Caliach Distribution and Support Agreement

Dated:

CALIACH LIMITED

and

<<Full company name of the distributor>>

DISTRIBUTION AND SOFTWARE SUPPORT AGREEMENT

THIS AGREEMENT

takes effect on and from <<Date Agreement is effective>> and is made

BETWEEN:-

(1) CALIACH LIMITED ("Caliach") a company incorporated in England with registered number 2496263 and having its registered office at P. O. Box 1295, 20 Station Road, Gerrards Cross, Bucks SL9 8EL England and whose trading address is Cedar House, Vine Lane, Hillingdon, Middlesex UB10 0BX England; and

(2) <<Full company name of the distributor>> ("the Distributor") a company incorporated in <<Distributor's country of registration>> and having its principal place of business at <<Distributor's trading address>>

WHEREAS:-

(A) Caliach is engaged in creating, developing and/or marketing and licensing the software as defined below, including documentation and manuals therefore (the "Software")

(B) The Distributor is engaged in the business of selling and distributing software licenses and of providing associated software support

(C) Caliach has agreed to grant to the Distributor the right to market and distribute Software licenses throughout the world, all of which the Distributor has agreed to do in accordance with and subject to the terms and conditions set out in this Agreement

NOW IT IS HEREBY AGREED as follows:-

1. Definitions and interpretation

1.1 In this Agreement, unless the context otherwise requires:-

Caliach's web site www.caliach.com Internet web site;
day means any day in the week;
Effective Date means <<Date Agreement is effective>>;
End-users means duly-licensed end-users of the Software;
month means a calendar month;
Software means the software package and its associated files known as CaliachMRP running under Omnis 7 local area network current as at the date of order as published on Caliach's web site;
Software License means a license duly issued by Caliach for the use of the Software;
Software support means maintenance and support services in respect of the Software;

1.2 Reference to a Clause or a Schedule is to a clause in or schedule to this Agreement, reference to which shall include the Schedules. The index to and headings in this Agreement are for convenience only and do not affect its interpretation.

1.3 Unless there is something inconsistent in the subject or context, words denoting the singular number only shall include the plural and vice versa, reference to one gender only shall include the other genders, words denoting corporations shall include individuals and vice versa and references to "person" include a firm or corporate body.

1.4 As used in this Agreement, "including" and "in particular" shall be construed as not limiting any general words or expressions in connection with which either of those expressions is used.

1.5 Where in this Agreement reference is made to Caliach publishing or notifying any information, such requirement may be met by the relevant information appearing on Caliach's web site or freely available digital compact disks from time to time.

2. Appointment

2.1 Subject to payment of the fee as provided in Clause 2.2, Caliach hereby appoints the Distributor on and subject to the terms of this Agreement to be a non-exclusive distributor for the sale of Software Licenses under Caliach's trade mark throughout the World during the period of this Agreement.

2.2 On or prior to the Commencement Date the Distributor shall pay to the Supplier the agreed appointment fee.

2.3 Subject to the provisions of Clause 12, this Agreement shall commence on the Effective Date and shall continue thereafter for successive periods of twelve months until terminated by either party giving to the other not less than three months' written notice to take effect at the end of any such twelve month period.

3. Grant

3.1 During the period of this Agreement, the Distributor shall be entitled to market and sell Software Licenses throughout the World.

3.2 This Agreement shall also operate as a license on Caliach's standard License Agreement terms for the Distributor to use the Software for demonstration, testing, support and such other purposes directly connected with this Agreement. This right shall subsist for so long as this Agreement remains in effect or until or unless otherwise revoked.

3.3 The Distributor shall not modify, amend, add to or in any way alter without Caliach's prior written consent any Software supplied to it under this Agreement.

4. Caliach training and support

4.1 Upon payment of the appointment fee, the Distributor shall be provided by Caliach with a Start-up Pack to include Operating program license, one reproducible copy of all written information which Caliach deems necessary for the Distributor to use in distributing and supporting Software Licenses, together with such other support and sales material as Caliach deems appropriate.

