator to
view, add, update or delete any inventory items listed on the site. To
set up a new inventory item follow these steps:
- From the administrator's site, click on the Category/Inventory
Module
- From the left side bar make your selection to view, add, delete
or update an inventory item
- Click on the next button, and follow the prompts:
. When adding a new inventory item, select a parent
category you wish to add the inventory item to and click the next button.
You will go through a template that asks you for appropriate information
about the product, such as item name, condition, unit price, type of sale,
seller/owner, type of sale, manufacturer name, and any additional
descriptive fields you might have added when setting up the category.
When adding new inventory items, specify the type of sale from the
following selection along with the unit price. You may select any
combination of sale types:
1. Fixed Cash - refers to a set price using any external
payment option, i.e., Purchase Order, Credit Card or Electronic Funds
Transfer.
2. Fixed Credit - refers to a set price using system's
internal credit account.
3. Bulk Cash or Credit - refers to the option of selling the
entire lot of items at one fixed price, cash or credit.
4. Cash Open Bid - allows the buyer to select the quantity
and price he is willing to pay. This is submitted as a cash price to the
seller who has the option to approve or make a counteroffer on the bid.
5. Credit Open Bid - allows the buyer to select the quantity
and price he is willing to pay. This is submitted as a credit price, using
the internal credit account, again giving the seller an option to approve
or make a counteroffer on the bid.
6. Auction - Cash, Credit or Bulk - offers this item for
sale to the highest bidder.
You also have the option of adding a picture or specification file to the
inventory item.
To add a picture, go to the upload inventory picture field on the item
information template and click on the browse button which will bring up
your desktop. From there, find the photo file you wish to upload. The
system will automatically format the picture size.
Some inventory items may require additional information such as blueprints
or drawings. To add a specification document, go to the upload
specification field on the item information template and click on the
browse button and find the document, blueprint, or drawing on your desktop
to add to this inventory item.
. When updating a new inventory item, select the category the
inventory item is under and then click on the inventory item you wish to
change. The product information template will come up for you to make your
changes. When finished, hit the update button. Your changes are now
viewable on the user site. There are multiple ways to search for an
inventory item - by inventory item ID # (system generated), keyword
search, or across any descriptive fields that are enabled.
. If deleting an inventory item, select the category the
inventory item is under and then click on the inventory item you wish to
delete. The item information of that inventory item will be shown. Click
on the delete button at the bottom of the screen if you are sure you want
to delete this item. Once you click on that button, the item has been
deleted. Remember that if you need to delete all inventory items that fall
under that category it is much easier to delete the entire category.
When finished, go back and view inventory for accuracy. If changes are
required, follow the above instructions for updating inventory.
On the item information template, you can specify the inventory item as an
auction type of sale by checking the item available for auction checkbox.
To be able to offer a product for auction you will have to:
- Check the Auction checkbox
- Specify the user groups that have access to place bids on your
auctions.
- Specify the quantity available for auction. Please note that
auction quantity is separate from regular inventory quantity. Ex. If you
have 100 items for sale, and you want to offer 80 of them for regular sale
and 20 for auction, then input 80 in regular quantity, and 20 in quantity
available for auction. You also can specify this auction quantity to be
available as a bulk purchase only. Ex. If you have 50 items for sale, by
checking the bulk auction box potential buyers can only purchase the entire
50 items.
- Specify start date and time for your auction. You cannot start
an auction at a past date or time. Auctions times are set on the hour.
- Specify end date and time for auction.
- Starting bid - specify the starting price for this auction.
This is a required field.
- Bid increment - specify the increment at which bidders will be
to able to raise their bids. This is a required field.
- Reserve Price - specify the minimum price at which you agree
to sell the product. This is NOT a required field. This value will not be
visible to bidders. They will only be able to see whether you placed a
reserve or not. Note: Often sellers specify a very low starting bid to
entice bidders. This can create a danger of selling a product at very low
price. This is when you should use the reserve price field. This will
protect your interests as a seller.
Please note: When specifying the starting bid, bid increment, and reserve
price amounts, follow the guidelines below for the currency conversion rate
of cash and credit:
. If you have only selected Cash Auction, please enter the values
in Cash amounts.
. If you have selected Credit Auction, please enter the following
values in Credit amounts. The currency conversion rate should remain at $1
cash = $1 credit.
