LICENSE AGREEMENT
This
LICENSE AGREEMENT (this “Agreement”) is made
as of the 1st day of
April, 2010 (the “Effective Date”), by
and between CyberDefender Corporation, a California corporation (“Licensor”), and GR
Match, LLC, a Delaware limited liability (“Licensee”). Licensor
and Licensee may be referred to herein each individually as a “Party” and
collectively as the “Parties”.
A. “Affiliate” of a
Person shall mean an individual, corporation, limited liability company,
partnership, trust or other entity that, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such Person.
B. “Applicable Laws”
shall mean any applicable international, national, federal, state, local and
municipal laws, rules, regulations, standards or orders.
C. “Business Day” means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday in the United States or a day on which banking institutions in the State
of New York are authorized or required by law or other government action to
close.
D. “Channels” shall mean
those channels of distribution listed on Schedule A
hereto.
E. “Confidential
Information” shall have the meaning set forth in Section
8.3.
F. “Domestic Roll-Out
Date” shall mean the earlier of (i) the date upon which the aggregate
gross revenues, net of any returns, refunds and chargebacks, received by
Licensee or its Affiliates from sales of the Products in the Domestic Territory
exceeds One Million Dollars ($1,000,000.00) or (ii) the date that is eighteen
(18) months following the date that Licensor has delivered to Licensee all
information, code, packaging and insert materials and other materials reasonably
necessary for Licensee and/or the Manufacturer (as defined below) to manufacture
and/or reproduce the Products in tangible medium in the Domestic Territory,
including, without limitation, (A) any programming or modification of the
Products necessary or reasonably requested by Licensee to be able to port the
Software to the media in which it will be distributed and for the Products to be
able to be installed properly from such medium, (B) master gold copies of the
Products, (C) fixes for errors or defects that prevent the production of the
Products in a tangible medium, and (D) all technical data, specifications and
other technical information relating to the Software which is reasonably
requested by Licensee and/or the Manufacturer.
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G. “Domestic Territory”
shall mean the United States of America as reflected on Schedule A attached
hereto.
H. “Foreign Country”
shall have the meaning set forth in Section 4.5(b).
I. “International Roll-Out
Date” shall mean the earlier of (i) the date upon which the aggregate
gross revenues, net of any returns, refunds and chargebacks, received by
Licensee or its Affiliates from sales of the Products in the International Territory
exceeds One Million Dollars ($1,000,000.00) or (ii) the date that is eighteen
(18) months following the date upon which Licensor has, at Licensee’s request
pursuant to Section 4.3 hereof, taken all commercially reasonable actions in
order to facilitate the sale and use of the Products in at least three
(3) countries (selected by Licensee in its sole discretion by delivering
written notice to Licensor of such selections) in the International Territory in
which Licensee will sell and/or distribute the Products, including, without
limitation, (A) translating the Software and any tutorials, guides, instructions
and other materials which are included with the Products to the local language
in such three (3) countries, and (B) modifying, reprogramming and otherwise
reconfiguring the Software to be compatible with the local legal, system and
technical requirements of such three (3) countries, including, without
limitation, reconfiguring each selling suite which is included in the
Software to reflect Licensee as the merchant of record upon any renewal of an
applicable Product.
J. “International
Territory” shall mean those territories listed under the heading
“International Territory” as set forth on Schedule A attached
hereto.
K. “Licensee Materials”
shall have the meaning set forth in Section 5.1.
L. “Live Tech Services”
shall mean Live Help Desk 24/7 technology support services (or variations
thereof) or similar live technology support services.
M. “Person” shall mean an
individual, corporation, limited liability company, partnership, trust or other
entity.
N. “Product” or “Products” shall mean
any individual product or services or the group of products or services
developed, owned and/or controlled by Licensor or its Affiliates which comprise
the CyberDefender line of antivirus and Internet security products or services
(whether now existing or hereafter developed or acquired or offered), whether or
not marketed, licensed or sold under the Trademarks, including, without
limitation, CyberDefender Early Detection Center, CyberDefender Early Detection
Center Family Pak, CyberDefender Registry Cleaner, CyberDefenderCOMPLETE,
CyberDefenderPREMIUM, CyberDefenderULTIMATE, CyberDefender Identity Protection
Services, MyIdentityDefender Toolbar, CyberDefenderFREE and Live Tech Services
(subject to Sections 4.5(a) and (b) below) and including any private label
branding or localized versions of any individual product, service or group of
products, services which comprise the CyberDefender line of antivirus and
Internet security products or services (whether now existing or hereafter
developed or acquired or offered), including, without limitation, “MyCleanPC”
and “DoubleMySpeed.”
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O. “Product IP” shall
mean (i) all of the patents, proprietary information, copyrights, trademarks,
trade dress, moral rights, design rights, and other intellectual or industrial
property rights recognized or protectable anywhere in the world, whether now
existing or hereafter created or arising, relating to or necessary for the
manufacture, use, sale, export, import, marketing, reproduction, distribution,
modification or display of any of the Products and/or their packaging,
including, without limitation, the Trademarks, and those inventions described in
the patent applications identified in Schedule B hereto;
(ii) all software, websites, portals, manuals, instruction guides, FAQs, content
and other tangible embodiments of or that comprise any of the Products; (iii)
any Internet website domain names and URLs relating to markets in the
International Territory (other than
xxx.xxxxxxxxxxxxx.xxx); and (iv) all registrations, initial
applications, renewals, extensions, continuations, divisions or reissues thereof
now or hereafter existing (including any intellectual property rights in any of
the foregoing).
P. “Royalty” shall have
the meaning set forth in Section 2.1.
Q. “Software” shall have
the meaning set forth in Section 3.2.
R. “Term” shall have the
meaning set forth in Section 11.1.
S. “Territory” shall mean
the Domestic Territory and the International Territory,
collectively.
T. “Trademarks” shall
mean all trademarks, service marks, brands, logos, slogans and other
symbols owned or controlled by Licensor or its Affiliates, whether at common law
or registered and whether now existing or hereafter developed or used,
(inclusive of any pending trademark applications and registrations owned or
controlled by or licensed to Licensor or an Affiliate and used or usable with
respect to any of the Products, including, without limitation, those trademarks
set forth on Schedule
C hereto.
Other capitalized terms used herein
shall have the meanings ascribed to them in the applicable sections hereof
unless specifically provided otherwise.
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(a) Licensor,
upon becoming aware of any infringement or misappropriation of any Product IP or
any actual or proposed activity by a third party in violation of or that
contravenes the exclusive license rights granted to Licensee under this
Agreement shall promptly notify Licensee in writing of such act.