4.2 Caliach will provide on reasonable notice such training for the Distributor's staff as the Distributor requests, in each case at Caliach's then current daily consultancy rates together with travel, subsistence and other reasonable expenses.

4.3 In addition to training provided for in Clause 4.2, Caliach undertakes from time to time during the continuance of this Agreement, at the request and cost of the Distributor, to provide the Distributor with adequate commercial and technical assistance in connection with distribution and support of Software Licenses. The cost of such assistance will be agreed in advance between the parties.

5. Sales of Software Licenses

5.1 Orders for copies of the Software shall be promptly communicated in writing by the Distributor to Caliach in a form determined from time to time by Caliach. The Distributor shall ensure that sales are to responsible End-users, such that Caliach's reputation is not brought into disrepute. The Distributor will not effect a sale to a new End-user on terms that oblige Caliach to make modifications to the Software specifically for that End-user unless Caliach has previously given written consent to such sale;

5.2 Current end-user UK prices for the Software and Software Licenses and rates for Software support will be as shown on Caliach's web site. Price and rate changes will take effect three months after first notification on Caliach's web site. Caliach will supply Software to the Distributor at discounted rates agreed from time to time, dependent on the Distributor's sales and support performance. Caliach reserves the right to disapply any discount in respect of invoices more than thirty days overdue.

5.3 Except in circumstances where the Distributor is knowingly in default of the terms of this Agreement or any other contractual obligation to Caliach (and in particular where any agreed credit limit granted by Caliach to the Distributor has been exceeded), Caliach shall accept and use all reasonable endeavours to fulfil orders for the Software within agreed delivery schedules but shall not be liable in any way for any loss of trade or profit or any other loss suffered by the Distributor in the event of delivery being frustrated or delayed for whatever reason.

5.4 Within a reasonable period (being not longer than ten days) after receipt of each written order accepted by it, Caliach will despatch, by post or by such other carrier as the Distributor may request, copies of the Software to the Distributor at the Distributor's address shown in this Agreement or at such other address as the Distributor shall from time to time notify to Caliach as its delivery address for that order, in each case at the Distributor's expense.

5.5 Software in transit shall be at the risk of the Distributor.

5.6 In the case of each Software License sold by it, the Distributor shall require the End-user to complete and submit to Caliach a standard License Order Form, Registration and License Agreement such that Caliach may accurately allocate a particular serialization number for that End-user and issue self-licensing authentication instructions.

5.7 The Software will be licensed only in accordance with Caliach's License Agreement current from time to time.

6. Software support

6.1 With each Software License sale, the Distributor shall commit to providing Software support to the End-user, on terms negotiated by the Distributor but in each case complying with Caliach's reasonable requests to ensure that the End-user is satisfied with the terms thereof and the service provided.

6.2 The Distributor shall use all reasonable endeavours to renew Software support contracts with End-users on an annual basis and, unless it otherwise notifies Caliach in writing that there has been no such renewal, the Distributor will be invoiced annually by Caliach with a Software support fee, again at agreed discounted rates from Caliach's published end-user UK prices, in respect of each End-user to which Software has been supplied by the Distributor. The level of discount rate shall be subject to review from time to time in the light of services provided to the Distributor by Caliach as agreed between the parties.

6.3 The Distributor shall not be entitled to receive any discount off Caliach's published end-user UK prices for Software sold to End-users with which the Distributor has no current Software support contract.

6.4 In all cases where the Distributor has entered into a Software support contract with an End-user the Distributor shall, using its own staff and resources, offer comprehensive, efficient and effective Software support commensurate with normal industry standards, and in particular the Distributor shall maintain in-house or otherwise provide at its own cost support staff having a level of expertise and knowhow capable of dealing with all matters associated with the Software and explicitly addressed in the relevant Software reference book, revisions and notices without recourse to Caliach.

