Agreement - BMW (South Africa) Pty Ltd. and Navigation Technologies BV
AGREEMENT
made and entered into by and between :
BMW (SOUTH AFRICA) (PROPRIETARY) LIMITED
Registration Number 60/00196/07
(herein represented by.......................
in his capacity as..........................)
(hereinafter referred to as "BMW")
and
NAVIGATION TECHNOLOGIES B.V.
Registration Number ...........................
(herein represented by......................
in his capacity as...............................)
(hereinafter referred to as "NAVTECH")
WHEREAS BMW wishes to introduce the BMW navigation system into the South African
market;
AND WHEREAS NAVTECH is a producer and supplier of navigable databases and
possesses systems and expertise to create navigable databases for use in vehicle
navigation systems;
AND WHEREAS BMW desires to obtain a Navigable Database for South Africa for use
in the BMW navigation system in South Africa and has requested NAVTECH to create
an initial Database.;
AND WHEREAS BMW is prepared to take the commercial risk to the sum of the
amounts contemplated herein for development of the Database, where such an
investment by BMW, among other things, would make NAVTECH agreeable to create a
Database with commercial value which, through its intended licensing to third
parties, would benefit BMW through the recovery of BMW's investment and would
benefit NAVTECH by potentially creating a viable business for licensing the
Database in South Africa;
AND WHEREAS NAVTECH is prepared to divert resources from other projects and
thereby forego other known revenue opportunities, as well as apply its
expertise, know how, trade secrets and other valuable intellectual property to
create and maintain such a Navigable Database;
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NOW THEREFORE IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 The headings to the clauses of this agreement are for reference
purposes only and shall not aid in the interpretation of the clauses
to which they relate.
1.2 Unless a contrary intention clearly appears, words importing any one
gender shall include the other gender, the singular shall include the
plural and vice versa.
1.3 DEFINITIONS:
1.3.1 "BMW navigation means an integrated hardware
system": component available on BMW Group
vehicles capable of assisting the
owner thereof in an interactive
fashion to navigate from a point of
departure to a desired destination
using inter alia Products.
1.3.2 "Navigable Database": means a cartographic database
or "Database" according to the Specification of
Annexure "A", which contains
sufficiently accurate and complete
information to enable inter alia
the BMW navigation system to
function within South Africa.
1.3.3 "GDF": means Geographical Data Format, a
specific data exchange /
interchange format and transfer
file specification for digital
roadway and topological map
databases known in the navigable
database industry.
1.3.4 "CDF": means CARIN Data Format, a database
format which enables Databases to
be read by the BMW navigation
system installed in BMW Group
vehicles.
1.3.5 "Development means, in relation to a Database,
Schedule": the development schedule for such
Database as determined in
accordance with the provisions of
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clauses 3.1.1, 3.2.1 and 3.3.1.
1.3.6 "Specification": means the specifications in respect
of the Database as detailed in
Annexure "A".
1.3.7 "Acceptance Testing" means the procedure as contemplated
in Annexure "C" in respect of
testing a Database Master for
compliance with the Specification.
1.3.8 "Database Master": means a compiled version of a
Database in the CDF format.
1.3.9 "Approved Database" means a Database Master approved by
BMW as contemplated in clause 3.4.
1.3.10 "Compiling": means the process of changing the
format in which data is
represented.
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1.3.11 "DC Coverage": means Detailed City Coverage as
defined by NAVTECH, wherein (i) the
database for the covered area
contains essentially all roads that
can be used by private and public
vehicles, (ii) all categories of
POI's in the SPIL are included (to
the extent applicable to South
Africa), together with certain
cartographic features.
Notwithstanding the foregoing,
NAVTECH reserves the right to
modify the specification for DC
Coverage, including, without
limitation, adding, deleting and
recategorizing data elements. NT
shall provide BMW with at least six
months prior written notice of any
modifications of the specification
for DC Coverage, but only to the
extent that it is foreseeable by
NAVTECH that such modifications
will have a materially adverse
effect on BMW's use of the Database
and/or Products. Where such
modifications affect the Special
Features as set forth in clause 1.5
of Annexure "A", such modifications
may only be effected with BMW's
prior written approval.
1.3.12 "POI" means a Point of Interest (a place
of business, touristic or of other
interest to a driver).
1.3.13 "SPIL" means NAVTECH's Standard POI
Inclusion List, a list of
approximately 40 POI categories
that are included within the
specification for DC Coverage and
within NAVTECH's global DC coverage
specifications.
1.3.14 "Product/s" mean a copy or copies of an
Approved Database stored on CD-ROM,
or any other media as reasonably
specified by BMW from time to time,
for use with a BMW navigation
system.
1.3.15 "End-User" means an owner of a BMW
Group vehicle who receives or uses
Products for personal use in a
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BMW navigation system with no right
to sublicense the Products.
1.3.16 "FOB" means "Free on Board" as defined by
INCOTERM, 1990.
1.3.17 "Third party navigation
system vendor" means an automobile company or
vendor other than BMW that supplies
in-vehicle navigation systems in
South Africa.