. If you have selected Cash and Credit Auction, please enter the
following values in cash dollars and the system will convert the amounts
into credit based on the currency conversion rate you select.
- Non-auction purchase method - if you have auction quantity
remaining after the auction has closed, you may make this available for
Open Bid purchase after close of the auction. Select the Open Bid method
desired from the drop down box. This will tell the system to automatically
transfer those remaining quantities to the non-auction purchase method you
have selected.
You may update any of your auction details up until the time the auction
starts. By following the above procedures for updating inventory.
Once your auction has begun, the only changes that can be made are to add
inventory quantity, extend the auction (but only in cases where your
reserve price has not been met) and change the non-auction purchasing
method.
Inventory Log
-------------
The Inventory Log functionality allows the administrator to track changes
to inventory. You can select a list by seller for a specified date span.
It will display the inventory item number, the user name, the action taken
- addition, deletion or update -- , quantity and the log date. This is a
monitoring functionality for administrators to monitor the quantity levels
of inventory by seller to ensure no inventory items are sold off line.
Depleting Mode
--------------
The depleting mode functionality allows the administrator to choose whether
inventory items with a zero quantity appear on the site or not. By
choosing "show," the inventory item remains listed in the catalog, and by
choosing "hide," the inventory item is removed from the catalog.
Transaction Management
----------------------
Administrators use this module to set transaction fee rates for sellers,
view transactions, view auctions and view open bids.
Fee Schema
----------
System fees apply only to sellers. There are no limits to the quantity of
fee schema possible on the site.
Each fee schema can be composed of a combination of three transaction fees:
A listing fee is applied each day an item is listed on the site.
A percentage transaction fee is applied when a transaction closes. The fee
is a percentage of the final cost of the transaction. The administrator
can set several intervals where the percentage transaction fee differs from
one interval to the other.
For example: $ 1 - $1,000 = 5% transaction fee
$1,001 - $3,000 = 10% transaction fee
$3,001 - $5,000 = 15% transaction fee
A Flat Rate Transaction Fee is applied when a transaction closes. A
predefined amount is charged to the seller for each transaction. The
administrator can set several intervals where the flat rate transaction fee
differs from one interval to the other.
For example : $ 1 - $1,000 = $ 5 transaction fee
$1,001 - $3,000 = $10 transaction fee
$3,001 - $5,000 = $15 transaction fee
View Transaction
----------------
The administrator can view a summary of any on-going or closed
transactions. Use the specialized search engine to set search criteria for
the transaction you wish to view. For example, by order status (closed,
accepted, rejected etc.), seller, cash amount, transaction time span,
order amount, or order date. You can also search by the order ID number
which is system generated every time you place an order.
View Auctions
-------------
The administrator can also view a summary of any on-going or closed
auctions by a buyer or seller. This also contains a specialized search
engine to set a search criteria for the auctions you wish to view.
View Open Bid
-------------
The administrator can view a summary of any on-going or closed open bid
transactions accepted or rejected by the buyer or the seller. This also
contains a specialized search engine. For example, by open bid status,
seller, buyer user name, transaction time-span, or open date. You can also
search by the open bid # which is system generated when an open bid is
placed.
Report Management
-----------------
Currently, there are six Crystal Reports that can be viewed through the
browser. These reports are dynamically populated. The available reports
are listed below:
Inventory Transaction Summary: Details transactions sorted by product.
Order Packing List: Details all closed transactions.
Product Summary: A comprehensive list of all products available on the
site per catalog or category
Purchase History: All transactions grouped by buyer.
Sales History: All transactions grouped by seller.
Transaction Summary: All transactions grouped by status (open, closed,
etc)
Please note there is a link to Login or Logoff on the left side bar of each
module depending on whether you are logged in or not.
System Requirements
-------------------
CLIENT SIDE
Browser IE 3.X or higher
Netscape 3.X or higher
Client Workstation
Operating Systems Win 95
Win 98
Win NT 4.0 Workstation
Screen Resolution 800X600
Number of display colours - 256
Will operate reasonable at 640X480
Modem Speed 28.8 kbs (target)
SERVER SIDE Windows NT Server 4.0 (SP3)
IIS 4.0 (OP 4)
SQL 7.0, ADO 2.1
Crystal Report 7.0