6.5 Without prejudice to the generality of the Distributor's obligations as expressed in Clause 6.4 above, the Distributor shall provide all such duly-licensed End-users having a current Software support contract with the Distributor and registered as such with Caliach with the following support services:-

6.5.1 subject to payment by the relevant end-user, proper training for the end-user's operators in the use of the Software;

6.5.2 prompt receipt, analysis and reporting of reported faults in the operation of the Software using documentation standards as laid down by Caliach;

6.5.3 prompt replacement of the master copy of any corrupted or damaged Software (such replacement being obtained from Caliach); and

6.5.4 technical information and advice on the use of the Software reflecting a full understanding by the Distributor of the functionality of the Software as described in the published reference book.

6.6 Caliach shall provide back-up support for duly-licensed End-users of the Software at the request of the Distributor at no charge in any case where that back-up support relates solely to the correction of any faults, defects or bugs affecting the Software but in every other case charges shall be at Caliach's published end-user UK prices.

6.7 The Distributor shall not provide any Software support facilities to any non-licensed End-user or to an End-user known to the Distributor to be in breach of any terms of the Software License previously granted to it. The Distributor shall take all appropriate precautions to establish in each case that anyone requesting Software support is a duly-licensed End-user including (but without limitation) obtaining details of the name and address of the party requesting support, the Software serial number and site location. If in any case it seems that the party requesting support may not be a duly-licensed End-user, the Distributor shall immediately report this fact to Caliach together with all relevant details and the parties hereto shall mutually co-operate with a view to investigating immediately any possible copyright infringement that may have occurred.

7. Financial

7.1 Except in any case where Caliach has agreed with the Distributor extended credit terms, the Distributor shall pay all sums due to Caliach in respect of Software supplied by Caliach within thirty days of the date of invoice.

7.2 All payments due to Caliach from the Distributor under this Agreement will be invoiced and shall be paid in £sterling or US$ (at Caliach's discretion) to a bank and account nominated by Caliach from time to time. Where payment is made in US$, the current Lloyds Bank plc's sell rate will apply [+ or - 2%]. If Caliach agrees to accept payment in a currency other than £sterling or US$, full payment will only be deemed to have been made when foreign currency funds received from the Distributor, following exchange into £sterling or US$ (as Caliach decides) and taking into account all bank charges and fees, equal the £sterling or US$ value (as the case may be) of fees invoiced to the Distributor.

7.3 In addition to any disapplication of discount on payments more than thirty days overdue, all overdue payments shall bear interest (both before and after judgment) at the rate of 4% per annum over Lloyds Bank plc's base rate from time to time calculated on monthly rests from the due date for payment until the date of actual payment in cleared funds.

7.4 Caliach may agree with the Distributor from time to time a credit limit and/or extended credit terms. In this respect, all monies due to Caliach by the Distributor and outstanding at any one time in respect of any obligation and whether under this Agreement or not shall be taken into account in calculating whether or not the Distributor's credit limit has been exceeded. Caliach may from time to time at its sole discretion change the Distributor's credit limit after giving not less than seven days' written notice to the Distributor.

7.5 Notwithstanding the foregoing Caliach may in its sole discretion invoice any End-users directly for any license fees payable in respect of Software supplied by or on behalf of the Distributor if the Distributor has failed to collect such monies from the End-user or is otherwise in default under this Agreement. If Caliach invoices any End-user directly any obligations of the Distributor to that End-user or to Caliach in respect of that End-user in connection with the subject matter of that invoice shall cease upon Caliach receiving payment in full in respect of such invoice.

8. Enhancements/Modifications

8.1 Caliach will maintain on its web site during the term of this Agreement details of all enhancements, upgrades and modifications of the Software. Unless the circumstances are exceptional, not less than one month's notice of any change in Software will be given by Caliach.

8.2 Where an enhanced or modified Software item is not designated by Caliach as a separate Software item, that enhanced/modified Software item shall be passed on without delay and without charge by the Distributor to all existing End-users then currently registered for support and no fee will be payable in respect thereof to Caliach. Under no circumstances shall that enhanced/modified Software item be passed on to End-users not registered for support.

8.3 Caliach shall send to the Distributor a pack of program upgrade disks and supporting documentation from time to time released by Caliach for each site notified to be a subscriber to telephone and maintenance software support. The Distributor is strictly prohibited from supplying copies of upgrades to End-users that are not current subscribers to telephone and maintenance software support and have not been notified to Caliach as such.