1.3.18 "Maximum Amount" means [redacted]
2. COMMENCEMENT DATE AND DURATION
2.1 Notwithstanding the date of signature, this agreement shall commence
on the 1st day of June, 1999, and shall remain of force and in effect
up to and including the date of termination in accordance with the
provisions hereof.
2.2 The termination of this contract shall terminate or cancel all
incomplete assignments or tasks in terms of it, unless the parties
agree in writing to the contrary at the time of the termination.
2.3
2.3.1 It is a condition precedent of this agreement coming into
force and effect that NAVTECH concludes written agreements,
the content of which shall be approved by BMW prior to
signature of same and a final signed copy or copies of which
shall be supplied to BMW for record purposes, with the
undermentioned party:
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2.3.1.1 [redacted]
2.3.1.2 In the event that the agreement identified in
clause 2.3.1.1 above is not concluded within 30
days from the date of signature hereof this
agreement shall automatically terminate, shall be
of no further force and effect and neither party
shall have any obligation to the other party
arising out of this agreement, save and except for
the obligations which survive termination of the
agreement.
2.3.2 [redacted]
3. NATURE AND SCOPE OF AGREEMENT
3.1 PHASE 1 DATABASE:
3.1.1 NAVTECH shall develop the Phase 1 Database in accordance
with the Specification as defined in 1.3.6 above, and the
Development Schedule for Phase 1 as detailed in Annexure "B"
hereto.
3.1.2 NAVTECH shall supply to BMW three Database Masters of the
Phase 1 Database, contained on one or more CD-ROMs, upon
completion of
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development of same; the Database Masters supplied shall be
in the CDF format.
3.1.3 It is recorded that Mr. Wilfried Steins of the Development
Department at BMW AG in Munich, Germany shall act as BMW's
representative and that all Database Masters shall be
supplied to his attention, or to such other representative as
may be identified by BMW in writing from time to time.
3.1.4 The Phase 1 Database shall be tested, corrected and approved
in accordance with the procedure contemplated in clause 3.4
below.
3.1.5 Payment in respect of the development of Phase 1 Database
shall be made by BMW to NAVTECH on the basis recorded in
Annexure "B" hereto.
3.2 PHASE 2 DATABASE:
3.2.1 NAVTECH shall develop the Phase 2 Database in accordance with
the Specification as defined in 1.3.6 above, and the
Development Schedule for Phase 2 as detailed in Annexure "B"
hereto.
3.2.2 NAVTECH shall supply to BMW three Database Masters of the
Phase 2 Database, contained on one or more CD-ROMs, upon
completion of development of same; the Database Masters
supplied shall be in the CDF format.
3.2.3 Database Masters shall be supplied to BMW's nominated
representative as recorded in clause 3.1.3 above.
3.2.4 The Phase 2 Database shall be tested, corrected and approved
in accordance with the procedure contemplated in clause 3.4
below.
3.2.5 Payment in respect of the development of Phase 2 Database
shall be made by BMW to NAVTECH on the basis recorded in
Annexure "B" hereto.
3.3 PHASE 3 DATABASE:
3.3.1 NAVTECH shall develop the Phase 3 Database in accordance with
the Specification as defined in 1.3.6 above, and the
Development Schedule for Phase 3 as detailed in Annexure "B"
hereto.
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3.3.2 NAVTECH shall supply to BMW three Database Masters of the
Phase 3 Database, contained on one or more CD-ROMs, upon
completion of development of same; the Database Masters
supplied shall be in the CDF format.
3.3.3 Database Masters shall be supplied to BMW's nominated
representative as recorded in clause 3.1.3 above.
3.3.4 The Phase 3 Database shall be tested, corrected and approved
in accordance with the procedure contemplated in clause 3.4
below.
3.3.5 Payment in respect of the development of Phase 3 Database
shall be made by BMW to NAVTECH on the basis recorded in
Annexure "B" hereto.
3.4 TESTING, CORRECTION AND APPROVAL OF DATABASES:
3.4.1 BMW shall have a period of 30 days from the date upon which
NAVTECH supplies the copy of the Database Master on CD-ROM in
the CDF format within which to test the Database in
accordance with the Acceptance Testing procedure contemplated
in Annexure "C" hereto ("the testing period") in order to
determine whether same meets the Specification.
3.4.2 By no later than the day immediately following the expiration
of the testing period BMW shall notify NAVTECH, in writing,
as to whether the Database Master is approved or,
alternatively, that the said Database Master fails to pass
the Acceptance Testing. In the latter circumstances BMW shall
document the detailed reasons why the Database does not pass
the Acceptance Testing and notify NAVTECH accordingly. Should
BMW fail to notify NAVTECH as contemplated herein BMW shall
be deemed to have approved the Database Master.
3.4.3 In the event of the Database Master failing to pass the
Acceptance Testing NAVTECH shall be afforded a period
[redacted] from its receipt of the detailed notice
contemplated in clause 3.4.2 within which to correct the
defects identified by BMW and to supply a corrected Database
to VDO for compilation. Alternatively, NAVTECH shall
demonstrate to BMW, within the above [redacted] period, a
corrective programme to overcome the defects within a period
approved by BMW, which approval shall not be unreasonably
withheld.
