LICENSE AND SETTLEMENT AGREEMENT
(Sweden)
This License and Settlement Agreement dated as of __________ __, 20__ is among
_____________________________, (“Supplier”), Orbian Management Limited, a
corporation organized and existing under the laws of the United Kingdom (“Orbian”) and
Orbian Financial Services II Limited, a company incorporated and registered in England and
Wales (“OFS”).
Background
A.
B.
C.
The Supplier has entered into commercial transactions with Siemens AG, Germany,
and/or one or more of its Affiliates (each a “Buyer”) that have generated Receivables,
and may in the future enter into commercial transactions with a Buyer that would
generate additional Receivables.
To facilitate the processing of such Receivables, the Supplier and the respective
Buyers intend to utilize a computerized settlement system. Orbian provides such a
system and is willing to permit the Supplier to use the system. The Supplier and
Orbian wish to set the terms and conditions of the Supplier’s usage of the system.
OFS will provide services in relation to the settlement of the Receivables to the
Supplier based on the computerized settlement system. From time to time, the
Supplier also wishes to sell to OFS, and OFS wishes to purchase from the Supplier,
Receivables. For the sale and purchase of Receivables, the Supplier and the
Purchaser have executed that certain Discount Agreement dated as of ___________
__, 20__ (as amended, supplemented or otherwise modified and in effect from time to
time, the “Discount Agreement”) that is attached as Annex 1 to this Agreement.
NOW, THEREFORE, the Supplier, Orbian and OFS agree as follows:
I.
Definitions.
In this Agreement:
“Affiliate” means any corporation, association or other entity that is directly or indirectly wholly
owned by Siemens AG.
“Agreement” means this License and Settlement Agreement together with any attachments
hereto, as such may be amended, supplemented or otherwise modified and in effect from
time to time in accordance with its terms.
“Business Hours” means the time between 7 a.m. to 8 p.m. European Central Time on
Business Days.
“Business Day” means a calendar day other than Saturday and Sunday and other than a
public holiday in the country of the seat of the Supplier.
“Buyer” means an Affiliate or Siemens AG in its function as a buyer under a Supply Contract.
“Discount Agreement” has the meaning as defined in Clause C of the Background.
“Documentation” means the tangible printed information provided to Supplier in connection
with use of the Orbian System.
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“Equipment” means all equipment provided by or on behalf of Orbian for the purpose of
accessing or using the Orbian System, including, without limitation all authentication
products.
“Licensed Resources” means the Documentation, Equipment and Software.
“Orbian System” means the electronic settlement system as specified in the Documentation
made available to the Supplier hereunder and any copyright, trademark, patent, database,
software or other intellectual property rights relating thereto, including any embodiment of
such intellectual property rights.
“Payment Notification” means, with respect to a Receivable owed by a Buyer, the notification
sent by OFS to the Supplier through the Orbian System, notifying the Supplier that such
Buyer has instructed OFS to make payment from funds to be provided by the Buyer of a
specified amount on a specified date in full or partial payment of such Receivable.
“Receivables” means the payment obligation of a Buyer in relation to the (purchase) price of
the goods delivered or the services performed by the Supplier under a Supply Contract.
“Software” means all software, programming or object code provided by Orbian to Supplier
for utilizing a computer or a like device to use the Orbian System.
“Supply Contract” means a contract for the purchase of goods and/or services between a
Buyer and the Supplier for the purchase of goods and/or services, resulting in payment
obligations owed by such Buyer to the Supplier.
“Supply Chain Finance Program” means the settlement and purchase of Receivables
through the Orbian System in Europe in which various suppliers of Siemens AG and of the
Affiliates participate.
II.
Use of the Orbian System
1.
License Grant. Orbian grants the Supplier a non-exclusive, non-transferable,
royalty-free license for the duration of this Agreement to access and use the Orbian System
and the Licensed Resources solely for the purposes contemplated by this Agreement
(including the Discount Agreement, Annex 1) and subject to the terms and conditions of this
Agreement. Orbian, its parent, subsidiaries, affiliated companies, assigns and licensors
retain title to, and ownership of all proprietary rights in the Licensed Resources and the
Orbian System (including but not limited to copyright, patent and trademark rights as well as
revisions, upgrades, updates, derivative works and other improvements to the Orbian
System).
2.
Access and Availability, Services. Orbian shall provide the Supplier the Licensed
Resources, Support and technical access to the Orbian System via internet facilities during
the term of this Agreement. Orbian shall provide an availability of the full functionality of the
Orbian System as required for the purpose of this Agreement (including the Discount
Agreement, Annex 1) of at least 98.5 % of the time during the Business Hours calculated on
a monthly basis.