8.4 Caliach reserves the right to introduce on not less than one month's notice any substitute Software which will fulfil the same function as that which it replaces.

9. Warranty

9.1 Caliach does not warrant that the Software will be error-free but if a copy of the Software is demonstrated to Caliach within ninety days from the date of delivery to the End-user by the Distributor to contain an error or malfunction, Caliach will use all reasonable endeavours to correct such error or malfunction or (at its option) replace such copy of the Software free of charge provided that:-

9.1.1 the Software has been used at all times properly and in accordance with the specification and system requirements and any other instructions for use; and

9.1.2 no alteration, modification or addition has been made to the Software without Caliach's prior written consent; and

9.1.3 the alleged error or malfunction has been notified to Caliach within the warranty period specified above; and

9.1.4 the End-user was duly-licensed to use the Software; and

9.1.5 the alleged error or malfunction is a genuine bug in the Software and has not arisen through the Software being used in conjunction with other non-specified systems.

9.2 Each claim of the Distributor under this warranty shall be sent by E-mail but confirmed in writing to Caliach in a form stipulated by Caliach specifying the nature of the fault or defect and identifying the End-user. Upon receipt of such claim, Caliach or its agents or representatives shall have the right to test or to inspect the Software at its then location, to contact the End-user direct regarding the alleged defect or malfunction and/or to have the Software despatched to a point designated by Caliach or returned to Caliach carriage pre-paid.

9.3 Any Software replaced or corrected under warranty shall be sent by Caliach to the Distributor carriage pre-paid.

9.4 EXCEPT AS OTHERWISE PROVIDED IN THIS CLAUSE AND EXCEPT TO THE EXTENT THAT STATUTE PROVIDES THAT LIABILITY MAY NOT LAWFULLY BE EXCLUDED IN AN AGREEMENT OF THIS NATURE AND BETWEEN THE RESPECTIVE PARTIES HERETO, ANY STATEMENT, CONDITION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE QUALITY, MERCHANTABILITY, OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SOFTWARE IS HEREBY EXCLUDED AND CALIACH SHALL NOT BE LIABLE TO THE DISTRIBUTOR OR TO ANY OTHER PERSON FOR LOSS OR DAMAGE (WHETHER DIRECT OR CONSEQUENTIAL) ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE SOFTWARE OR ANY MODIFICATION, VARIATION OR ENHANCEMENT THEREOF, AND ANY DOCUMENTATION, MANUAL OR TRAINING RELATING THERETO. THE FINANCIAL OBLIGATIONS OF CALIACH HEREUNDER SHALL BE LIMITED TO REPLACING ANY DEFECTIVE SOFTWARE.

9.5 The Distributor shall incorporate in its terms of sale to End-users such provisions as effectively limit Caliach's warranty liability as provided in this Clause.

10. Copyright, trade marks and other intellectual property rights

10.1 The Distributor acknowledges that any and all of the copyright, trade marks and other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto and all language translations of the same by whomsoever made are and shall remain the property of Caliach and the Distributor shall not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership thereof by Caliach.

10.2 The Distributor also acknowledges that such copyright, trade marks and other rights belonging to Caliach may only be used by the Distributor with the consent of Caliach and during the term of this Agreement. Upon expiry or termination hereof the Distributor shall forthwith discontinue such use, without any right of compensation for such discontinuation, provided however that the Distributor may continue to use any trade marks relating to the Software and support for a period following expiry or termination hereof for the purpose and to the extent only of continuing the support of Software Licenses required to be provided by the Distributor hereunder unless Caliach shall advise the Distributor that such right has been revoked.

10.3 The Distributor shall not modify, amend, add to or in any way alter the Software without Caliach's consent nor will the Distributor incorporate or purport to permit the incorporation of the whole or any part of the Software in any other product or program that may be developed by or dealt in by the Distributor or any third party;

10.4 The Distributor shall not during or after the expiry or termination of this Agreement, without the prior written consent of Caliach, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by Caliach.