(b) Promptly
following Licensor’s becoming aware of any (i) actual or proposed activity by
any Person that violates or would (if done or authorized by the Licensor)
contravene or be inconsistent with an exclusive license right granted to
Licensee under this Agreement, including any activities involving grey or
counterfeit units of any Product in the Channels in the Territory (a “License Contravention
Activity”) or (ii) actual or proposed infringement or misappropriation of
any Product IP that is material or likely to adversely diminish the value of the
Products or the exclusive license granted to Licensee hereunder (an “Infringement”),
Licensor shall, at its sole cost and expense, promptly evaluate the License
Contravention Activity or Infringement, as the case may be, with competent
counsel and make a reasonable determination, based on counsel’s advice, as to
whether it is desirable and prudent to make a demand or bring an action to stop
the License Contravention Activity or Infringement. Licensor shall,
at its sole cost and expense, vigorously and diligently prosecute such License
Contravention Activity or Infringement, as the case may be, with counsel
reasonably satisfactory to Licensee and will have control of such action,
including any compromise or settlement thereof; provided, however, that Licensor
shall not settle any such action without the prior written consent of Licensee
in the event such settlement would adversely affect, limit or conflict with the
rights granted to Licensee hereunder or require Licensee to take or withhold
from taking any action that is inconsistent with this Agreement or to pay any
monies. In any action by Licensor against any License Contravention
Activity or Infringement, as the case may be, Licensee shall have the right to
participate in (but not control) the prosecution of such action and to retain
its own counsel at Licensee’s own expense.
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(c) Notwithstanding
the foregoing, if Licensor fails to take action against a License Contravention
Activity or Infringement, as the case may be, within thirty (30) days after
Licensor’s becoming aware of the existence of such activity (whether by written
notice from Licensee or otherwise) or Licensor otherwise fails to vigorously and
diligently prosecute such action after it commences, then Licensee shall have
the right to take action against such License Contravention Activity or
Infringement, as the case may be, in Licensee’s name and/or on behalf of
Licensor if Licensor is already a party to the action and, if Licensee elects to
prosecute such action, shall have full control of the prosecution and resolution
thereof, in which case Licensor shall reimburse Licensee for all reasonable
costs and expenses incurred by Licensee in connection with pursuing such action
net of any damage awards and recoveries actually made by the Licensee from the
action. To the extent necessary in connection with the previous
sentence, Licensor hereby grants to Licensee the right to make demands and bring
actions to mitigate and/or curtail a License Contravention Activity or
Infringement, as the case may be.
(d) At
the request and expense of the Party taking action against a License
Contravention Activity or Infringement, as the case may be, the other Party
agrees to provide the requesting Party with all necessary assistance and
cooperation that the requesting Party reasonably requests. The Party
that brings an action against the License Contravention Activity or
Infringement, as the case may be, shall be entitled to retain any and all
monetary awards obtained as a result of such action, including any damages and
attorneys’ fees. In the event the Parties
jointly pursue any Infringement, all monetary awards obtained as a result
of such action, including any damages and attorneys’ fees, shall first be
applied to cover each Party’s costs and
expenses incurred in connection with such action, and the balance of such
monetary awards shall be split evenly between the Parties.
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(a) It
is contemplated that Licensee, directly or through its agents and contractors,
may need to localize the Products and related materials and branding to comport
with the language, laws and/or customs of the International Territory. For that
purpose, Licensor agrees, not later than thirty (30) days following request by
Licensee, to take all commercially reasonable actions in order to facilitate the
sale and use of the Products in the requested local market in the International
Territory, including, without limitation, (i) translating the Software and any
tutorials, guides, instructions and other materials which are included with the
Products to the local language of any jurisdictions in which Licensee will sell
and/or distribute the Products, (ii) modifying, reprogramming or otherwise
reconfiguring the Software to be compatible with the local legal, system and
technical requirements of such jurisdictions, including, without limitation,
reconfiguring each selling suite which is included in the
Software to reflect Licensee as the merchant of record upon any renewal of an
applicable Product, and (iii) assist with the creation of advertising and
promotional materials for Products to be distributed in the International
Territory.
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(b) Prior
to incurring any costs or expenses in connection with the localization of any
Products with respect to an applicable local market, Licensor shall deliver to
Licensee a budget which sets forth in reasonable detail the expected third party
costs of localizing the Products in such local market, which budget shall be
subject to Licensee’s written approval. The budget may be modified
with Licensee’s prior written approval (which shall not be unreasonably
withheld). Licensee shall reimburse Licensor for the actual third
party costs incurred by Licensor, up to the amounts set forth in the applicable
Licensee approved budget, in connection with such localization of the Products
in each applicable local market within thirty (30) days of Licensee’s receipt of
a reasonably detailed invoice (including receipts or other written evidence of
any applicable third party costs incurred by Licensor) (“Localization Reimbursement
Payments”). Notwithstanding the foregoing, in no event shall
Licensee be obligated to reimburse Licensor for any localization expenses in
excess of the following applicable limitations: (i) for localization
of any Products using the English language, Fifty Thousand Dollars ($50,000.00)
per each country in the International Territory (any such country, a
“Foreign
Country”); (ii) for localization of any Products using German or into any
language derived from Latin (e.g. Romance languages), One Hundred Thousand
Dollars ($100,000.00) per Foreign Country; and (iii) for localization using any
other language other than the languages specified in clauses (i) and (ii), One
Hundred Fifty Thousand Dollars ($150,000.00) per Foreign Country. If
a Product needs to be localized in a country where more than one language is
spoken, then Licensee shall reimburse Licensor up to the amount of the higher
reimbursement limitation for the localization expenses for the applicable
languages. For example, if a Product requires localization using both
English and French in Canada, the maximum reimbursement to be paid by Licensee
is One Hundred Thousand Dollars ($100,000.00).
(c) Subject
to the reimbursement limitations set forth in Section 4.3(b) above, fifty
percent (50%) of all Localization Reimbursement Payments shall be treated as
advances by Licensee which shall be applied against any future Royalties payable
to Licensor (whether during the year that the applicable Localization
Reimbursement Payment is paid or any subsequent year) with respect to sales of
the Product in the International Territory. In addition to the
foregoing, if Licensor exercises its right to buy-back and terminate the rights
granted to Licensee hereunder pursuant to Section 10 hereof, then an amount
equal to (i) the entire amount of Localization Reimbursement Payments paid by
Licensee to Licensor for all Foreign Countries from and after the date which is
six (6) months prior to the date of Licensor’s delivery of the Buy-Out Notice
(defined below), less (ii) any Localization Reimbursement Payments during such
period which have been previously applied against Royalties payable by Licensee
to Licensor (collectively, “Unapplied Localization
Reimbursement Expenses”), will be added to the Buy-Out Price (defined
below) and shall be paid by Licensor to Licensee at the Licensor Buy-Out Closing
(defined below) in addition to the Buy-Out Price.
