Software Sale and Use Agreement between Divergent Technologies (Pty) Limited and Resource Control Management Ltd.

Summary

Divergent Technologies (Pty) Limited agrees to sell its 'dolfin' Retain Management Systems software to Resource Control Management Ltd. for A$5,525,700, payable in installments. The software is provided as-is, with no warranties or technical support, and is intended for use as a development tool, not a complete retail management system. The buyer may only use, sell, or license the resulting system in specified regions. Amendments clarify that the software continues to be marketed and that the payment is non-refundable from the agreement's effective date. Late payments incur interest unless otherwise waived.

EX-10.31 13 0013.txt SOFTWARE SALE AND USE AGREEMENT SOFTWARE SALE AND USE AGREEMENT This agreement is entered into by and between Divergent Technologies (Pty) Limited, (ACN 003 908 325), ("Seller") and Resource Control Management Ltd. ("Buyer"). The effective date of this agreement is September 18, 1999. Seller agrees to sell and Buyer agrees to purchase the defined software on a non-exclusive basis under the terms and conditions set forth herein. The defined software is the "dolfin" Retain Management Systems, version 1, with object code written in "magic" ("RADT"). This version is multi-platform and does operate, in its current configuration, on AS/400, Unix, and Windows environments only. This sale includes the core-code without supplemental modification only or point of sale interface. Seller has provided Buyer an evaluation coy of the software as of July 31, 1999. Buyer has completed a 45 day evaluation period and agrees that the software, as provided, is suitable for their development only purposes. The parties agree that the software, as provided, is not and will not be a fully functional retail management system and will not function without further expansion and modification. Seller further states that the software being sold is not currently being used by any of Seller's existing clients. The consideration for this ale will be A$5,525,700 and will be due and payable as defined herein. The parties agree that the sum will be non-refundable upon receipt of payment. Divergent makes, implies or expresses no warranties regarding the suitability or adequacy of the software. Divergent will not provide technical support or services for the software. The parties agree to the following specific restrictions on the use of the software: The software will be used by the Buyer as a rapid development tool for the creation of a retail management system to be separately marketed and branded. The trademark name "dolfin," the name Divergent Technologies, SVI Systems, Inc., SVI Retail, Inc., Softline Limited or any affiliate thereof may not be used in any way in the development or future marketing of the contemplated retail management system. Upon completion of their retail system development, the Buyer agrees to limit any use, sale or licensing of their retail management system to the following specific areas on a non-exclusive basis: 1. Africa (the continent) 2. United Kingdom 3. Scotland 4. Ireland 5. Norway Payment Schedule: Buyer agrees to pay to seller the sum of A$5,525,700 on the dates and in the sums as follows: On date of Agreement A$2,762,850 31 December 1999 A$2,762,850 Total of payments A$5,525,700 Any payment not received by the Seller in a timely manner will bear 8% annum interest from the day following the due date. All correspondence between the parties will be handled as follows: Seller: Divergent Technologies (Pty) Ltd. Level 1, 35 Spring Street Bondi Junction Sydney, NSW 2022 Australia Phone: 011 ###-###-#### Fax: 011 ###-###-#### Contact: Shaun Rosen, MD - Retail Operations Buyer: Resource Control Management Limited (UK) Docklands Business Centre 10-16 Tiller Road London, F14 8PX United Kingdom Phone: 011-44 ###-###-#### Fax: 011-44 ###-###-#### Contact: Gabriel Scallon, Managing Director Signed this date: September 16, 1999 Seller: Buyer: /s/ Barry Schechter /s/ Gabriel Scallon - ------------------------------------ ------------------------------------ Barry Schechter Gabriel Scallon Chairman of the Board Managing Director 2 [SVI LETTERHEAD] January 18, 2000 Fax: 011-44-01-71-53l-0383 Mr. Gabriel Scallon Managing Director Resource Control Management, Ltd. (UK) Dooklands Business Centre 10-16 Tiller Road London, F14 8PX United Kingdom Re: Overdue Payments/Software Sale Dear Gabriel: I am very disappointed with the delays in our agreed payment schedule. I appreciate that you have kept Shaun and I informed of our financing status, however, the delay is causing the Company undue hardship. Per our most recent conversation, SVI will waive the accrued interest provisions of our agreement dated September 18, 1999 provided you make the following payments as specified below in a timely manner: o On or before May 1, 2000 the sum of A$3,070,000 or US$2,000,000 o On or before August 31, 2000 the balance of A$2,455,700 or US$1,600,000 Gabriel, there can be no further delays. These payments must be made in timely manner. Regards, /s/ Barry Schechter Barry Schechter Chief Executive Officer 12707 High Bluff Drive, Suite 355 San Diego, CA 92130 ###-###-#### oFAX ###-###-#### [SVI LETTERHEAD] May 10, 2000 Mr. Gabriel Scallon Managing Director Resource Control Management Limited (UK) Docklands Business Centre 10-18 Tiller Road London, F14 8PX United Kingdom Re: Proposed amendments to our Software Sale and Use Agreement, dated September 16, 1999 Dear Gabriel: To clarify the intent of the parties to the agreement, I ask that you agree with me to the following specific changes in the language of the Contract: Page 1, Paragraph 4, the last sentence will be stricken in its entirety and replaced with the following language: "Seller further states that the software being sold is software that continues to be marketed regularly to new and existing clients of the seller." Page 1, Paragraph 5, the second sentence will be stricken in its entirety and replaced with the following language: "The parties agree that the sum stated herein is non-refundable as of September 16, 1999, the effective date of this agreement." Gabriel, we are in the late states of our annual audit and request that you review the above changes, sign below indicating your acceptance of the amended language and fax a copy back to my attention at ###-###-#### as soon as possible. Please also mail the original signature copy to my attention at our address below. Regards, /s/ Barry M. Schechter Barry M. Schechter I agree with the amended language as Chief Executive Officer proposed herein. /s/ Gabriel Scallon 10/05/00 ------------------------------------ Gabriel Scallon Date Managing Director Resource Control Management Limited (UK) 12707 High Bluff Drive, Suite 336 - San Diego, CA 92130 - (858) 481-0103 - Fax ###-###-####