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3.4.4 Upon receipt of the corrected Database Master BMW shall have
a further period of 30 days within which to repeat the
Acceptance Testing contemplated in Annexure "C". Thereafter,
and by no later than the day following the expiration of the
further testing period referred to herein BMW shall notify
NAVTECH, in writing, as to whether the Database Master is
approved or, alternatively that the Database fails to pass
the Acceptance Testing. In the latter circumstances BMW shall
document the detailed reasons why the Database Master does
not pass the Acceptance Testing and notify NAVTECH
accordingly, and the provisions of 3.4.3 and this clause
3.4.4 shall apply, until the Database Master is approved.
Should BMW fail to notify NAVTECH as contemplated herein BMW
shall be deemed to have approved the Database Master.
[redacted]
3.4.5 Notwithstanding the foregoing of this Clause 3.4, a Database
Master shall not be deemed to have failed the Acceptance
Testing where a failure to meet the test set forth in
Annexure "C" is due to (i) software, information or items
other than the Database Master, including without limitation,
hardware and software of the BMW navigation system (including
route calculation and route guidance software), or (ii)
[redacted]
3.5 DATABASE UPDATING:
3.5.1 Following BMW's approval of the Phase 3 Database, NAVTECH
shall at BMW's request update the Database at a frequency of
[redacted]
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[redacted] shall commence immediately after the completion of
Phase 3 as set forth in Annexure "B", subject to:
3.5.1.1 BMW effecting payment of the Update Fees as
determined under clause 3.5.2 prior to NAVTECH's
commencing development of the updated Database;
and
3.5.1.2 [redacted]
3.5.1.3 NAVTECH's right to terminate this obligation on
[redacted] written notice to BMW as provided for
in clause 11.2 below.
3.5.2 [redacted]
3.5.3 BMW shall be entitled to test and approve each updated
Database in accordance with the Acceptance Testing procedure
contemplated in clause 3.4. In the event of BMW failing to
conduct such tests in respect of an update, BMW shall be
precluded from rejecting the update.
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3.6 SUPPLYING PRODUCTS:
3.6.1 NAVTECH shall supply Products to BMW in accordance with this
clause 3.6.
3.6.2
3.6.2.1 At any time following completion of Phase 1 and
during the term of this Agreement, BMW may order
Products from NAVTECH by issuing purchase orders
to NAVTECH as contemplated in clause 3.9.4.
3.6.2.2 PRODUCT FEES
3.6.2.2.1 Except as contemplated in clause 3.6.4
below, BMW shall pay NAVTECH [redacted].
3.6.2.2.2 [redacted]
3.6.2.2.3 [redacted]
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3.6.2.3 Except as contemplated in clause 3.6.4.1 below,
each order by BMW as contemplated in 3.6.2.1 above
shall be for a minimum of [redacted].
3.6.2.4 Subject to BMW's compliance with its obligations
under clause 3.6.3.2 below, NAVTECH shall ship
Products ordered by BMW as contemplated in 3.6.2.1
FOB NAVTECH's shipping point within thirty (30)
days after receipt of a purchase order. BMW shall
pay NAVTECH's freight, customs and other shipment
charges related only to the shipment of Products
to BMW.
3.6.2.5 NAVTECH shall invoice BMW on shipment of Products
in the form of a detailed invoice which shall
include, without limitation, a description of the
amount payable by BMW including and excluding tax
(tax invoice), supported by relevant
documentation. BMW shall effect payment to NAVTECH
within 30 days of receipt of the invoice
aforementioned.
3.6.2.6 Except where requested by BMW in writing, Products
supplied pursuant to BMW's purchase orders shall
contain the most recently Approved Database as at
the time of placing a purchase order.
3.6.2.7 [redacted]
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3.6.2.7.1 [redacted]
3.6.2.7.2 [redacted]
3.6.2.7.3 [redacted]
3.6.3
3.6.3.1 BMW reserves the right to approve the packaging
and user documentation for Products, including any
and all copyright notices, warnings, disclaimers
and other information as may be included on the
Products and on any packaging. Without limitation,
BMW shall have the right to require the BMW trade
name and trade mark to be displayed on Products,
packaging and user documentation.
3.6.3.2 BMW shall, in advance of any order for Products as
contemplated in clause 3.6.2 above, provide
NAVTECH with any and all artwork, film,
information and other items which BMW requires
NAVTECH to include on the Products and the
packaging and user documentation.
3.6.3.3 It is expressly agreed by the parties that all
packaging and user documentation for Products,
including any and all copyright notices, warnings,
disclaimers and other information as may be
included on the Products and on any packaging,
shall be the same as such packaging and user
documentation agreed to between NAVTECH and BMW AG
from time to time for products supplied by NAVTECH
to BMW AG for BMW Navigation Systems in Europe,
save for any specific information relating to the
Product version and/or coverage area of the data
contained on such Products. It is expressly
recorded that BMW acknowledges its obligation to
display a NAVTECH copyright notice on Products and
packaging; the display of such copyright notice
shall comply with BMW's Trade Mark and Corporate
Identity requirements.