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(a) Licensor
shall provide customer service and all product and technical support services
(Tier 1, Tier 2 and, if applicable, Tier 3 support) which are included as part
of an applicable Product, at Licensor’s sole cost and expense, for each customer
who purchases a Product from Licensee (or its sub-licensees or distributors) via
the applicable Channels (each, a “Licensee Customer”)
in the Domestic Territory, and Licensor shall cooperate with Licensee as
reasonably requested by Licensee to establish such customer service
capabilities. Licensor
shall have the exclusive right to promote, offer to sell and sell, or
cause a third party designated by Licensor in its sole and absolute discretion
to promote, offer to sell and sell, Live Tech Services to each Licensee Customer
who purchases a Product in the Domestic Territory, and Licensor (or its designee) shall
be entitled to retain the entire amount of any revenues earned in connection
with the provision or sale of such Live Tech Services.
(b) With
respect to each Foreign Country in which Licensee Markets the Products, Licensee
shall determine in its sole discretion the terms and conditions on which
Licensee or one or more third parties designated by Licensee (which may include
Licensor as provided below) (each, a “Licensee Designated Customer
Service Provider”) shall provide, on terms and conditions satisfactory to
Licensee and such Licensee Designated Customer Service Provider, customer
service, technical and product support services and Live Tech Services for each
Licensee Customer who purchases a Product in such Foreign Country via the
applicable Channels. If Licensee elects to Market Products in an
applicable Foreign Country, Licensee shall first offer to engage Licensor as the
Licensee Designated Customer Service Provider for such Foreign Country by delivering a
written request for services proposal to Licensor requesting Licensor to provide
Licensee
Customers with
customer service, technical and product support services and Live Tech
Services as specified by Licensee in such request for services proposal (an
“Offer
Notice”). The
Offer Notice shall state in reasonably specific detail the type of service,
support and other parameters Licensee desires Licensor to
provide. Licensor shall indicate its desire to provide those services
requested by Licensee in the Offer Notice and to be engaged as the
Licensee Designated Customer Service Provider for the applicable Foreign
Country, subject to terms
and conditions
which will be mutually agreed upon by Licensor and
Licensee, by delivering written notice of the same not later than ten (10)
Business Days following Licensor’s receipt of the Offer Notice
(the “Licensor
Acceptance Period”). If Licensor has notified Licensee of its
desire to be engaged as the Licensee Designated Customer Service Provider for
the applicable Foreign Country prior to the expiration of the Licensor
Acceptance Period, the Parties shall negotiate in good faith to enter into a
customer service or similar agreement on terms and conditions mutually
acceptable to the Parties with respect to the customer service, technical and
product support services and Live Tech Services requested by Licensee in the
applicable Foreign Country (a “Service
Agreement”). In the event the Parties enter into such Service
Agreement within the thirty (30) day period, Licensor shall, no later than sixty
(60) days following the expiration of the Licensor Acceptance Period or such
other date agreed to by Licensor and Licensee in the Service Agreement, commence
providing such agreed upon customer service and all product and technical
support services (including Tier 1, Tier 2 and, if applicable, Tier 3 support)
which are included as part the services under the Service
Agreement. In the event of a termination of a Service Agreement for
which Licensor is the Licensee Designated Customer Service Provider for an
applicable Foreign Country, Licensor shall cooperate with Licensee as reasonably
requested by Licensee in transitioning to the applicable replacement Licensee
Designated Customer Service Provider for such Foreign Country.
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(c) If
Licensor does not notify Licensee of its desire to be the Licensee Designated
Customer Service Provider in a Foreign Country prior to the expiration of an
applicable Licensor Acceptance Period or if the Parties fail to enter into a
mutually acceptable Service Agreement for an applicable Foreign Country within
the time specified in Section 4.5(b), (i) Licensee shall have the right, in its
sole discretion, to designate itself or any other Person as the Licensee
Designated Customer Service Provider for such Foreign Country, and (ii)
Licensee, or its designee, shall have the exclusive right to promote, offer to
sell and sell, or cause a third party designated by Licensee in its sole and
absolute discretion to promote, offer to sell and sell, Live Tech Services to
each Licensee Customer who purchases a Product (other than solely Live Tech
Services) in such Foreign Country. Licensee shall not have the right
to offer solely Live Tech Services to a Licensee Customer within a Foreign
Country unless Licensee (i) had initially Marketed Products (other than Live
Tech Services) to such Licensee Customer or (ii) first offers Licensor the right
to provide such services in accordance with the terms of Section 4.5(b)
above. Any Licensee Designated Customer Service Provider in one
Foreign Country may be designated by Licensee as a Licensee Designated Customer
Service Provider in one or more other Foreign Countries subject to the right of
first offer to Licensor as provided in Section 4.5(b).
(d) Licensor
shall use its best efforts to cause its employees, agents and representatives to
provide any customer service, technical and product support services and/or Live
Tech Services which Licensor’s employees, agents and representatives provide to
any Licensee Customers in substantially the same manner as the customer service,
technical and product support and/or Live Tech Services, as the case may be,
which is offered to all other customers of Licensor and in all events consistent
with best industry practices. Licensor agrees that all customer
service, technical and product support functions, and Live Tech Services
provided by Licensor’s employees, agents or representatives to Licensee
Customers will be performed in a professional manner consistent with industry
standards and that all Licensor personnel engaged in fulfilling its customer
service technical and product support obligations will possess sufficient
qualifications and professional competency and experience to carry out the
applicable services provided by such personnel in accordance with the foregoing
standards and the terms and conditions of this Agreement. Licensee
shall have the right to monitor the customer service, product and technical
support and Live Tech Services provided by Licensor and conduct quality control
assessments of Licensee’s customer service, product and technical support and
Live Tech Services from time to time, provided that Licensee shall use
reasonable efforts to minimize the interference with Licensor’s business
operations in the performance of such monitoring.
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(e) Upon
the reasonable request of Licensee, for no additional consideration, Licensor
shall provide training to Licensee or its designee’s customer service and/or
technical and product support personnel who may from time to time provide
customer service with respect to any Products which are sold to Licensee
Customers in the International Territory.
(f) Licensor
shall use its best efforts to prevent its employees,
agents, representatives and designees who provide customer service,
technical and product support and/or Live Tech Services to Licensee Customers
from time to time from incentivizing or otherwise causing Licensee Customers
from cancelling or returning any applicable Products which they have purchased
from Licensee (or its sub-licensees or distributors) or otherwise attempting to circumvent or deny any
customer’s purchase or renewal of any Products
from Licensee (or its sub-licensees or distributors); provided, however, that nothing in
this Section 4.5(f) shall be deemed to permit or require Licensor or its
employees, agents and representatives to violate Applicable
Law. Subject to the preceding sentence, Licensor shall have the
exclusive right to renew subscriptions for Products originally sold to Licensee
Customers in the Domestic Territory. Licensee shall have the
exclusive right to renew subscriptions for Products originally sold to Licensee
Customers in the International Territory.
