EXHIBIT 10(a): Technology Transfer Agreement
TECHNOLOGY TRANSFFR AGREEMENT
This Technology Transfer Agreement (the "Agreement") is made and
entered into by and between Diamondback Voicemail Systems, Inc.
("Diamondback"), an Arizona corporation ("Seller") and iWizard
Holding, Inc., a Nevada corporation ("Buyer"); and Xxxxx Xxxxxx
("Xxxxxx"), individually. Seller, Buyer, and Xxxxxx will be
referred to as the Parties.
RECITALS
A. Seller is the owner of certain technology, which is
identified as Exhibit A (the "iWizard Technology").
B. Buyer desires to purchase and acquire from Seller the
iWizard Technology, and Seller desires to transfer and convey the
same to Buyer, in accordance with the terms and conditions of
this Agreement.
C. Seller represents that it owns all of the iWizard Technology
outright. Seller represents that it has not sold or transferred
the iWizard Technology or any technology directly or indirectly
related to the iWizard Technology to any entity. Seller
represents that it has not licensed the iWizatd Technology or any
technology directly or indirectly related to the iWizard
Technology to any entity.
D. Seller and Xxxxxx represent that they have no interest in
either directly or indirectly any technology that has any of the
same functionalities as the iWizard Technology.
E. Seller and Xxxxxx represent that they have no knowledge of
other technology that performs the same functionality as any of
the iWizard Technology.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants contained herein, and on the terms and
subject to the conditions herein set forth, the Parties hereby
agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the
meanings set forth below:
1.1. Closing. "Closing" shall mean the closing of the
transaction contemplated by this Agreement, which shall occur at
5:00 p.m., Mountain Standard Time, on the Closing Date in the
offices of Seller, or at such other time and place as shall be
mutually agreed in writing by the Parties.
1.2. Closing Date. "Closing Date" shall mean October 26, 2001,
unless otherwise mutually agreed in writing by the Parties.
1.3. iWizard Technology. "iWizard Technology" shall mean all of
the technology, rights, and interests described in Exhibit A.
ARTICLE II
Purchase and Sale
2.1. Sale and Purchase of iWizard Technology. Subject to the
terms and conditions contained in this Agreement, Seller sells,
transfers, assigns, conveys, and delivers to Buyer, free and
clear of all liens, claims and encumbrances, and Buyer purchases,
accepts and acquires from Seller the iWizard Technology.
2.2. Purchase Price. The Parties hereby value the iWizard
Technology at the sum of $2,000, which shall be payable by Buyer
to Seller in the form of common stock of the Buyer in an
aggregate amount of 2,000,000 shares of common stock of the Buyer
to be issued upon execution of this Agreement.
2.3. Transfer and Further Assurances.
(a) Transfer of technology. Seller transfers to Buyer the
following. All copyrights and claims to copyrights for or
directly or indirectly relating to the iWizard Technology.
(i) All trade secrets, confidential information, or proprietary
information directly or indirectly relating to the iWizard
Technology.
(ii) All patents or patentable information directly or indirectly
relating to the iWizard Technology.
(iii) All trade names and trademarks directly or indirectly
relating to the iWizard Technology. All rights and interests of
any kind in or directly or indirectly related to the iWizard
Technology.
(iv) Seller shall execute or provide any other instrument or
instruments to transfer any of the rights to the iWizard
Technology that the Buyer believes to be necessary or appropriate
or as otherwise is necessary or appropriate to vest in Buyer good
and marketable title to the iWizard Technology.
(v) Such other instrument or instruments of transfer as shall be
necessary of appropriate, as Buyer shall reasonably request, to
vest in Buyer good and marketable title to the iWizard
Technology.
(b) At the Closing, Buyer shall deliver to Seller.
(i) Share certificates evidencing the issuance of 2,000,000
shares of common stock of the Buyer to Seller; and
(ii) Such other instrument or instruments as shall be necessary
or appropriate to transfer the shares of common stock as Seller
shall reasonably request.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents:
3.1. Organization and Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada, with all the requisite power and
authority to carry on the business in which it is engaged, to own
the properties it owns and to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
3.2. Authorization and Validity. The execution, delivery and
performance by Buyer of this Agreement and the other agreements
contemplated hereby, and the consummation of the transactions
contemplated hereby, have been duly authorized by Buyer.