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3.6.4 NAVTECH shall supply [redacted] to BMW as contemplated below
for a fee of [redacted].
The [redacted] shall be made up of the following:
3.6.4.1 [redacted] Products containing the Approved
Database of Phase 1 supplied on completion of
Phase 1;
3.6.4.2 [redacted] Products containing the Approved
Database of Phase 2 supplied on completion of
Phase 2; and
3.6.4.3 [redacted] Products containing the Approved
Database of Phase 3 supplied on completion of
Phase 3.
3.7 CREATING, COMPILING AND SUPPLYING DATABASES AND PRODUCTS:
3.7.1 [redacted]
3.7.1.1 [redacted]
3.7.1.2 [redacted]
3.7.1.3 [redacted]
3.7.2 [redacted]
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3.8 NAVTECH PROJECT MANAGER:
NAVTECH shall identify and appoint a Project Manager and ensure the
availability and involvement of such Project Manager in NAVTECH's
performance of its obligations under this Agreement.
3.9 PAYMENT AND ORDERING OBLIGATIONS
3.9.1 All payments made by BMW to NAVTECH under this agreement
shall be made by means of good funds or telegraphic transfer
of funds in U.S. Dollars to the following bank account:
[redacted]
3.9.2 BMW shall be responsible for, and this agreement shall be
contingent upon, BMW obtaining all necessary exchange control
and other requisite approvals to pay NAVTECH by way of funds
transferred from South Africa, as contemplated in clause
3.9.1.
3.9.3 BMW shall be responsible for and shall pay any and all fees,
currency conversion costs, withholdings, taxes, and other
costs or charges on such payments and transfers to NAVTECH,
exclusive of any income taxes calculated on NAVTECH'S net
income.
3.9.4 All orders and payments under this agreement shall be
governed by the provisions of the agreements concluded
between BMW AG and NAVTECH, as amended from time to time,
relating to inter alia Purchasing Terms and Conditions for
Production Material and Automobile Components.
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4. INTELLECTUAL PROPERTY RIGHTS, RIGHTS TO THE DATABASE AND PRODUCTS
All intellectual property rights, including copyrights, database rights,
patent rights and any other similar rights in any works, including but not
limited to Databases and Products, created as a result of or pursuant to
this agreement or otherwise, shall and hereby do vest in and belong to
NAVTECH.
5. BMW'S USE OF THE DATABASE AND PRODUCTS
5.1 In consideration for the monies being paid by BMW to NAVTECH pursuant
to this agreement NAVTECH hereby grants BMW a non-exclusive,
non-transferable, non-sublicensable license for the term of this
agreement to use the Database Masters created and supplied by NAVTECH
in Phases 1-3 for testing as contemplated in clause 3.4 and to test
and develop BMW navigation systems. BMW shall not reproduce, disclose,
publish, sell, license, transfer, distribute or otherwise reveal the
Database Masters or any portion thereof to any third party.
5.2 In consideration for the monies being paid by BMW to NAVTECH pursuant
to this agreement, and subject to BMW effecting payment to NAVTECH of
the additional fees for Products ordered, as contemplated in clause
3.6.2.2, as the case may be, NAVTECH hereby grants BMW a
non-exclusive, non-transferable, non-sublicensable license for the
term of this agreement to distribute Products supplied to BMW either
directly or indirectly through distributors and/or dealers to
End-Users.
5.3 Each Product distributed to an End-User as contemplated in clause 5.2
shall include End-User terms mutually agreed upon by the parties
which, among other things, restrict the End-User's use of the Product
to the BMW navigation system. BMW shall take all reasonable measures
to ensure that the End-Users, prior to or at the moment of entering
into an agreement for the license of the Products, and prior to any
use thereof, are made aware of and have a reasonable opportunity to
examine and accept such End-User terms. End-Users shall only be
entitled to possess and/or use the Products if they accept the
conditions of the End-User terms. BMW shall accept returns from
End-Users who do not accept the End-User terms and refund all monies
paid by said End-Users.
5.4 Nothing stated herein shall be deemed to grant, transfer, assign or
set over unto BMW any right, title, interest or ownership of the
Database or Products, all of which are hereby expressly reserved by
NAVTECH and/or its licensors and suppliers.
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5.5 BMW agrees not to disassemble, decompile or otherwise reverse engineer
the Database or Products, subject to existing South African
legislative requirements.
5.6 BMW acknowledges that NAVTECH's present and future data suppliers may
impose requirements and/or restrictions on NAVTECH and its licensees
and End-Users relating to the display of copyright and other
proprietary rights notices and legends, disclaimers of warranties,
limitations of liability, and similar matters ("Data Supplier
Requirements"). BMW shall comply with all Data Supplier Requirements
imposed by a supplier, subject to BMW's Trade Mark and Corporate
Identity requirements. [redacted].