(g) Licensee
shall have the right, upon at least thirty (30) days prior written notice to
Licensee (but no more than twice each year), to audit the books, records, call
logs and call recordings of Licensor relating to Product orders, renewals and
cancellations by Licensee Customers to review whether any Licensee Customers who
have cancelled (or not renewed, solely with respect to the sales in the
International Territory) their orders for Products have subsequently purchased
Products directly from Licensor (or its licensees or distributors other than
Licensee). Licensee shall conduct any such audit during normal
business hours and shall use reasonable efforts to minimize the interference
with Licensor’s business operations. If any such audit reveals more
than a de minimus number of Licensee Customers who have cancelled (or not
renewed, solely with respect to the sales in the International Territory) their
orders for Products and have subsequently purchased Products directly from
Licensor (or its licensees or distributors other than Licensee), then, in
addition to any other remedies available to Licensee, Licensee may offset
Licensee’s reasonable out-of-pocket costs of conducting the audit (excluding any
travel and/or accommodations expense incurred by Licensee or its representative
in connection therewith) against any Royalty Payments due to Licensor with
respect to sales in the International Territory.
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(a) this
Agreement involves intellectual property rights and Licensee shall be entitled
to all benefits and protections afforded by Section 365(n) of the Bankruptcy
Code and any successor or similar statutes, including the right to elect to
retain the rights under this Agreement and to receive, without additional cost,
a licensed copy of all embodiments of the Products (but subject to any
restrictions on Licensor’s right to disclose any such embodiments which are not
proprietary to Licensor), such as source code for the Software (including
current and all other versions still supported for each Product), instructions
for compiling the code, technical information sufficient to allow a reasonably
trained programmer to understand, manipulate, support, maintain and modify the
Software, and a list of tools and third party software required to operate, use,
support or manipulate the Software (collectively, the “Product
Materials”);
(b) with
respect to subsection (a) above, the rights to Trademarks granted hereunder
shall be deemed severable in connection with the application of Section 365(n)
to the extent trademark rights hereunder are not within the purview of such
section;
(c) upon
the occurrence of an Extraordinary Event, Licensee shall be entitled to receive
not later than ten (10) days of written request, a full copy of the Product
Materials;
(d) Licensor
will, upon Licensee’s request and at Licensee’s expense for third party escrow
fees, deposit the Product Materials in a third party escrow arrangement for
release to Licensee upon the occurrence of an Extraordinary Event, and will
update such Product Materials twice each year with updated Software and
documentation;
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(e) Product
Materials received by Licensee pursuant to Sections 4.10(a) and (c) shall be
used by Licensee and its Affiliates and contractors solely to provide
maintenance and support for the Products sold to Licensee Customers and continue
to Market, enhance and improve the Products; and
(f) Licensee
shall hold any Product Materials in the strictest confidence and treat such
Product Materials as Confidential Information (as defined below) and will not
disclose any Product Materials to third parties outside of its organization
without Licensor’s prior written consent.
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(a) no
consent or approval is required by any third party for Licensee to enter into
this Agreement or for Licensee to exercise the rights granted hereunder;
and
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(b) there
are no pending or threatened actions, suits or claims against Licensee or any of
Licensee’s Affiliates that would impair Licensee’s ability to enter into this
Agreement.
(a) it
has not entered into any oral or written contract or negotiations with any third
party which would impair the rights granted to Licensee under this Agreement, or
limit the effectiveness of this Agreement, nor is it aware of any claims or actions
which may limit or impair any of the rights granted to Licensee
hereunder;
(b) all
trademarks, logos, copyrights, materials and work product provided by Licensor
to Licensee (which is not created or provided by Licensee under this Agreement)
are owned by, and/or exclusively licensed to Licensor and, to Licensor’s
knowledge, do not infringe or violate any copyrights, trademarks, trade secrets,
patents or other proprietary rights of any kind belonging to any third party or
violate any right of privacy, right to publicity, misappropriate anyone’s name
or likeness or contain any defamatory, obscene or illegal material;
(c) it
and all Product IP is now in compliance in all material respects with all local,
state, and federal laws, rules and regulations applicable to its business and
the advertising, marketing, sale and distribution of the Products, including
without limitation, those of the Federal Telephone Consumer Protection Act
(TCPA), the Federal Consumer Fraud and Abuse Prevention Act, Federal Trade
Commission, the Federal Communications Commission, Payment Card Industry Data
Security Standards, and data security and privacy laws, as such may be amended
from time to time, and any other state or federal regulatory agency that has
jurisdiction over Licensor’s business activities or the Products of Product
IP;
(d) no
consent or approval is required by any third party for Licensor to enter into
this Agreement or to grant the rights to the Product IP set forth herein or for
Licensee to exercise the rights granted hereunder (including with respect to any
third party software, content or other property included in the
Products);
(e) the
Product IP is valid and subsisting in all material respects;
(f) Licensor
has all necessary rights and licenses to grant to Licensee the rights granted
under this Agreement and for Licensee to exercise such rights in the manner
contemplated hereunder;
(g) except
for liens in favor of Licensee, there are no liens, charges or encumbrances of
any type, kind or nature with respect to the Products and/or the Product
IP;
(h) there
are no pending or, to Licensor’s knowledge, threatened actions, suits or claims
against Licensor or any of Licensor’s Affiliates relating to the Products and/or
the Product IP, and no third party has offered to license pending or issued
patents in connection with the Products or sent a demand alleging that any of
the Products or the use thereof infringe the patent or other intellectual
property rights of any third party;
(i) no
actions, suits or claims have ever been brought against Licensor or any of its
Affiliates relating to the Products and/or the Product IP;
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(j) Licensor
has not heretofore assigned, transferred or otherwise disposed of any right,
title, interest or license which Licensor owns or controls related to the
Products or the Product IP in a manner that would conflict with this
Agreement;
(k) Licensor
is not in default in any material respects under any agreement related to the
Products and/or the Product IP;
(l) the
Software will conform to Licensor’s current published specifications when
installed and will be free of defects which affect system performance;
and
(m) the
Software will be free of programming code, devices or other software routines
(e.g., viruses, Trojan horses, worms, software locks, drop-dead devices, back
doors, time bombs) that are designed to disrupt the use of the Software or any
system with which the Software operates, or destroy or damage data or make data
inaccessible or delayed.
