LICENCE AND SALE AGREEMENT
Made and entered into by and between: (hereinafter the “seller/licensor”)
AND
(hereinafter the “purchaser/licensee”)
PREAMBLE:
WHEREAS the parties had entered into verbal negotiations for purchase by the purchaser/licensee of information technology (“IT”) infrastructure from the seller/licensor and use by the purchaser/licensee of the seller's/licensor's existing business concept of an internet cafe/shop AND WHEREAS upon careful consideration and screening the seller/licensor has agreed to enter into a legally defined relationship with the purchaser/licensee NOW THEREFORE it is agreed to between the parties as follows.
1. INTERPRETATION:
1.1. In this agreement the following words shall have the meanings assigned to them hereunder: “internet cafe/shop” means an establishment in a shopping mall or business complex which allows the general public access to computers for typing and/or to use the internet to do,inter alia: on-line shopping, research, send and receive e-mails; utilize printing, photocopying and faxing facilities at a fixed/variable fee AND to purchase computer accessories if it is sold there. “seller's/licensor's intellectual property” means the seller's/licensor's business know-how, administration processes systems and documents, including its confidential operations manual and computer programs,templates and related software created by the seller/licensor itself and/or authorized to the seller/licensor for sub-letting. “licence” means written authority or permission through this agreement itself to use the seller's/licensor's intellectual property. “business premises” means a self-sufficient distinct physical structure in a shopping complex or mall used for the purposes of conducting business as an internet shop/cafe. “install” for hardware means to assemble, set, place, stabilize and connect component parts together in its usual and expected functional position. For software it means downloading from a removable medium like a CD onto the computer unit's hard-drive to make the software operational. “configure” means to lawfully manipulate software and/or hardware to enable the computer and system to function according to specific needs. “network” means to link each computer unit to each other and a central processing unit where monitoring and control is exercised over all other computers forming part of that group. This involves utilizing additional equipment (a specialized electronic unit/box being a modem and switch) and connecting tools/items (cables, plugs and ports). “deliver” means to physically hand over personally or through another authorised person. “finance” means hard cash in the physical possession or a credit bank balance in the account of the
purchaser/licensee for the purposes of this agreement. 1.2. Headings of clauses shall be deemed to have been included for purpose of convenience only and shall not affect the interpretation of the agreement. 1.3. Unless inconsistent with the context, words relating to any gender shall include any other gender, the singular shall include the plural, words relating to natural persons shall include persons having corporate status by statute or common law, and vice versa. 2. SUBJECT MATTER: The seller/licensor sells to the purchaser/licensee IT hardware , operating system and applications software, printer, photocopy/fax machine (all of which are listed in detail below with full specifications) AND issues a licence to use its (seller's/licensor's) confidential operating procedures and manual, its business administration systems and its own intellectual property relating thereto (hereinafter collectively referred to as the “sellers/licensor's intellectual property”).
Brand Compone nt Chassis Motherboard Keyboard Optical Mouse Processor 1.8 celeron Processor core 2 duo 2GHZ DVD Writer 1 GB DDR2 800 RAM 2 GB DDR2 800 RAM Printer SCX-4521 B/W Laser Print/Scan/Copy/Fax Printer CLP 310 Colour Laser Lifetime Lifetime 1 1 Warranty(ye ars) 1 3 1 1 1 1 1 Quantity 5 5 5 5 4 1 1 4 1 1 1
3. LICENCE CONDITIONS: 3.1. A licence is issued under this agreement to the purchaser/licensee for an indefinite period terminating upon the death or closing or ceasing to trade as an internet cafe/shop by the purchaser/licensee in PLACE. 3.2. The purchaser/licensee is permitted to use the seller's/licensor's intellectual property solely for operating an internet cafe/shop and sale of IT accessories. 3.3.1. The purchaser/licensee shall only install and use the seller's/licensor's intellectual property on and for equipment/hardware purchased from the seller/licensor. 3.3.2. This licence does not extend to hardware/equipment purchased elsewhere, which is hereby strictly prohibited. Purchase/use of hardware/equipment other than that purchased from the seller/licensor shall result in the immediate termination of this licence agreement. 3.3.3. To this extent it is specifically agreed herein that the seller/licensor shall have the right of unrestricted access to the purchaser's/licensee's business premises during business hours,