5.7 [redacted]
5.8 THIRD PARTY LICENSING:
5.8.1 [redacted]
5.8.1.1 [redacted]
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[redacted]
5.8.1.2 [redacted]
5.8.2
5.8.2.1 [redacted]
5.8.2.2 [redacted]
5.8.2.3 [redacted]
5.8.2.4 At BMW's reasonable request, NAVTECH shall make
available to BMW, or any independent auditor
appointed by BMW for such purpose, all information
in NAVTECH's possession required to verify
NAVTECH's compliance with the conditions set forth
in this clause 5.8.
5.8.3 [redacted]
5.8.4 [redacted]
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6. TEST VEHICLES
6.1 BMW shall supply [redacted] test vehicles to NAVTECH on a loan basis,
prior to the commencement of Phase 1. [redacted].
6.2
6.2.1 The test vehicles may not be used, without the prior written
approval of BMW, to test, display or demonstrate the
Databases or any other aspect in the development of the
Product, to any third party.
6.2.2 NAVTECH shall:
6.2.2.1 comply with any and all reasonable instructions
from BMW in relation to the test vehicles; and
6.2.2.2 complete and sign the documentation in relation to
each of the test vehicles as set forth in Annexure
"D".
6.2.3 Only drivers approved in writing by BMW, which approval shall
be provided for the NAVTECH Project Manager, may operate the
test vehicles.
7. WARRANTY
7.1 [redacted]
7.2 In addition to the provision of clause 7.1, all the terms and
conditions contained in the Warranty Agreement entered into between
NAVTECH and BMW AG on September 8, 1998, as applicable from time to
time, shall apply to the Products supplied by NAVTECH to BMW pursuant
to this agreement.
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7.3 Each party represents and warrants that its obligations as provided
for under this agreement are not in conflict with any prior
obligations to third parties.
7.4 Any and all undertakings given by each party in terms of this
agreement shall be deemed to have been given by and shall be binding
upon its directors and employees whether they were directors or
employees at the time of signature of this agreement or whether they
subsequently became directors or employees.
8. CONFIDENTIALITY AND NON-DISCLOSURE
8.1 Each party acknowledges that in the performance of its obligations
hereunder it may be necessary for such party (the "Disclosing Party")
to disclose to the other party (the "Receiving Party") certain
confidential information, trade secrets, technical data and other
information relating to the Disclosing Party or its method of carrying
on business. In this regard it is recorded that:
8.1.1 Confidential information includes all information proprietary
to the Disclosing Party, whether or not reduced to writing or
tangible medium of expression.
8.1.2 Confidential information, specifically but without
limitation, includes information relating to the intellectual
property and business practices of the Disclosing Party.
8.1.3 Intellectual property includes information relating to
research and development, inventions, discoveries,
developments, improvements, methods and processes, know-how,
drawings, blueprints, specifications, product briefs,
algorithms, computer programmes and software, data and
databases, compositions, works, concepts, designs, ideas,
prototypes, models, samples, screens, moulds, lasts, dies,
formulae, writings, notes, patents, copyrights, trade marks,
trade names, trade secrets and patent, trade mark and
copyright applications.
8.1.4 Business practices includes information relating to
intellectual property, business plans, financial information,
products, services, manufacturing processes and methods,
costs, sources of supply, advertising and marketing plans,
customer lists, sales, profits, pricing methods, personnel,
and business relationships, research, survey, information
gathered, proposals
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made and/or improvements suggested in terms of this agreement
or any other information developed or acquired pursuant to
this agreement.
8.1.5 Confidential information also includes comparable information
that the Disclosing Party may receive or has received from
others who do business with the Disclosing Party and for
which the Disclosing Party has an obligation of
confidentiality.
8.2 The Receiving Party hereby undertakes to protect confidential
information of the Disclosing Party, and not to use, disclose, copy,
divulge or allow access to any such confidential information.
8.3 The Receiving Party acknowledges that this undertaking shall continue
after the termination of this agreement and shall survive as long as
the confidential nature of the information is maintained.
8.4 Each party undertakes not to disclose to any third party any
information concerning any project, assignment or task undertaken for
the other party hereunder, and furthermore undertakes not to disclose
to or use on behalf of the other party any confidential information
belonging to a third party, unless written authorisation from the
third party is obtained to the satisfaction of the other party. Each
party, furthermore, undertakes not to disclose, use, publish, make
available to a competitor of the other party or any other person
whatsoever any details about the content of this agreement and any
agreement concluded with [redacted] and/or any third party relating
to this agreement.
8.5 The present director of each party acknowledges by his signature
hereto on behalf of such party that he is aware of the provisions of
this clause 8 and undertakes to make the provisions of this clause
known to all other directors and employees, or subsequent directors
and employees of the company.