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(a) The
Party entitled to indemnification under this Article 7 (the “Indemnified Party”)
will provide the Party obligated to provide indemnification under this Article 7
(the “Indemnifying
Party”) with
prompt notice of any action for which its seeks indemnification; provided that
the failure to do so will not excuse the Indemnifying Party of its obligations
under this Article except to the extent prejudiced by such failure or
delay.
(b) The
Indemnifying Party will defend, with counsel reasonably satisfactory to the
Indemnified Party, at the sole cost and expense of the Indemnifying Party, such
action in all related proceedings, which proceedings will be vigorously and
diligently defended or prosecuted by the Indemnifying Party to a final
conclusion or will be settled at the discretion of the Indemnifying Party (but
only with the consent of the Indemnified Party in the case of any settlement
that provides for any relief other than the payment of monetary damages, or
which admits guilt, liability or culpability on the part of the Indemnified
Party or which could be reasonably expected to have an adverse impact on the
Indemnified Party’s business operations or reputation). The
Indemnifying Party will have control of such defense and proceedings, including
any compromise or settlement thereof (subject to the preceding sentence),
provided, however, that if (i) the Indemnifying Party fails to vigorously and
diligently defend, prosecute or settle any action (subject to the Indemnified
Party’s approval as provided above), (ii) the claim for indemnification relates
to or arises in connection with any criminal or quasi-criminal proceeding,
action, indictment, allegation or investigation involving an Indemnified Party,
(iii) the action seeks an injunction or equitable relief against the
Indemnified Party or (iv) the Indemnified Party has been advised by counsel that
a reasonable likelihood exists of a conflict of interest between the
Indemnifying Party and the Indemnified Party, then the Indemnified Party will
have: (a) the right to defend, at the sole cost and expense of the Indemnifying
Party, the action by all appropriate proceedings, which proceedings will be
defended or prosecuted by the Indemnified Party in a reasonable manner and in
good faith or will be settled at the discretion of the Indemnified Party (with
the consent of the Indemnifying Party which shall not be unreasonably withheld);
and (b) full control of such defense and proceedings, including any compromise
or settlement thereof, provided, however, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole cost and expense of the
Indemnifying Party, provide reasonable cooperation to the Indemnified Party and
its counsel in contesting any action which the Indemnified Party is
contesting. In any action the defense of which the Indemnifying Party
shall assume, the Indemnified Party shall have the right to participate in (but
not control) the defense and resolution of such action and to retain its own
counsel at such Indemnified Party’s own expense, so long as such participation
does not interfere with the Indemnifying Party’s control of such
litigation.
20
(c) If
the Indemnifying Party notifies the Indemnified Party that it does not dispute
its liability to the Indemnified Party with respect to any action, then any
Losses suffered by the Indemnified Party as a result of the action will be
conclusively deemed a liability of the Indemnifying Party and the Indemnifying
Party will pay the amount of such Losses to the Indemnified Party on
demand. In the event any Indemnified Party should have a claim under
this Article 7 against any Indemnifying Party that does not involve a third
party action, the Indemnified Party will deliver notice of such claim with
reasonable promptness to the Indemnifying Party. The failure by any
Indemnified Party to give said notice will not impair such Party’s rights
hereunder except to the extent that an Indemnifying Party demonstrates that it
has been irreparably prejudiced thereby. If the Indemnifying Party
notifies the Indemnified Party that it does not dispute the claim described in
such notice, then any Losses suffered by the Indemnified Party in the amount
specified in the notice will be conclusively deemed a liability of the
Indemnifying Party and the Indemnifying Party will pay the amount of such Losses
to the Indemnified Party on demand. If the Indemnifying Party gives
notice to the Indemnified Party to the effect that the Indemnifying Party
disputes the claim, the Indemnifying Party and the Indemnified Party will
proceed in good faith to negotiate a resolution of such dispute, and if not
resolved through good faith negotiations within thirty (30) days of Indemnifying
Party’s notifying Indemnified Party of its dispute with the claim, the
Indemnified Party may pursue its other remedies hereunder, as it deems
appropriate.
(a) During
the Term of this Agreement and for a period of two (2) years thereafter, each
Party shall procure and maintain, at its sole cost and expense, in full force
and effect its own comprehensive general business liability insurance policy,
consistent with commercial practices or standards for similar industries,
insuring against any and all loss, liability or business interruption arising
from the obligations and activities of that Party hereunder including, without
limitation, those arising from, product liability, personal injury, wrongful
death or property damage. The coverage amount of such insurance
policy shall not be less than Five Million Dollars ($5,000,000.00) per
occurrence and Five Million Dollars ($5,000,000.00) in the
aggregate.
(b) During
the Term of this Agreement and for a period of two (2) years thereafter, each
Party shall procure and maintain Errors and Omissions/Professional Liability
including Media Liability insurance with a limit of not less than Five Million
Dollars ($5,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00)
in the aggregate and Cyberliability insurance with a limit of not less than Five
Million Dollars ($5,000,000.00) per occurrence and Five Million Dollars
($5,000,000.00) in the aggregate.
(c) The
insurance companies providing such insurance required under this Section 7.4
must have an A.M. Best rating of A-VII or better and be licensed or authorized
to conduct business in all fifty (50) of the United States. The
policies shall contain a waiver of subrogation with respect to the Indemnifying
Party and each policy shall contain all appropriate riders and endorsements
based on the nature of any Product manufactured or sold hereunder and its
intended use. Each Party shall name the other Party as an “additional
insured” and provide the other Party with originals or copies of certificates of
insurance so reflecting, and such insurance shall also provide, that the other
Party shall be notified in writing by the insurance carrier of any change or
modification in the policy (including termination), not less than thirty (30)
days prior to the effective date of such change (including
termination).
21
22
23
24
(a) If
Licensor delivers the Buy-Out Notice to Licensee during the Initial Exercise
Period then the Buy Out Price with respect to Licensee’s license rights
hereunder relating to the Domestic Territory or the International Territory, as
the case may be, shall be equal to the product of (X) the annualized gross
revenue earned by Licensee in connection with the sale and distribution of the
Products in the Domestic Territory or the International Territory, as the case
may be (based on the average gross revenue for the three (3) month period ended
as of the last Business Day of the last full month immediately preceding the
date of Licensor’s delivery of the Buy-Out Notice (the “Buy-Out Calculation
Date”) (“Licensee Annualized Gross
Revenue”), multiplied by (Y) a fraction, the numerator of which shall be
equal to one-half (1/2) of the enterprise value of Licensor as of the Buy-Out
Calculation Date and the denominator of which shall be equal to the aggregate
gross revenue of Licensor for the trailing twelve (12) month period ended as of
the end of the most recent fiscal quarter of
Licensor. Notwithstanding the foregoing, the Buy-Out Price for the
Initial Exercise Period shall not be less than an amount equal to the factor of
1.5 multiplied by Licensee Annualized Gross Revenue from the sale and
distribution of the Products in the Domestic Territory or the International
Territory, or both, as the case may be (the “Minimum Initial Buy-Out
Price”).