wherever this might be, to conduct inspections on hardware, software and intellectual property being used by the purchaser/licensee to conduct business. 3.4.1. The purchaser/licensee is authorized to conduct the business of an internet cafe/shop through the use of the seller's/licensor's supplied hardware, software and intellectual property in the geographical region of PLACE only. 3.4.2. The purchaser/licensee will be entitled to a sole and exclusive licence to conduct business as an internet cafe owner as aforementioned in the event of the purchaser/licensee acquiring or setting up a minimum of XXXXXXXX(5/10?) internet cafes/shops in PLACE. 3.5. The purchaser/licensee is granted an option to acquire or set up more internet shops/cafes in PLACE on no less favourable terms and conditions as contained in this agreement. 4. ADDITIONAL BENEFITS: 4.1. The seller/licensor will set up, install, configure and network the hardware and software supplied. The cost of the networking equipment and cabling utilized is incorporated in the purchase price. 4.2. The seller/licensor agrees to provide training to the purchaser/licensee or his lawful delegate/s during the first month after set-up of the internet cafe/shop. 4.3. The training will comprise of step-by-step explanations of the confidential operating procedures manual and the giving of other related verbal instructions. 4.4. The purchaser/licensee will also be entitled to remote assistance via telephone, e-mail and internet communications. 4.5. After the first month and completion of training the purchaser/licensee may purchase support services from the seller/licensor in terms of its service level agreements at a preferential rate or discount negotiated with the seller/licensor. 4.6. The purchaser/licensor will be entitled to purchase IT accessories from the seller/licensor at a discount or preferential rate negotiated between themselves subject to, inter alia, availability from supplier, quantity or volume and cost of acquisition by seller/licensor. 5. PRICE: The consolidated purchase price of selling, installing, configuring and networking the IT equipment, hardware and software to the purchaser/licensee AND permitting the use of the seller's/licensor's intellectual property together with the training associated therewith is AMOUNT. 6. PAYMENT: 6.1. The purchase price is payable in cash or bank guaranteed cheque or electronic fund transfer without compensation, deduction or set-off. 6.2. The purchaser/licensee will pay to the seller/licensor a deposit of AMOUNT upon signature hereof/ prior to the provision of the equipment and installation thereof at the purchaser's/licensee's business premises. 6.3. The balance of the purchase price shall be paid by the purchaser/licensee to the seller/licensor
immediately (but not later than seven (7) days) after completion of installation and set-up of the purchaser's/licensee's internet shop/cafe. 7. DELIVERY: 7.1. The seller/licensor undertakes to deliver or make available for delivery all mentioned items sold and licensed to the purchaser/licensee as soon as / within seven (7) days of the purchaser/licensee certifying in writing through a banker or other accredited and reputable financier that he/she is in possession of funds/finance to fulfil this contract. This contract will lapse or automatically become terminated in the event of the purchaser/licensee failing to secure funding/finance and fail/refuse to provide the above-mentioned guarantees. 7.2. The risks and benefits in and to the sold items mentioned in this agreement shall pass from the seller/licensor to the purchaser/licensee on the date of payment of the full purchase price, effectively the date of payment of the outstanding balance. 8. SELLER'S/LICENSOR'S OBLIGATIONS: In addition to those imposed by operation of law: 1. Guarantee the lawful title (ownership/possession), authenticity, quality and durability of the IT equipment and hardware sold to the purchaser/licensee. The warranty provided to the seller/licensor by the manufacturer/supplier is applicable vis-a-vis the seller/licensor and the purchaser/licensee. 2. Guarantee lawful title (ownership/possession) of software and intellectual property supplied to the purchaser/licensee. 3. To deliver, install, configure and network the products sold on the terms and conditions agreed to herein. 4. To provide the training on the terms and conditions as referred to in this agreement. 5. To comply with all its obligations agreed to elsewhere in this agreement. 9. PURCHASER'S/LICENSEE'S OBLIGATIONS: In addition to those imposed by operation of law: 1. To pay the full purchase price as stipulated in this agreement. 2. To contract with a suitable telecommunications provider for the provision of a line/s for use of internet, telephone and fax facilities with the associated numbers/codes. The purchaser/licensee shall be solely responsible for the costs of such installation and continued maintenance. 3. To pay its/his/her telephone (incorporating internet and fax usage) accounts promptly without delay and without recourse to the seller/licensor. 4. To maintain confidentiality on, to and over the seller's/licensor's intellectual property and not to disclose the same to third parties. 5. To uphold and maintain the reputation, brand and image of the seller/licensor in the course of running his/her/its business operations and not to compete with the seller/licensor by purchasing IT equipment and using the the seller's/licensor's licensed intellectual property elsewhere and otherwise than agreed to herein. 6. To comply with all its obligations specifically mentioned elsewhere in this agreement. 7. To warrant that he/she/it has disclosed all personal information regarding himself/herself/itself, which is reasonably likely to be material to the purchase of the items sold and use of the seller's/licensor's intellectual property.