3.3. No Violation. Neither the execution and performance of this
Agreement or the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or thereby,
will (a) conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default under, the
Articles of Incorporation or Bylaws of Buyer or any agreement,
indenture or other instrument under which Buyer is bound, or (b)
violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Buyer or the
iWizard Technology.
3.4. Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of thus Agreement or the
agreements contemplated hereby on the part of Buyer.
ARTICLE IV
Representations and Warranties of Seller
Seller represents:
4.1. Organization and Good Standing. Seller is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Arizona, with all the requisite power and
authority to carry on the business in which it is engaged, to own
the properties it owns and to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
4.2. Authorization and Validity. The execution, delivery and
performance by Seller of this Agreement and the other agreements
contemplated hereby, and the consummation of the transactions
contemplated hereby, have been duly authorized by Seller.
4.3. Title. Seller has good and marketable title to the iWizard
Technology which is the subject of this Agreement. Upon
consummation of the transactions contemplated hereby, Buyer shall
receive good, valid and marketable title to all the iWizard
Technology free and clear of all liens, claims, and encumbrances.
4.4. Commitments. The iWizard Technology is not restricted by,
whether or not in writing, any (i) partnership or joint venture
agreement; (ii) deed of trust or other security agreement; (iii)
guaranty or suretyship, indemnification or contribution agreement
or performance bond; (iv) employment, consulting or compensation
agreement or arrangement, including the election or retention in
office of any director or officer; (v) labor or collective
bargaining agreement; (vi) debt instrument, loan agreement or
other obligation relating to indebtedness for borrowed money or
money lent to another; (vii) deed or other document evidencing an
interest in or contract to purchase or sell real property; (viii)
agreement with dealers or sales or commission agents, public
relations or advertising agencies, accountants or attorneys; (ix)
lease of real or personal property, whether as lessor, lessee,
sublesser, or sublessee; (x) agreement relating to any material
matter or transition in which, an interest is held by a person or
entity which is an affiliate of Seller; (xi) powers of attorney;
or (iii) contracts containing noncompetition covenants.
4.5. Adverse Agreements. Seller is not a party to any agreement
or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree,
rule or regulation which materially and adversely affects or, so
far as Seller can now foresee, may in the future materially and
adversely affect the iWizard Technology.
4.6. No Violation. Neither the execution and performance of this
Agreement or the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or thereby,
will (a) conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default under, the
Articles of Incorporation or Bylaws of Seller or any agreement,
indenture or other instrument under which Buyer is bound, or (b)
violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the iWizard
Technology of Seller.
4.7. Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or
authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Seller.
4.8. Compliance with Laws. There are no existing violations by
Seller of any applicable federal, state or local law or
regulation, except to the extent that any such violations would
not have a material adverse effect on the property or business of
Seller.
4.9. Accuracy of information Furnished. All information
furnished to Buyer by Seller is true, correct and complete in all
material respects. Such information states all material facts
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such
statements are made, true, correct and complete.
4.10. Proceedings. No action, proceeding or order by
any court or governmental body or agency shall have been
threatened in writing, asserted, instituted or entered to
restrain or prohibit the carrying out of the transactions
contemplated by this Agreement.
ARTICLE V
Non-Compete Agreement
5.1. Non-Compete Agreement. Seller and Xxxxxx agree that for a
period of ten (10) years following the Effective Date of this
Agreement, the Seller and or Xxxxxx will not directly or
indirectly engage in any business competitive with the Buyer.
Directly or indirectly engaging in any competitive business
includes, but is not limited to: (i) engaging in a business as
owner, partner, or agent; (ii) becoming an employee of any third
party that is engaged in such business; or (iii) becoming
interested directly or indirectly in any such business; or (iv)
soliciting any customer of the Buyer for the benefit of a third
party that is engaged in such business. The Seller and Xxxxxx
agree that this non-compete provision will not adversely affect
the livelihood of Xxxxxx.