8.6 The Receiving Party shall not be obligated under this clause 8 with
respect to information that the Receiving Party can document:
8.6.1 is or has become readily publicly available without
restriction through no fault of the Receiving Party or its
employees or agents; or
8.6.2 is received without restriction from a third party lawfully
in possession of such information and lawfully empowered to
disclose such information; or
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8.6.3 was rightfully in the possession of the Receiving Party
without restriction prior to its disclosure by the Disclosing
Party; or
8.6.4 was independently developed by employees or consultants of
the Receiving Party without access to such confidential
information; or
8.6.5 is required to be disclosed by law or by a lawful requirement
of any government or governmental body, authority or agency
having authority over the Receiving Party, or if such
disclosure is required in connection with legal proceedings
relating to this agreement; provided, however, that in each
such event the Receiving Party shall give the Disclosing
Party prior written notice of any proposed disclosure to
enable the Receiving and/or Disclosing Party to seek a
protective order or other remedy to prevent the disclosure.
9. TRADE NAME AND MARK
9.1 Each party acknowledges that the trade name and the trade marks of the
other party used in connection with Products shall at all times be and
remain the sole and exclusive property of such other party.
9.2 Neither party shall use any such trade mark or trade name of the other
party without the express prior written consent of the other party.
9.3 Each party undertakes that it shall not do any act or thing which
might or would give cause to invalidate or expunge any registration of
title to such trade name and/or trade marks of the other party.
9.4 Each party hereby acknowledges that nothing contained in this
agreement shall afford the other party any rights in or to any such
trade marks, names, initials, designs, copyrights or patents of the
other party (or its affiliates).
9.5 NAVTECH shall not use any BMW trade mark or trade name without the
express prior written consent of BMW. Where such consent is provided,
NAVTECH shall only use such trade mark or trade name in accordance
with instructions issued by BMW or BMW AG from time to time.
9.6 Each party reserves to itself the right to withdraw any written
consent furnished by it for the use of its trade name and trade marks
as provided for in this agreement.
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10. CESSION
Neither party shall be entitled to sell, delegate, cede, assign or in any
other way alienate or dispose (collectively "Assign") of the whole or any
part of its rights or obligations created in terms of this agreement,
without the prior written consent of the other party, which consent shall
not be unreasonably withheld. Notwithstanding the aforementioned, NAVTECH
may without BMW's consent Assign this agreement where NAVTECH's stock,
assets or business is sold, except where such acquisition is by a
competitor of BMW, in which circumstance it is expressly recorded that
BMW's written consent is required.
11. TERMINATION
11.1 Notwithstanding the provisions of clause 2.1 above, and without
prejudice to any rights or other remedies which may be available,
either party shall have the right at any time by giving written notice
to the other party to terminate the agreement forthwith in any of the
following events:
11.1.1 If the other party commits a breach of any of the terms of
this agreement, including, without limitation, a purported
Assignment in contravention of clause 10, and fails to remedy
such breach within 30 days of receipt of written notice
calling upon it to do so, and provided that the non-breaching
party shall not be obliged to give notice as provided for
herein in the event of a material breach of clause 8 above;
and
11.1.2. If the other party should be placed in liquidation, or
attempt to compound with its creditors, or take or suffer any
similar action in consequence of debt;
11.1.3 If for any cause (other than force majeure as contemplated in
clause 14.5) the other party is prevented from performing its
duties hereunder for a period of 90 days; or
11.2 Upon completion of Phase 3, NAVTECH shall be entitled to terminate
this agreement upon [redacted] written notice of termination to
BMW. It is expressly recorded that, notwithstanding any other
provision of this agreement to the contrary, BMW shall not be entitled
to receive or license the Database after the date of a termination
under this clause 11.2.
11.3 Immediately following termination or expiration of this agreement, BMW
shall cease any and all use of and return the Database to NAVTECH, and
each party shall within
<PAGE>
-24-
30 days of such termination or expiration return or destroy all
confidential information provided to it by the other party under this
agreement. The provisions aforesaid shall not apply to:
11.3.1 Products already provided to End-Users; or
11.3.2 Products already paid for by BMW as contemplated under this
agreement.
11.4 Notwithstanding any other provision to the contrary, in the event
that, during the term of this agreement:
11.4.1 NAVTECH ceases to trade as a consequence of insolvency or
other dissolution, [redacted].
11.4.2 [redacted]
11.5 Notwithstanding anything to the contrary herein contained the parties
agree that the provisions of clauses 4, 8, 11.3, 11.4 and 13 shall
survive the termination or expiration of the agreement.
12. DOMICILIUM AND NOTICES
12.1 The parties to this agreement hereby choose domicilium citandi et
executandi for all purposes of this agreement as follows:
12.1.1 BMW at: 1 Bavaria Avenue
Randjespark Ext 17
MIDRAND
(P O Box 2955, Pretoria 0001)
(For Attention: Company Secretary)
<PAGE>
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12.1.2 NAVTECH at: De Waal 1
5684 PH Best
The Netherlands
(for attention: Financial Director)
12.2 All notices required to be given by either party to the other shall be
deemed to have been validly given on the date upon which such notice
is delivered to such party's domicilium citandi et executandi or 14
(fourteen) days after the date upon which such notice is posted to
such party by prepaid registered post, addressed to such party at the
addressee's domicilium citandi et executandi for the time being.