(b) For
example, if (i) Licensor delivers a Buy-Out Notice during the Initial Exercise
Period with respect to the Domestic Territory on April 15, 2013; (ii) the
aggregate gross revenue earned by Licensee in connection with the sale and
distribution of the Products in the Domestic Territory for the three (3) month
period ended March 31, 2013 (the Buy-Out Calculation Date) equals
$15,000,000.00; (iii) the enterprise value of Licensor as of March 31, 2013
equals $240,000,000.00 and (iv) Licensor’s aggregate gross revenue for the
twelve (12) month period ended as of March 31, 2013 equals $60,000,000.00, then
the Buy-Out Price would be calculated as follows:
Buy-Out Price = ($15,000,000 x 4) x
((.5 x 240,000,000)/60,000,000)
= $120,000,000
25
(c) If
the Parties cannot agree on the Buy-Out Price upon exercise of Licensor’s
Buy-Out Option during the Initial Exercise Period within thirty (30) days
following Licensor’s delivery of the Buy-Out Notice, then within ten (10) days thereafter, the Parties
shall submit the calculation of the Buy-Out
Price to a certified public
accounting firm mutually acceptable to the Parties (or, if they are unable to
agree within such ten (10) day
period, then to a certified
public accounting firm
selected by the Los Angeles office head of Ernst & Young) (the “Neutral
Auditor”). Each of the Parties agrees to execute, if requested by the
Neutral Auditor, an engagement letter reasonably satisfactory to such
Party and to provide any
documents or financial statements reasonably requested by the Neutral Auditor in
connection with the calculation of the Buy-Out Price. The Neutral Auditor shall
act as an arbitrator to determine the Buy-Out
Price. The calculation
of the Buy-Out Price by the Neutral Auditor shall be final and binding
upon the Parties; provided, however, that in no event shall the Buy-Out Price be
less than the Minimum Initial Buy-Out Price.
(a) If
the Buy-Out Notice is delivered at any time following the expiration of the
Initial Exercise Period, the Buy-Out Price shall be equal to (i) seventy five
percent (75%) of the fair market value (“FMV”) (as determined
below) of Licensee’s rights hereunder relating to the Domestic Territory,
International Territory, or both, as the case may be, if the Buy-Out Notice is
delivered within the ninety (90) day notice period prior to the first Exercise
Period Anniversary Date or (ii) one hundred percent (100%) of the FMV of
Licensee’s rights hereunder relating to the Domestic Territory, International
Territory, or both, as the case may be, if the Buy-Out Notice is delivered
within the ninety (90) day notice period prior to any subsequent Exercise Period
Anniversary Date. Notwithstanding the foregoing to the contrary, in
the event Licensor’s Buy-Out Option is exercised following the expiration of the
Initial Exercise Period, the Buy-Out Price shall not be less than an amount
equal to the factor of 3.0 multiplied by Licensee Annualized Gross Revenue from
the sale and distribution of the Products in the Domestic Territory or the
International Territory, or both, as the case may be.
(b) FMV
shall be the value of the Licensee’s rights which are subject to the Buy-Out
Notice as of the specified Exercise Period Anniversary Date (i) as determined by
the mutual agreement of Licensor and Licensee or (ii) if Licensor and Licensor
are unable to agree upon the FMV within thirty (30) days after the specified
Exercise Period Anniversary Date, then the FMV shall be determined by an
independent appraiser who has experience in determining the fair market value of
licensing rights similar to the rights granted to Licensee hereunder which
appraiser shall be selected jointly by Licensor and Licensee. The
determination of the fair market value by that appraiser shall be binding and
conclusive on all parties to this Agreement. If Licensor and Licensee
are unable to agree on the selection of an appraiser within thirty (30) days,
Licensor and Licensee shall then have ten (10) days to each select an
independent appraiser who has experience in determining the value of licensing
rights. The two appraisers so selected shall select a third appraiser
who has experience in determining the value of licensing rights and whose
appraisal shall be conclusively deemed to be the FMV and shall be binding on the
parties. Each appraiser selected hereunder shall be instructed to
complete the determination of FMV not later than thirty (30) days following
their engagement by the Parties and to take into account the intellectual
property rights and other rights and assets being transferred to Licensor
(including any inventory of Licensee) upon the buy-out of Licensee’s rights, in
addition to the value of the license rights. Each Party shall bear
the cost of its selected appraiser, and the Parties shall split equally the cost
of any jointly selected appraiser or a third appraiser, if
required.
26
(a) The closing (the “Licensor Buy-Out
Closing”) of the
transactions in connection with Licensor’s exercise of Licensor Option shall occur at such place and date as Licensee and Licensor may agree in writing but in no event
later than the later of (i)
one hundred twenty (120)
days after Licensor’s delivery of the
Buy-Out Notice or (ii) determination of the Buy-Out
Price by the auditor or appraiser, as the case may be, pursuant to Sections 10.2
or 10.3, as the case may be (the “Buy-Out Closing
Date”). Any portion of the Buy-Out Price which
is payable in cash shall be paid by Licensor at the Buy-Out Closing Date
by wire transfer of immediately available funds to a bank account designated by
Licensee. Any portion
of the Buy-Out Price which is payable in common stock of Licensor shall be paid
by Licensor’s delivery of stock certificates (or other written evidence
satisfactory to Licensee) at the Buy-Out Closing Date representing the number of shares of
common stock which Licensee has agreed to accept in connection with Licensor’s
payment of the Buy-Out Price. From and after the effective
date of such termination, this Agreement shall continue in full force and effect
with respect to any portion of the Territory not subject to the exercise of
Licensor’s Buy-Out Option in accordance with this Section 10.6.
(b) On
the Buy-Out Closing Date, Licensee shall (i) transfer to Licensor all of
Licensee’s Product inventory to be sold in the Domestic Territory, the
International Territory, or both, as the case may be, which is subject to
Licensor’s exercise of Licensor’s Buy-Out Option; (ii) assign and transfer all
of Licensee’s right, title and interest in and to any Licensee Materials used by
Licensee in the Domestic Territory, the International Territory, or both as the
case may be (excluding any non-Product specific trade secrets, processes,
templates, or other creative items which are used by Licensee in connection with
its business and/or any Partner Materials) to Licensor, without any continuing
liability of Licensee and only to the extent such rights are transferrable (and
subject to any required third party consents which shall be the responsibility
of Licensor to obtain); and (iii) to the extent permitted by Applicable Law,
provide Licensor with reasonable access to Customer Information then in
Licensee’s possession or control solely for the purposes of enabling Licensor to
provide ongoing customer service, product and technical support and subscription
renewals to existing Licensee Customers following the Buy-Out Closing Date. If
any Licensee Materials cannot be assigned to Licensor, Licensee shall grant to
Licensor, subject to any required third party consents, an exclusive,
irrevocable, royalty-free license to use and exploit such Licensee Materials
following the termination hereof for so long as Licensee has such
rights. In addition to the foregoing, Licensee shall use commercially
reasonable efforts to assign and transfer to Licensor all of Licensee’s rights
under any third party agreements (to the extent transferable) entered into by
Licensee with respect to the Products sold and the services provided under this
Agreement relating to the Domestic Territory or International Territory, or
both, as the case may be, which is subject to Licensor’s exercise of Licensor’s
Buy-Out Option.
