Exhibit 10.1
** Certain information in this exhibit has been omitted and has been filed
separately with the Securities and Exchange Commission pursuant to a
confidential treatment request under Rule 24b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934.
SOFTWARE AND SERVICES AGREEMENT
THIS SOFTWARE AND SERVICES AGREEMENT ("Agreement") is made as of the 20th day of
March, 2007 (the "Effective Date") by and between Nitido Inc., with offices
located at 1 Atlantic Avenue, Suite 210, Toronto, Ontario, Canada M6K 3E7
("Licensor") and Tucows Inc., with offices located at 96 Mowat Avenue, Toronto,
Ontario, Canada M6K 3M1 ("Licensee").
WHEREAS, Licensor owns or has the right to license certain computer software and
software tools for the operations and development of web-based systems and
applications, as further particularized below; and
WHEREAS, subject to the terms and conditions of this Agreement, Licensee wishes
to license such web-based systems and applications and receive certain
maintenance, support and consulting services in connection therewith, as further
particularized herein
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and
restrictions herein contained, Licensor and Licensee hereby agree as follows:
1
1.1.
RECITALS AND DEFINITIONS
1.1.1.
RECITALS: THE ABOVE RECITALS AND IDENTIFICATION OF THE PARTIES ARE
TRUE AND CORRECT.
1.1.2.
THE FOLLOWING DEFINITIONS SHALL APPLY IN THIS AGREEMENT:
.
ACTIVATED MAILBOX:
THE TERM "ACTIVATED MAILBOX" MEANS A MAILBOX
THAT HAS BEEN MIGRATED ONTO OR OTHERWISE INTEGRATED WITH THE BINARY SOFTWARE
[*****************] (OR ANY COMPONENT THEREOF).
.
AFFILIATE:
THE TERM "AFFILIATE" MEANS ANY ENTITY CONTROLLED BY,
UNDER DIRECT OR INDIRECT COMMON CONTROL BY LICENSEE AND WHOSE CUSTOMERS ARE
BEING PROVIDED THE SAME OR SUBSTANTIALLY THE SAME SERVICES FROM SUCH AFFILIATE
AS LICENSEE'S CUSTOMERS ARE FROM LICENSEE.
.
ASSESSMENT DATE:
THE TERM "ASSESSMENT DATE" MEANS THE QUARTERLY
ASSESSMENT DATE USED FOR THE CALCULATION OF THE NUMBER OF ACTIVATED MAILBOXES
EACH CALENDAR QUARTER DURING THE TERM, WHICH DATE SHALL FALL ON EACH THIRD
MONTHLY ANNIVERSARY COMMENCING APRIL 1, 2007 FOR THE DURATION OF THE TERM.
FOR
AVOIDANCE OF DOUBT, THE FINAL ASSESSMENT DATE SHALL BE THE DATE OF TERMINATION
OR EXPIRATION OF THIS AGREEMENT.
.
BINARY SOFTWARE:
THE TERM "BINARY SOFTWARE" MEANS
(i)
the NiM Platform in binary form (including NiM APIs, NiM SDK and
associated build environment), as further described in "Attachment A - Software
Product Description";
(ii)
the Webmail AJAX Beta 3 application in binary form, as further
described in "Attachment A - Software Product Description";
(iii)
the WAP Server application in binary form, as further described in
"Attachment A - Software Product Description";
(iv)
the JME Client application in binary form, as further described in
"Attachment A - Software Product Description";
(v)
Protocols in binary form; and
(vi)
Updates and Enhancements in binary form, if any, to any of the foregoing
supplied to Licensee pursuant to this Agreement.
2
.
CONSULTING FEE(S): THE TERM "CONSULTING FEE(S)" MEANS ANY
CONSULTING FEE(S) CHARGED TO LICENSEE BY LICENSOR FOR THE PROVISION OF
CONSULTING SERVICES PURSUANT TO SECTION 1.5 HEREUNDER, AS FURTHER