3.
Usage. The Supplier undertakes to comply with the Documentation and all
reasonable instructions therein for the Software and Equipment.
4.
Copies. The Supplier is permitted to print copies of reasonable extracts from the
Documentation and to save reasonable copies of the Documentation on their hard drive
solely for the purpose of exercising its authorized usage rights and fulfilling its obligations
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under this Agreement. All other copying, distribution or commercial use of any of the
Licensed Resources is strictly forbidden.
5.
Restrictions on Use. The Software contains copyrighted material, trade secrets,
and other proprietary material of Orbian and its suppliers. The Supplier is not permitted to (i)
modify, adapt, alter, translate, decompile, disassemble or otherwise reverse engineer the
Software or reduce the Software to human-readable form by any means whatsoever; (ii)
remove any identification, copyright or other notices from the Software; or (iii) create a
derivative work of any part of the Software; or (iv) rent, lease, loan or distribute the Software
in whole or in part. These restrictions are limited so that they prohibit such activity only to the
maximum extent such activity may be prohibited without violating the respective EC Directive
on the Legal Protection of Computer Programs. Notwithstanding the foregoing, prior to any
such legally excused decompiling, disassembly or reverse engineering of the Software, the
Supplier must first issue a written request to Orbian for information or assistance and the
Supplier shall refrain from decompiling, disassembly, or otherwise reverse engineering any of
the Software unless Orbian cannot, or fails, to comply with such request within a
commercially reasonable period of time.
6.
System Security. The Supplier undertakes to implement appropriate security
relating to the use by the Supplier of the Orbian System in accordance with the
Documentation. Orbian undertakes to implement reasonable security relating to the Orbian
System.
7.
Acknowledgements. The Supplier acknowledges and agrees that: (i) there may be
downtime from time to time for maintenance purpose after 8 p.m. and prior to 7 a.m.
European Central time on any Business Day and on week-ends when the Orbian System
cannot be accessed and (ii) the Supplier is responsible for procuring and maintaining, and
Orbian has no liability or responsibility in respect of, equipment not supplied by or on behalf
of Orbian, or utility services (such as LAN or internet connection) that the Supplier utilizes in
order to access the Orbian System and maintaining a link to the Orbian System.
8.
Limitation on Orbian’s Liability. Orbian’s liability towards the Supplier hereunder for
cases of gross negligence or willful misconduct shall not be limited. In the event of mere
negligence, Orbian’s liability is limited to typical and foreseeable damages unless essential
obligations of Orbian under this Agreement are concerned. In any event, Orbian’s liability for
mere negligence shall be limited to an amount of the Receivable at issue. Liability by Orbian
for any indirect, consequential, incidental or punitive damages shall be excluded.
III.
Services provided by OFS
1.
Settlement For Non-Discounted Receivables.
(a)
The Discount Agreement shall apply to any sales and purchases of Receivables
between the Supplier and OFS (including the settlement of the purchase price for such
Receivables) and their assignment to OFS.
(b)
In the event that OFS has issued a Payment Notification with respect to a Receivable
and either the Supplier does not offer such a Receivable for sale or OFS does not accept an
offer to buy such Receivable the following shall apply: OFS will make payment to the
Supplier’s designated bank account on the payment date specified in the Payment
Notification for such Receivable solely from unrestricted funds deposited by the applicable
Buyer and made available to OFS for distribution with respect to such Receivable. The
Supplier acknowledges and agrees that (i) it shall have no right to any such funds and (ii) if
such funds are not made available to OFS or (iii) in the event the OFS did not issue a
Payment Notification or (iv) if OFS has not made a payment to the Supplier-, then the
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Supplier’s only recourse and source for payment of the Receivable shall be to the applicable
Buyer under the respective Supply Contract.
(c)
The Supplier hereby acknowledges that it understands that on any payment date, a
total payment may be made by a Buyer with respect to many payment notifications delivered
to multiple suppliers. In the event that insufficient funds are deposited by the applicable
Buyer in order to make all payments due or past due on such payment date according to the
payment notifications, then the amounts so deposited by the Buyer shall constitute payment
by the Buyer in respect of, and OFS will allocate such funds first to such payment
notifications and the Receivables related thereto being sold to OFS and then in respect of all
other payment notifications in accordance with their respective payment dates (with the
payment notifications with the earliest payment date paid first) and pro-rata among payment
notifications with the same payment date.
(d)
OFS shall be entitled to rely upon a communication by the Supplier irrespective of
any error or fraud contained in the communication or the identity of the individual who sent
the communication. The Supplier knowingly and voluntarily waives the right to contest the
validity or enforceability of such communication.