27
(c) Licensor
shall have the right to request Licensee to provide management services in the
Domestic Territory, the International Territory, or both, as the case may be,
following the applicable Buy-Out Closing Date, which request shall be set forth
in the applicable Buy-Out Notice. Licensee and Licensor shall then
negotiate in good faith a management services agreement to be executed and
delivered by Licensee and Licensor on the Buy-Out Closing Date pursuant to which
the services shall be provided. Licensee shall not be obligated to
provide any such management services unless and until a management services
agreement is entered into between the Parties on terms and conditions
satisfactory to both Parties.
28
(a) Licensee
shall have the right to terminate this Agreement at any time with respect to the
Domestic Territory, International Territory or both, with or without cause, upon
at least ninety (90) days prior written notice to Licensor. Upon
Licensor’s receipt of any such notice, the licenses set forth herein shall
become non-exclusive and Licensor shall have the right to grant such licenses to
any other Person or Persons in the applicable territory, provided that any such
grant to another Person shall be non-exclusive during such ninety (90) day
notice period of termination and the Sell Off Period.
(b) If
Licensee elects to terminate this Agreement in accordance with this Section
11.4, Licensee agrees that for a period of one (1) year from the date of
termination, Licensee will not Market any antivirus and Internet security
products and services in the Channels in the Territory which are competitive
with the Products (as of the date of termination) without the prior written
consent of Licensor. Licensee agrees that the duration and geographic
scope of the non-competition provisions set forth in this Section 11.4 are
reasonable. In the event that any court determines that the duration
or the geographic scope, or both, are unreasonable and that such provision is to
that extent unenforceable, the Parties agree that the provision shall remain in
full force and effect for the greatest time period and in the greatest area that
would not render it unenforceable. The Parties intend that the foregoing
non-competition provision shall be deemed to be a series of separate covenants,
one for each and every state of the United States of America where this
provision is intended to be effective in the case of the Domestic Territory, and
one for each and every political subdivision of each and every Foreign Country
where this provision is intended to be effective in the case of the
International Territory.
29
13.1 Choice of Law. This Agreement will be
governed by and construed in accordance with the laws of the State of
California, without regard to its conflict of laws principles.
(a) The
rights and obligations of a Party under this Agreement may not be assigned by
such Party without the prior written consent of the other Party; provided,
however, that the entire rights and obligations of either Party under this
Agreement are transferable, without the prior consent of the other Party, to (i)
any person or entity that acquires all or substantially all of the business or
assets of a Party (the “successor”) (whether by purchase of assets, equity
merger or other corporate reorganization) and (ii) any Affiliate of such Party
as long as such Party agrees to remain liable for its obligations
hereunder. Any such Affiliate or successor (whether by purchase of
assets, equity merger or other corporate reorganization) to all or substantially
all of a Party’s business and/or assets shall assume all of such Party’s rights
and shall assume all of the obligations of such Party under this Agreement and
shall agree to perform all of that Party’s obligations under this Agreement in
the same manner and to the same extent as the original Party is required to
perform such obligations in the absence of such a succession. Assignment under
the terms of this paragraph shall not effect termination of the
Agreement. Notwithstanding the foregoing, Licensor shall not be
entitled to transfer all or any portion of its rights and obligations hereunder
to any third-party that is engaged in the business of selling consumer products
or any other products via direct response or via continuity methods without the
prior written consent of Licensee, which consent Licensee may withhold in its
sole and absolute discretion.
30
(b) Upon
Licensor’s prior written consent (which consent shall not be unreasonably
withheld), Licensee may, during the Term, grant sub-licenses of its rights to
Market the Products and use and otherwise exploit the Product IP in accordance
with the terms hereof to any Person for such sub-licensees’ use in connection
with the Marketing of the Products via the applicable Channels in the
Territory. Licensor’s failure to disapprove of a proposed sub-license
by Licensee within five (5) Business Days following Licensee’s written request
therefore shall be deemed Licensor’s approval thereof. Any consent by
Licensor with respect to Licensee’s grant of a sub-license under this Section
13.3(b) shall not be deemed to be a consent to any other sub-licenses or any
sub-license to any Person to whom such consent was not specified. Notwithstanding the
foregoing, Licensor’s
prior written consent shall not be required for
Licensee to Market the Products via its Channel partners.
(a) Except as otherwise provided in this
Agreement, Licensor and Licensee will attempt in good faith to
resolve through negotiation any dispute, claim or controversy arising out of or
relating to this Agreement. Either Party may initiate negotiations of
any dispute by providing written notice to the other Party, setting forth the
subject of the dispute. The recipient of such notice will respond in
writing within ten (10) calendar days with a statement of its position on and
recommended solution to the dispute. If the dispute is not resolved
by this exchange of correspondence, then representatives of each Party with full
settlement authority will meet at a mutually agreeable time and place within
thirty (30) calendar days of the date of the initial notice in order to exchange
relevant information and perspectives, and to attempt to resolve the
dispute.
(b) If
the dispute is not resolved by these negotiations, unless otherwise agreed to by
the Parties in writing, the matter will be submitted for mediation administered
by the Judicial Arbitration &
Mediation Service (“JAMS”) before a
single mediator who
shall have experience in the subject matter of the dispute. The
Parties shall jointly select the mediator within fifteen (15) days following the
commencement of such action. If the Parties cannot agree upon the
mediator within fifteen (15) days following the commencement of such action,
each Party shall select a mediator with experience in the subject matter of the
dispute, and the two (2) selected mediators shall select a third mediator
with such experience, who shall mediate such dispute. The Parties
shall share any fees or expenses of the mediator.
31
(c) If
the matter is not resolved through mediation, any dispute, claim or controversy
arising out of or relating to this Agreement, or the construction, validity,
enforcement or interpretation of this Agreement shall be resolved exclusively in
the state or federal courts sitting in the City of Los Angeles. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Los Angeles for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such proceeding is improper or is an
inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. The
parties hereby waive all rights to a trial by jury. If either party
shall commence a proceeding to enforce any provisions of this Agreement, then
the prevailing party in such proceeding shall be reimbursed by the other party
for its reasonable attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such proceeding.