11. Confidential information

11.1 Caliach has imparted and may from time to time impart to the Distributor certain confidential information relating to the Software, successor or enhanced software or other software or marketing or support thereof (including specifications therefore) and the Distributor may otherwise obtain confidential information concerning the business and affairs of Caliach and its customers pursuant to this Agreement. The Distributor hereby agrees that it will use such confidential information solely for the purposes of this Agreement and that it shall not itself use or otherwise disclose, whether directly or indirectly, to any third party such information other than as required to carry out the purposes of this Agreement. In the event of and prior to such disclosure, the Distributor will obtain from such third parties duly binding agreements to maintain in confidence the information to be disclosed to the same extent at least as the Distributor is so bound hereunder.

11.2 The Distributor further agrees that upon expiry or termination of this Agreement it shall not itself or through any subsidiary or agent or otherwise, sell, license, sub-license, market, distribute or otherwise deal with any of the Software (in whole or in part) except to the extent permitted by the applicable law or develop any software or have any software developed through use of any confidential information supplied to it by Caliach, or in any other way obtained by the Distributor pursuant to this Agreement.

11.3 The foregoing provisions shall not prevent the disclosure or use by the Distributor of any information which is or hereafter, through no fault of the Distributor, becomes public knowledge or to the extent permitted by law.

12. Termination

12.1 Notwithstanding any provisions herein contained this Agreement may be terminated forthwith by Caliach if the Distributor:-

12.1.1 is at any time in default under this Agreement and fails to remedy such default (if capable of remedy) within thirty (30) days from receipt of notice in writing from Caliach specifying such default;

12.1.2 presents or has a petition presented by a creditor for its winding up or enters into any liquidation (other than for the purpose of reconstruction or amalgamation), calls any meeting of its creditors, has a receiver of all or any of its undertakings or assets appointed, is deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts, or ceases to carry on business.

12.3 Caliach shall also have the right to revoke immediately the Distributor's license hereunder and all other rights granted by this Agreement in the event that Caliach in good faith but at its absolute discretion determines that the Distributor is incapable of providing appropriate levels of Software support to End-users.

12.4 Upon expiry or termination (for whatever reason) of this Agreement, the Distributor shall return or destroy (as Caliach shall instruct) no later than fourteen (14) days thereafter, all copies of the Software, documentation, technical information and any other data supplied to the Distributor during the continuance of this Agreement and all and any copies made of the whole or any part of the same and the Distributor shall furnish Caliach with a certificate, certifying that the same has been done, except with respect to supporting software, information and data which Caliach deems is necessary to enable the Distributor to continue to support the Software beyond the date of expiry or termination where Caliach permits/requires the Distributor so to do.

12.5 The expiry or termination of this Agreement shall be without prejudice to the respective rights of the parties accrued up to the date of such expiry or termination.

13. Force majeure

13.1 Neither party shall be under any liability to the other party in any way whatsoever for destruction, damage, delay or any other matters of any nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; the unavailability of deliveries, supplies, software, disks or other media or the requisitioning or other act or order by any government department, council or other constituted body.

13.2 If a party hereto claims to affected by force majeure at any time, it shall immediately notify the other party of the nature and extent thereof and if the force majeure in question prevails for a continuous period of in excess of three months, the parties shall enter into bona fide discussions with a view to alleviating the effects thereof or to agreeing alternative arrangements as may be fair and reasonable in the circumstances.

14. Relationship of the Distributor to Caliach

It is agreed that the Distributor is not the agent or representative of Caliach and has no authority or power to bind or contract in the name of or to create any liability against Caliach in any way or for any purpose. The Distributor is an independent contractor with non-exclusive rights confirmed by this Agreement to market, distribute and support Software licenses on its own accord and responsibility.

15. Waiver

Failure or neglect by Caliach to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Caliach's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice Caliach's rights to take subsequent action.

16. Assignment/sub-contracting

This Agreement shall not be assigned by the Distributor whether voluntarily or involuntarily or by operation of law, in whole or in part, to any party without the prior written consent of Caliach. No such assignment by the Distributor howsoever occurring shall relieve the Distributor of its obligations hereunder.