12.3 No notice given by the one party to the other party shall be binding
on either party unless in writing.
12.4 The parties shall be entitled from time to time, by written notice to
the other, to vary its domicilium to any other address which is not a
post office box or poste restante.
13. GOVERNING LAW AND JURISDICTION
13.1 This agreement shall be governed by, construed, enforced and performed
in accordance with the Laws of Germany.
13.2 The parties hereto consent to the exclusive jurisdiction of Germany
for any dispute or claim arising from this agreement. The parties
hereto expressly agree that Munich, Germany shall be the exclusive
place of venue and jurisdiction for any and all disputes arising from
or in the context of this agreement.
14. GENERAL
14.1 No alteration, variation or suspension of any of the terms hereof or
any consensual cancellation hereof shall be of any force or effect
unless reduced to writing and signed by duly authorised
representatives of the parties.
14.2 No latitude, extension or other indulgence which may be given or
allowed by either party ("the grantor") to the other in respect of any
obligation hereunder shall under any circumstances operate as a waiver
or novation of, or otherwise affect, any of the grantor's rights in
terms hereof or arising herefrom, or preclude the grantor from
enforcing at any time and without notice, strict and punctual
compliance with each and every provision of term hereof.
<PAGE>
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14.3 The parties hereto record that this agreement constitutes the entire
agreement between them, and that there are no ancillary or collateral
agreements between them, relating to the subject matter hereof. The
parties further record that this agreement supersedes any prior
agreement which may have been concluded between the parties hereto in
respect of any matter dealt with herein.
14.4 If any of the provisions of this agreement are invalid or
unenforceable or become such, such provision shall, if practical, be
devisable and the remainder of the agreement shall nevertheless be
valid and binding.
14.5
14.5.1 If the performance of this contract is suspended due to force
majeure that party shall give the other party written notice
of the condition of force majeure within 3 (three) working
days of the date on which the condition of force majeure
takes effect, and shall do its utmost to reinstate the
performance due in terms of this contract in the shortest
possible time.
14.5.2 The suspension of performance of this contract due to force
majeure is restricted to a period of not longer than 24 weeks
from the date of commencement of the condition of force
majeure. If the period of 24 weeks has elapsed and, if the
condition of force majeure persists, either party shall be
entitled to cancel this contract with immediate effect and
without prejudice to the other party's rights as contained in
this agreement.
14.5.3 For the purposes of this agreement, force majeure shall mean
an Act of God, strike, lock-out or other interference with
work, war declared or undeclared, blockade, disturbance,
lightning, fire, earthquake, storm, flood, explosion,
governmental or quasi-governmental restraint, expropriation,
prohibition, intervention, direction or embargo or any other
event, whether detailed herein or not, which is beyond the
reasonable control of the party.
14.6 Neither party shall disclose to any third party the existence of this
agreement or its subject matter or content without the other party's
prior written approval, except that either party may disclose to
[redacted] the existence of this agreement and/or information
pertaining thereto [redacted].
<PAGE>
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14.7 The relationship of NAVTECH and BMW established by this agreement is
that of independent contractors, and nothing contained in this
Agreement will be construed so as to:
14.7.1 give either party the power to direct and control the
day-to-day activities of the other, and/or
14.7.2 constitute the parties as partners, joint venturers,
co-owners or otherwise as participants in a joint or
common undertaking, and/or
14.7.3 allow either party to create or assume any obligation on
behalf of the other party for any purpose whatsoever.
14.8 [redacted]
14.9 Notwithstanding anything to the contrary herein contained it is
expressly agreed between the parties that the provisions of this
agreement shall be read together with the provisions of any agreements
concluded between BMW AG and NAVTECH, as amended from time to time,
relating to Purchasing Terms and Conditions for Production Material
and Automobile Components, Warranty and/or Indemnity and BMW
Acceptance Testing. To the extent that the provisions of the
aforementioned agreements are in conflict with any of the provisions
of the terms of this agreement it is recorded that the provisions of
the agreements concluded between BMW AG and NAVTECH shall prevail.
THUS DONE and SIGNED at MIDRAND. on this .........24...... day of ....November
............ 1999.
/s/ Franz Heinrich Schafer
-----------------------------------
on behalf of BMW (SA) (PTY) LIMITED
Franz Heinrich Schafer
-----------------------------------
Name
Manager Corporate Planning
-----------------------------------
Title
<PAGE>
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THUS DONE and SIGNED at Best, The Netherlands......... on this .........30th
...... day of .....November....... 1999.
/s/ Chris Peters
------------------------------------
on behalf of NAVTECH
Chris Peters
------------------------------------
Name
VP-Finance & Administration, Europe
------------------------------------
Title
<PAGE>
ANNEXURE "A"
NAVTECH GEOGRAPHIC DATABASE SPECIFICATIONS
1. COVERAGE
[redacted]
1.1 [redacted]
1.2 [redacted]
1.3 [redacted]
1.4 [redacted]
<PAGE>
-2-
[redacted]
1.5 [redacted]
2. SOURCE
[redacted]
<PAGE>
ATTACHMENT TO ANNEXURE "A"
Database coverage areas shall contain, at the very minimum, the equivalent of
the detailed GIS map coverage described below.