ARTICLE VI
Miscellaneous Provisions
6.1. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a written agreement signed by
Buyer, Seller, and Xxxxxx
6.2. Waiver of Compliance; Consents. Any failure of any Party to
comply with any obligation, covenant, agreement or condition in
this Agreement may be waived by the Party entitled to the
performance of such obligation, covenant or agreement or who has
the benefit of such condition, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, or
agreement or condition will not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
6.3. Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in writing
and will be deemed to have been duly given when delivered by (i)
hand; (ii) reliable overnight delivery service; or (iii)
facsimile transmission.
If to Buyer, to:iWizard Holding, Inc.
10105 E. Xxx Xxxxx, Xxxxxxxx 0,
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Seller, to: Diamondback Voicemail
Systems, Inc.
0000 X. Xxx Xxxxx
Xxxxxxx, XX 00000
If to Xxxxxx, to: Xxxxx Xxxxxx
0000 X. Xxx Xxxxx
Xxxxxxx, XX 00000
6.4. Entire Agreement. This Agreement contains the entire
understanding between and among the Parties and supersedes any
prior understandings and agreements among them respecting the
subject matter of this Agreement.
6.5. Agreement Binding. This Agreement shall be binding capon
the heirs, executors, administrators, successors and assigns of
the Parties.
6.6. Attorneys' Fees. In the a suit or action is brought by any
parry under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be
entitled to reasonable attorneys fees to be fixed by the trial
court and/or appellate court.
6.7. Governing Law. This Agreement shall be governed by the laws
of the State of Arizona. The Courts in Maricopa County, Arizona
have exclusive jurisdiction and the Courts in Maricopa County,
Arizona are the exclusive venue for disputes relating to the
interpretation or enforcement of this Agreement. In the event of
a dispute relating to interpretation or enforcement of this
Agreement, the prevailing party shall be awarded all reasonable
attorneys' fees and costs incurred.
6.8. Presumption. This Agreement shall not be construed against
any party due to the fact the Agreement was drafted by that
party.
6.9. Further Action. The Parties hereto shall execute and
deliver all documents, provide all information and take or
forbear from all such action as may be necessary or appropriate
to achieve the purposes of the Agreement.
6.10. Parties in Interest. Nothing herein shall be construed
to be to the benefit of any third party, nor is it intended that
any provision shall be for the benefit of any third part'.
6.11. Savings Clause. If any provision of this Agreement, or
the application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
hereby.
6.12. Confidentiality. The Parties shall keep this Agreement
and its terms confidential, but any party may make such
disclosures as it reasonably considers are required by law or
necessary to obtain financing. In the event that the
transactions contemplated by this Agreement are not consummated
for any reason whatsoever, the Parties agree not to disclose or
use any confidential information they may have concerning the
affairs of other Parties, except for information which is
required by law to be disclosed. Confidential information
includes, but is not limited to, financial records, surveys,
reports, plans, proposals, financial information, information
relating to personnel contracts, stock ownership, liabilities and
litigation. The Parties agree that Exhibit A contains
confidential and proprietary information and description of trade
secrets. The Parties agree to keep all of the information in
Exhibit A confidential and treat the information in Exhibit A as
a trade secret.
6.13. Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party
hereto shall bear its own costs and expenses (including
attorneys' fees), except as set forth in the Escrow Agreement.
6.14. Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or
future laws effecting during the term hereof, such provision
shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid and unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in nature in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable.
6.15. Counterparts and Facsimile Signatures. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument. For purposes of this Agreement,
facsimile signatures shall be treated as originals.
6.16. Effective Date. Regardless of the date(s) on which
this Agreement is signed, the Effective Date of this Agreement is
October 26, 2001.
Buyer Seller
by: /s/ Xxxxx Xxxxxxx by: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxx Xxxxxx
President President
iWizard Holding, Inc. Diamondback Voicemail
Systems, Inc.
by: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Individually
EXHIBIT A
List of iWizard Technology
CONFIDENTIAL AND PROPRIETARY
Exhibit A - iWizard Technology
Technological Overview
The iWizard Technology allows electronic mail (or email) and
expands this common service into a full-fledged content delivery
system.