17. Notices

17.1 Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation shall (unless otherwise provided) be in writing and in the English language and shall be sent by facsimile, confirmed by a copy sent by first class post (if within the European Union) or by first class airmail if from elsewhere in the world. Such notice shall be deemed to be duly served on the next day after receipt of confirmation of transmission. The respective addresses are as follows:-

Caliach:- Address: Cedar House, Vine Lane, Hillingdon, Middlesex, UB10 0BX, England

Email sales@caliach.com

Fax no: +44 1895 230233

The Distributor:- Address <<Distributor's trading address>>

Email <<Email Address>>

Fax no: <<Fax Number>>

or to such other address or facsimile number as may from time to time be designated by notice hereunder, to take effect seven days after such notice is given.

18. Publicity/announcements

18.1 Subject always to the provisions of Clause 18.2, except as the parties may agree in a joint press release no announcement of the terms of this Agreement or of any matters ancillary thereto shall be made by either party or any party's agent without the prior written consent of the other party.

18.2 The Distributor shall not object to Caliach making reference in its publicity material to its association with the Distributor as evidenced by this Agreement provided always that the terms of every such reference shall be approved by the Distributor, such approval not to be unreasonably withheld or delayed.

19. Agreement

This Agreement supersedes any arrangements, understandings, promises or agreements relating distribution of Software licences made or existing between the parties hereto (and including in some cases Christopher Peter Ross) prior to or simultaneously with this Agreement and the Distributor hereby expressly releases Caliach and Christopher Peter Ross from any previous obligations in this respect. This Agreement constitutes the entire understanding between the parties and, except as otherwise provided herein, no addition, amendment to or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of both parties.

20. Severability

In the event that any or any part of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid and enforceable to the fullest extent permitted by law.

21. Law and language

21.1 The parties hereby agree that this Agreement and the provisions hereof shall be construed in accordance with English Law and that they submit to the exclusive jurisdiction of the English Courts.

21.2 The original English language version of this Agreement shall prevail over any translation.

AS WITNESS

the respective signatures of those persons duly authorised on behalf of the parties

Duly signed by

CHRISTOPHER PETER ROSS

authorised on behalf of

CALIACH LIMITED

 

Duly signed by

<<Officer signing the Agreement>>

authorised on behalf of

<<Full company name of the distributor>>


Distributor Details Sheet

Distributor   <<Full company name of the distributor>>
Agreement Effective Date   <<Date Agreement is effective>>
Officer signing the Agreement for the Distributor   <<Officer signing the Agreement>>
Distributor's Address 17.1 <<Distributor's trading address>>
Distributor's Country   <<Distributor's country of registration>>
Distributor's Email for correspondence 17.1 <<Email Address>>
Distributor's Fax for correspondence 17.1 <<Fax Number>>
Appointment Fee charged to the Distributor 2.1, 2.2, 4.1 <<Appointment Fee>>
Credit Limit 5.3, 7.1, 7.4 <<Credit Limit>>
Software sales discount off Caliach's published end-user UK prices for the first 8 site licenses sold 5.2 <<Discount on software sales 1-8 sites>>
Software sales discount off Caliach's published end-user UK prices for 9 to 15 site licenses sold 5.2 <<Discount on software sales 9-15 sites>>
Software sales discount off Caliach's published end-user UK prices for 16 onward site licenses sold 5.2 <<Discount on software sales 16 or more sites>>
Number of site license sales credited on the effective date of the Agreement   <<Sites credited on effective date>>
Software support discount off Caliach's published end-user UK prices for software and support rates applying to the site 5.2, 6.2 <<Discount on support sales>>
CaliachMRP License serial number 3.2 <<CaliachMRP License Serial Number>>
Omnis 7 Software serial numbers   <<Omnis 7 Serial Numbers>>
ftp.caliach.com secure areas User Name   <<ftp site user name>>
ftp.caliach.com secure areas Password   <<ftp site user password>>