PHASE 1
The Database coverage area for Phase 1 is described graphically in Figure 1
below, where the area to be covered is depicted by the shaded area. The suburbs
contained in the Phase 1 area are listed in Table 1 below. In the event of a
discrepancy arising between Figure 1 and Table 1, the information contained in
Figure 1 shall prevail. [redacted]
Figure 1 appears on the next page of this attachment.
<PAGE>
-2-
Figure 1: Graphic Description of Phase 1 Coverage Area
<PAGE>
-3-
Table 1: Municipal suburbs contained in Phase 1
RANDBURG
RANDBURG NORTH
SANDTON
MODDERFONTEIN
WATERVAL
MIDRAND (partial)
CENTURION (partial)
PRETORIA (partial)
<PAGE>
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PHASE 2
The incremental Database coverage area for Phase 2 will contain the areas
described graphically in Figure 2 below. The total Database coverage after
completion of phase 2 will therefore include the area already covered by Phase 1
above as well as the incremental coverage area depicted by the shaded area
described as "PHASE 2 AREA" in the Legend key in Figure 2 below. In addition to
the suburbs listed in Table 1 above, the Phase 2 area will contain the suburbs
listed in Table 2 below. In the event of a discrepancy arising between Figure 2
and Table 2, the information contained in Figure 2 shall prevail. [redacted].
Figure 2 appears on the next page of this attachment.
<PAGE>
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Figure 2: Graphic Description of Phase 2 Coverage Area
<PAGE>
-6-
Table 2: Municipal suburbs contained in Phase 2 incremental to those already
contained in Phase 1
AKASIA
ALBERTON
BEDFORDVIEW
BENONI
BENONI 1
BOKSBURG
BRAKPAN
CENTURION
EDENVALE
GERMISTON
JOHANNESBURG
JOHANNESBURG SOUTH EAST
JOHANNESBURG SOUTH WEST
KEMPTON PARK
KRUGERSDORP
LEEUKOP
MIDRAND
MODDERFONTEIN
NIGEL
PRETORIA
RANDBURG
RANDBURG NORTH
RANDFONTEIN
ROODEPOORT
ROODEPOORT SOUTH
SANDTON
SOWETO
SPRINGS
WATERVAL
<PAGE>
ANNEXURE "B"
DEVELOPMENT, DELIVERY AND PAYMENT SCHEDULES
The delivery and payment schedules set out in sections a) and b) below relate to
the following key milestones:
Commencement: Substantial commencement of processing by NAVTECH of the GIS
database for each defined area.
Completion of field capture: completion of field work (consisting of capture of
navigation attributes and additional road geometry) for each defined area.
Subsequent quality control may necessitate field validation and checking
subsequent to completion of this phase.
Acceptance Testing: Means the successful testing of the Database by BMW in
accordance with Annexure "C" (which will be conducted following successful
validation of the pre-release Database for NAVTECH by VDO).
a) Development and Delivery Timetable for Database
Phase 1
[redacted]
Phase 2
[redacted]
Phase 3
[redacted]
b) Payment Schedules for Database Development Milestones
Phase 1
<PAGE>
[redacted]
Phase 2
[redacted]
Phase 3
[redacted]
------------
TOTAL: [redacted]
<PAGE>
ANNEXURE "C"
BMW ACCEPTANCE TESTING
The following acceptance procedure will be followed for each Database:
1. [redacted]
2. [redacted]
3. [redacted]
4. [redacted]
5. [redacted]
6. [redacted]
[redacted]
1. [redacted]
2. [redacted]
3. [redacted]
[redacted]
<PAGE>
ANNEXURE "D"
BMW (SOUTH AFRICA)(PTY)LTD.
LOAN VEHICLE ACCEPTANCE & INDEMNITY.
In favour of: BMW (SOUTH AFRICA)(PTY)LTD.
I, the undersigned, hereby acknowledge receipt of a loan vehicle.
I warrant that the vehicle will only be driven by persons with valid drivers'
licences and hereby waive any claim of whatsoever nature against BMW(South
Africa)(Pty)Ltd. and/or any of its employees arising from the driving of said
vehicle.
I will be solely liable for all fines or penalties imposed as a result of any
traffic violation or for any statutory offence committed whilst the vehicle is
under loan in terms of this agreement.
The vehicle is fully insured by BMW (South Africa) (Pty) Ltd. but I hereby agree
to be liable for a first amount payable (Excess) of 5 % of the loss and /or
damage amount.
SIGNED at ...........................this .............day of ............1999.
SIGNATURE:..........................
PLEASE PRINT CLEARLY
FIRST NAME:......................... SURNAME:..............................
NAME OF COMPANY:............................................................
POSTAL ADDRESS OF COMPANY:..................................................
...............................
...............................
Telephone No........................... FAX No................................
VEHICLE DETAILS: Model Type:................Registration No....................