2.
Limitation on Liability; Supplier Covenants. (a) OFS’s liability towards the Supplier
under this Agreement for cases of gross negligence or willful misconduct shall not be limited.
In the event of mere negligence, OFS’s liability is limited to typical and foreseeable damages
unless essential obligations of OFS under this Agreement are concerned. In any event,
OFS’s liability vis-à-vis the Supplier for mere negligence shall be limited to an amount of the
Receivable at issue. Neither the Supplier nor OFS shall be liable to the other for any indirect,
exemplary, special, punitive, incidental, or consequential damages or loss, even if advised of
the possibility of such loss or damage. OFS shall have no liability to the Supplier hereunder
with respect to any obligation of Orbian, the Orbian System or the Licensed Resources. The
Supplier hereby acknowledges and agrees that the rights of OFS under this Agreement shall
be separate and distinct from the obligations of Orbian to the Supplier. Neither OFS nor the
Supplier shall be liable for any claims, liabilities, or expenses due to forces beyond their
respective reasonable control, including without limitation strikes, work stoppages, acts of
war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God.
(b)
The Supplier hereby covenants and agrees that it will not institute against, or join any
other person or entity in instituting against, OFS any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
insolvency, bankruptcy or similar law. The provisions of this clause III.2 (b) shall survive any
termination of this Agreement.
3.
No Implied Duties, No Third Party Beneficiaries. OFS does not owe any duty or
obligation other than as expressly stated in this Agreement, and owes no duties or
obligations to any person or entity that is not a party to this Agreement. Nothing herein,
express or implied, shall give to any person or entity, other than the Supplier and OFS, as
well as their respective successors and assigns to the extent permitted under this
Agreement, any benefit of any legal right, remedy or claim hereunder.
4.
Remuneration. The use and access of the Orbian System and the Licensed
Resources, the granted licenses and the services provided by Orbian and OFS pursuant to
this Agreement are free of charge for the Supplier.
IV.
Common Provisions for chapter II and III
1.
Indemnification. (a) The Supplier hereby agrees to indemnify Orbian and OFS from
and against any and all claims, damages, expenses, costs, losses and liabilities (including,
without limitation, reasonable attorney costs) arising out of or resulting from (whether directly
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or indirectly) (i) any dispute (including without limitation, claims that services were not
rendered or goods not delivered), claim, offset or defense of a Buyer with respect to the
payment of any Receivable which (A) arises from fraud, negligence or other wrongdoing of
the Supplier and (B) results in the Buyer not making a payment with respect to a Payment
Notification related to such Receivables in a timely manner or (ii) the fraud, gross negligence
or willful misconduct of the Supplier; it being understood that the Supplier shall not be liable
to indemnify or pay Orbian and OFS with respect to any credit losses with respect to any
Payment Notification (and any Receivable related thereto) resulting from the Buyer’s failure
to pay.
2.
Representations and Covenants of the Supplier. The Supplier represents and
covenants that: (a) this Agreement does not violate or conflict with (i) the organizational
documents of the Supplier, (ii) any contract or agreement to which the Supplier is a party or
by which it is bound, or (iii) any court or administrative order applicable to the Supplier; (b)
the underlying transactions between the Supplier and the Buyer (i) are for the sale and
delivery of goods or services in the ordinary course of the Supplier’s business and (ii) are
not, to the best of the Supplier’s knowledge, the subject of any actual litigation or arbitration
proceeding; (c) the Supplier shall not use the Orbian System for investment or arbitrage
functions or purposes, or for any money laundering purpose, or in contravention of any law or
regulation; and (d) the Supplier shall comply with all relevant laws and regulations applicable
to this Agreement and transactions conducted using the Orbian System including, without
limitation, all applicable sanctions and export control laws.
3.
Representations and Covenants of OFS and Orbian. OFS and Orbian covenant
that they will comply with all relevant laws and regulations applicable to this Agreement and
transactions conducted using the Orbian System including, without limitation, all applicable
sanctions and export control laws.
Except as expressly provided in this Agreement, no representation, warranty, term or
condition, express or implied, statutory or otherwise, is given or assumed by OFS or Orbian
in respect of (a) the Licensed Resources or the Orbian System, (b) the Supplier’s underlying
commercial transactions or (c) the goods or services to which such underlying transactions
relate.
4.
Information, Data and Access. The Supplier shall maintain and implement
administrative and operating procedures, and keep and maintain all documents, books,
records and other information reasonably necessary or advisable for the collection of all
Receivables hereunder or under the Discount Agreement, and with respect to compliance of
the underlying commercial transactions with applicable laws and regulations. The Supplier
shall retain each record required to be maintained under this Clause 4 during the term of this
Agreement and, if applicable, for such longer period as may be required by law or regulation.