10. SUSPENSIVE CONDITIONS
The operation of this agreement shall commence upon signature hereof by both parties and will automatically terminate on the happening of one or more of the following events: 1. failure/refusal by the purchaser/licensee to sign a confidentiality and non-disclosure agreement; 2. failure by the purchaser/licensee to secure finance and provide the required guarantees; 3. failure by the purchaser/licensee to secure adequate premises; 4. failure/refusal by the purchaser/licensee to facilitate and complete the installation of telephone lines for set-up of the internet shop/cafe. 11. GENERAL UNDERTAKINGS The parties jointly undertake to do all such things, perform all such acts, take all such steps and procure the doings of all such things, as may be necessary to give effect to the terms and conditions of this agreement. 12. BREACH 12.1. In the event of either party committing any breach of the terms and conditions of this agreement and failing to remedy such breach within 7 (seven) days of receipt of written notice calling upon it to do so, then the party giving notice shall be entitled; a. If it is the purchaser/licensee either to cancel this agreement and claim full restitution or to claim specific performance without prejudice to a right to claim damages; b. If it is the seller/licensor to cancel the agreement retake possession of the goods sold and intellectual property and retain all payments made as pre-estimated and liquidated damages alternatively, to claim immediate payment of the full balance owing at the time of such default together with all interest in terms of this agreement. 12.2. In the event of the sale being cancelled by reason of any material non-disclosure or default on the part of the purchaser/licensee in not performing or carrying out any of the requirements necessary to give effect to this agreement, then the purchaser/licensee shall be liable to the seller/licensor, in addition to any claims for damages which might arise, for all amounts which the seller/licensor has paid or is obliged to pay in respect of the sale and issue of the license.
13. JURISDICTION
The parties hereby consent to the jurisdiction of the appropriate Court in regard to any action or proceedings based on or arising from this sale agreement, notwithstanding that the amount claimed would otherwise exceed the jurisdiction of the said Court, if any.
14. ONLY AGREEMENT
This agreement shall be the whole and only agreement between the parties and cancels any prior or verbal agreements. Any representations made by either party, shall not affect it unless recorded in writing herein.
15. NOTICES AND DOMICILIA
15.1. All notices by one party to the other shall be given in writing by prepaid registered post, telegram, fax or delivered by hand to: The Seller/Licensor at: The Purchaser/Licensee at: Which addresses the parties choose as their 'domicilia citandi et executandi' for all purposes. 15.2. The parties shall be entitled to change the address aforesaid, provided that he shall give the other party 14 (fourteen) days notice in writing of his intention and that any such new address shall be situated within the Republic of South Africa.
16. WAIVERS AND INDULGENCES
No relaxation, extension of time, latitude or indulgence which any party may show, grant or allow to another shall in any way constitute a waiver of any of his/her/its rights in terms of this agreement and the party granting such waiver or indulgence shall not thereby be prejudiced or stopped from exercising any of his/her/its rights against the other which may have then already arisen or which may arise thereafter. THUS DONE AND SIGNED AT ON THIS DAY OF 2009.
_____________________________ For and on behalf of Seller/Licensor Designation:
___________________________ For and on behalf of Purchaser/Licensee Designation:
As witnesses: 1.__________________ 2.__________________
As witnesses: 1.______________ 2.______________
Confidentiality Agreement
Entered into by and between: (hereinafter the “Seller/licensor”) and (“the Purchaser/Licensee”) 1. 2. This agreement comes into effect on the date when the parties sign this agreement. The Seller/Licensor and the Purchaser/Licensee have/are about to enter into a contract whereby the Purchaser/Licensee wishes to purchase Information Technology equipment, hardware and software, and to use the Seller's/Licensor's intellectual property and business know-how as an internet cafe/shop operator. The Purchaser/Licensee acknowledges: that during negotiations, it had become privy to, had access to and/or acquired information of the business of the Seller/Licensor, which includes but is not limited to the intellectual property, the know-how, procedures, business system, written material, logo, trade secrets and confidential information (hereinafter referred to as “the confidential information”); and undertakes to keep secret and confidential any and all the confidential information which it may acquire or comes to its knowledge, either directly or indirectly, howsoever arising, during the negotiation period or any time thereafter. and undertakes not to exhibit or reproduce any of the confidential information to any person, corporation or any other legal entity, directly or indirectly; and undertakes to return forthwith any material or confidential information in its possession to the Seller/Licensor, should it be requested to do so; that this agreement is necessary to protect the rights of the Seller/Licensor. In the event that any dispute arises in terms of this agreement or any dispute between the parties, then they agree that the High Court of South Africa (Durban and Coast Local Division) shall have jurisdiction to determine such dispute. The domicilium address for purposes of this clause is reflected on the principal agreement. This agreement constitutes the entire agreement between the parties and no variation shall be of any legal force or effect unless reduced to writing and signed by and on behalf of the parties.
3. 3.1
3.2
3.3 3.4 3.5 4.
5.
Signed at As witnesses:
on this
day of
2009.
1. ____________________ 2. ____________________ ______________________________ For and on behalf of the seller being duly authorised hereto
Signed at ________________ on this _________ day of ______________ 2009. As witnesses: 1. 2. ____________________ ____________________ __________________________ For and on behalf of the purchaser being duly authorised hereto