To accomplish this task iWizard consists of a series of
proprietary technologies that allow the end-users of iWizard
services to use existing personal computer applications to
retrieve, view, listen to, and interact with what has been, prior
to iWizard, a static "one-way" medium. These advancements are
due to a variety of iWizard developed applications and
methodologies:
Voicemail to Internet streaming file conversion: Telephone based
voicemail systems are typically built around a wide variety of
"header-less" file types commonly referred to as ".vox" files.
Unlike common computer sound formats these files have no header
from which a computer program can obtain pertinent data in
regards to codecs used, and recording density. Without this
information a computer is unable to determine the information
needed to properly play the file through a computer sound card.
Specialized software is required and codecs must be specifically
determined per file in order for a file of this type to be played
with a personal computer. iWizard's technology allows us to take
a ".vox" voicemail file, find a closely matching computer ".wav"
format, convert to this new format, and add a "header" to enable
a standard computer wav file player to play the file. These .wav
files are then further compressed using the DSP GROUP "True
Speech" or the XXXXX.xxx compressed streaming formats. These
greatly compressed formats are built around the characteristics
of the human speaking voice. This entire conversion, from
initial voicemail type .vox file format to standard .wav format
to compressed .wav or .asf streaming format, is handled
programmatically using iWizard developed technology. This
technology allows iWizard to record speech via any telephone
anywhere in the World and play back via email (also anywhere in
the World) in a manner of seconds.
Email Content Delivery: Delivering content beyond simple
messages using common email requires that each email provider's
abilities and limitations be taken into consideration. Abilities
of email providers vary widely per ISP. Email clients such as MS
Outlook and Lotus Notes each also have their own peculiarities in
regards to what can be delivered into customer inboxes. Another
aspect of iWizard's technological advances is the ability to pre-
determine what an email customer likely can and can't receive in
their email based on a variety of factors, These limitations arc
each catalogued and built around to deliver the "most" product to
each individual customer. iWizard tracks email capabilities per
ISP and also automatically logs what type of client/operating
system the end user is using to access his/her email. This is
very important to insure proper delivery and is an integral part
of iWizard's abilities.
Data driven model: All services of iWizard Holding, Inc. are
built upon a data driven model. MSSQL Server 7 tables are used
to provide a "backbone" from which to deliver, report upon, and
customize iWizard services. This data driven modeling is
essential to the success of all iWizard projects and services.
All data modeling is designed per service to allow complete
tracking and reporting per each customer/service. This data
tracking alone, represents hundreds of thousands of records, each
requiring automated querying and analysis. These tasks are
handled via custom built software applications specific to
iWizard products and services.
iWizard Technology utilizes both in-house developed and external
applications to deliver content via the email medium. These
tasks require specialized and proprietary procedures that take
iWizard well beyond the capabilities of any current email
delivery or email marketing concern. Our data, as collected,
also represents a tool in itself. iWizard has the capability to
closely monitor all aspects of a customer's use of our services
in a completely non-intrusive manner. This ability, combined
with the ability to deliver virtually any electronic media via
the email medium, represents the backbone of iWizard's
technological value to clients and potential clients.
The iWizard Technology includes:
1. Any and all technology relating to the subject matter
developed by Diamondback or Xxxxx (or his agents) relating
directly or indirectly to the subject matter described above.
2. Any trade secrets, confidential information, or proprietary
information held by Diamondback or Xxxxx (or his agents) relating
directly or indirectly to the subject matter described above.
3. Any computer software, code for computer software, machine
language relating to computer software, licensed, purchased, or
developed by Diamondback or Xxxxx (or his agents) relating
directly or indirectly to the subject matter described above.
4. Any patents held by Diamondback or Xxxxx (or his agents)
relating directly or indirectly to the subject matter described
above.
5. The rights to any patent applications relating directly or
indirectly to the subject matter described above.
6. Any trademarks and or trade names owned by Diamondback or
Xxxxx (or his agents) relating directly or indirectly to the
subject matter described above.
7. All rights or interests in the iWizard Technology.
8. All rights or interests in any modifications or advancements
to the iWizard Technology.