The Supplier shall make such procedures, documents, books, records and other information
available to OFS and their agents, representatives and relevant authorities upon request,
and shall allow copies or extracts thereof to be made as OFS deems necessary.
The Supplier agrees that the information and data entered into the Orbian System by the
Supplier may be disclosed to and used by Siemens AG and Siemens Financial Services
GmbH for statistical and other evaluation purposes in relation to the Supply Chain Finance
Program of Siemens AG and their affiliates.
5.
Waivers; Severability. No failure or delay in exercising any right or remedy under
this Agreement will constitute a waiver of that right. If any provision of this Agreement is or
becomes illegal, invalid or unenforceable under any applicable law, the remaining provisions
of this Agreement will remain in full force and effect.
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6.
No Assignment. Neither the Supplier nor OFS or Orbian may assign or delegate any
of its rights or obligations, and OFS and Orbian may not delegate any of its obligations under
this Agreement without the prior written consent of the other parties hereto; provided,
however, that upon written notice to the Supplier, Orbian and/or any of its affiliates may
assign its rights and obligations under this Agreement in whole or in part to any subsidiary or
affiliate or to any corporation or other entity into which any Orbian entity may be merged or
converted or with which it may be consolidated, or any corporation or other entity resulting
from any merger, conversion or consolidation to which any Orbian entity may be a party.
7.
Termination. Either party may terminate this Agreement upon prior written notice to
the other with immediate effect upon 30 days’ written notice. However, either party may
terminate this Agreement immediately upon notice of material breach of this Agreement by
another party provided that the breaching party did not cure such material breach within 15
days as of receipt of a demand of the other party to cure the material breach or such breach
is not capable of remedy. Notwithstanding the aforesaid under this Clause IV.7, after notice
of termination of this Agreement, the license grant pursuant to Clause II.1 hereunder shall
only be terminated immediately upon the settlement in full of the last outstanding Receivable
on the Orbian System. The termination of this Agreement by Orbian will not terminate this
Agreement between the Supplier and OFS.
8.
Survival. If this Agreement is terminated in accordance with Clause IV.7, then,
subject to Clause IV.7., this Agreement shall be of no further force and effect, provided that
all confidentiality, indemnification, payment and reimbursement obligations and all limitation
of liability provisions contained in this Agreement shall survive and remain in full force and
effect notwithstanding such termination.
9.
Governing Law; Jurisdiction. This Agreement and all matters arising out of or in
any way relating to this Agreement shall be construed in accordance with and governed by
the substantive laws of Sweden without regard to its conflicts of laws provisions. The
application of the United Nations Convention on Contracts for the International Sale of Goods
of April 11, 1980 shall be excluded.
The exclusive place of jurisdiction for all matters arising out of or in connection with this
Agreement shall be the courts of Sweden.
10.
Confidentiality. Except as required by applicable law, the existence and content of
this Agreement, all information related to the Orbian System and all information related to the
financing transactions in relation to this Agreement shall not be disclosed publicly or made
available to third parties by the Supplier, Orbian or OFS without the prior written approval of
the respective other party. Buyers and Siemens Financial Services GmbH will not be
considered as third party in the meaning of this Clause 10. The Supplier agrees that Siemens
AG and its Affiliates may in their sole and absolute discretion provide any information and
documentation in relation to the business relationship with the Supplier to OFS and/or
Orbian; this provision is concluded in favor of Siemens AG and its Affiliates (third party
beneficiary agreement).
11.
Notices, etc. Any notice to be given under this Agreement shall be sent to the
applicable address specified below. This Agreement may not be modified except in writing
and signed by the parties hereto. This Agreement may be executed in counterparts, each of
which shall be an original and all of which shall constitute the same agreement.
12.
No Agent. OFS and Orbian do exclusively act on their own behalf under and in
connection with this Agreement. Neither of them is entitled or authorized to represent or to
act on behalf of Siemens AG or any of its Affiliates, except for making payments in
accordance with clause III.1 of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the
date and year first above written.
___________________________
[Supplier]
By:
Name:
Title:
Address:
____________________________________
Orbian Management Limited
By:
Name: James D. Houston
Title: Managing Director
Address: New Broad Street House,
35 New Broad Street,
London, EC2M 1NH, UK
____________________________________
ORBIAN FINANCIAL SERVICES II LIMITED
By:
Name: James D. Houston
Title: Managing Director
Address: New Broad Street House,
35 New Broad Street,
London, EC2M 1NH, UK
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