32
13.12 No
Guarantee. Licensor acknowledges and agrees
that: (i) it is well-informed about the financial
risks associated with the direct response advertising industry and (ii) Licensee makes no warranty, expressed or
implied, as to the degree of success to be achieved by reason of the
airing or other
distribution of any Licensee Materials, nor shall Licensor seek to hold Licensee liable with respect
thereto. Licensee has not made, and does not hereby make,
any representation or warranty with respect to the level of sales and revenue to
be derived as a result of Licensee’s advertising, promotion and
marketing of the Products and/or Licensee’s airing or other distribution of
Licensee Materials.
Licensor recognizes and acknowledges that the
level of revenues from sales of the Products of any kind contemplated by this
Agreement is speculative. Licensor agrees that it shall not make any
claim, nor shall it seek to impose any liability upon Licensee based upon any claim that more sales,
revenues, media exposure or customers could have been obtained or better
business could have been done than was actually made or done by Licensee or its successors, licensees and
assigns, or that better business terms, prices or opportunities could have been
obtained.
IF TO
LICENSOR:
CyberDefender Corporation
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx Xxxxxxxx
WITH A COPY TO:
Xxxxxxxxxx & Xxxxx,
LLP
00000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn:
Xxxxx Xxxxxxxxx, Esq.
33
IF TO
LICENSEE:
GR Match,
LLC
c/o
Xxxxx-Xxxxxx LLC
0000
Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx
Xxxxxx, XX 00000
Fax (000)
000-0000
Attn:
General Counsel
WITH A
COPY TO:
GR Match,
LLC
c/o
Xxxxx-Xxxxxx LLC
0000
Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx
Xxxxxx, XX 00000
Fax (000)
000-0000
Attn:
President
WITH A
COPY TO:
Xxxxxxx
LLP
000 0xx
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
Fax (000)
000-0000
Attn:
Xxxxxx X. Xxxxxx, Xx., Esq.
[remainder
of page intentionally left blank]
34
“LICENSOR” | |||
CYBERDEFENDER
CORPORATION,
a
California corporation
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | |||
Title: Chief Executive Officer | |||
“LICENSEE” | |||
GR
MATCH, LLC,
a
Delaware limited liability company
|
|||
|
By:
|
/s/ Bennet Van xx Xxxx | |
Name: Bennet Van xx Xxxx | |||
Title: Manager |
35
Schedule
A
Territory
and Channels of Distribution
Territory
|
Channels of Distribution
|
“DOMESTIC
TERRITORY”
|
|
United
States
|
(1)
Retail stores (including online retail storefronts, such as online
websites of “brick and mortar” retailers, as well as strictly online
retailers such as Xxxxxx.xxx), kiosks, counters and other similar retail
channels of distribution
(2)
Television shopping channels (e.g. QVC and HSN) regardless of the delivery
means (e.g. broadcast, cable, satellite television, closed circuit,
etc.)
|
“INTERNATIONAL
TERRITORY”
|
|
Australia
Canada
China
Hong
Kong
India
Japan
New
Zealand
Russia
Taiwan
Western
Europe
Ø Andorra
Ø Austria
Ø Belgium
Ø Denmark
Ø Finland
Ø France
Ø Germany
Ø Greece
Ø Iceland
Ø Ireland
Ø Italy
Ø Liechtenstein
Ø Luxembourg
Ø Netherlands
Ø Norway
Ø Portugal
Ø Spain
Ø Sweden
Ø Switzerland
Ø United
Kingdom
|
(1)
Retail stores (including online retail storefronts), kiosks, counters and
other similar retail channels of distribution
(2)
Television shopping channels (e.g. QVC and HSN) regardless of the delivery
means (e.g. broadcast, cable, satellite television, closed circuit,
etc.)
(3)
Direct Response Television and Radio (including cable, satellite and
other means of distribution)
(4)
Internet websites (other than xxx.xxxxxxxxxxxxx.xxx) used in connection
with Marketing of the Products pursuant to clauses (1) through (3)
above.
|
36
Patents
|
1.
|
“Threat
Protection Network”, Application No. US2005/034205 (file date Sep. 22,
2005); and EPO Application No. 05821356.2 (file date April 23,
2007)
|
|
2.
|
“System
for Distributing Information Using a Secure Peer to Peer Network”,
Application No. US2005/034069
|
|
3.
|
“System
and Method for Operating an Anti-Malware Network on a Cloud Computing
Platform”, Provisional Application No. 61/221,477 (file date June 29,
2009)
|
37
Schedule
C
Trademarks
1.
|
CYBERDEFENDER,
United States Registration No.
3217137
|
2.
|
CYBERDEFENDER
X-RAY, Xxxxxx Xxxxxx Xxxxxx Xx.
00000000
|
0.
|
XXXXXXXXXXXXX,
Xxxxxx Xxxxxx Serial No. 77831517
|
4.
|
CYBERDEFENDER
REGISTRY CLEANER
|
5.
|
CYBERDEFENDER
EARLY DETECTION CENTER
|
6.
|
CYBERDEFENDER
REGISTRY CLEANER
|
7.
|
CYBERDEFENDERULTIMATE
2008
|
8.
|
CYBERDEFENDERCOMPLETE
2008
|
9.
|
CYBERDEFENDER
IDENTITY PROTECTION SERVICES
|
10.
|
MYIDENTITYDEFENDER
TOOLBAR
|
11.
|
CYBERDEFENDERFREE
|
12.
|
MYCLEANPC,
United States Serial No. 77961498
|
13.
|
FASTERPCFOR
DUMMIES
|
14.
|
PCSPEEDFOR
DUMMIES
|
38
Schedule
D
Products;
Royalty
Territory
in Which Product is Sold
|
Product
|
Amount
of Royalty
(per annual
subscription)
|
Any
jurisdiction within the Domestic Territory
|
CyberDefender
Early Detection Center
ØAntispyware and Antivirus PC
software with unlimited software and threat updates for 1
year. Tier 1 and Tier 2 technical support
included.
ØAll software updates
included
|
$2.50
|
CyberDefender
Early Detection Center Family Pak
ØAntispyware and Antivirus PC
software with unlimited software and threat updates for 1
year. Tier 1 and Tier 2 technical support
included.
ØAll software updates
included.
ØSoftware bundle includes 5
licenses which can protect up to 5 PCs
|
$3.00
|
|
CyberDefender
Registry Cleaner
ØAnalyzes and fixes broken PC
registries and performs other PC optimization tasks.
ØUnlimited updates for 1
year.
|
$2.50
|
|
Any
jurisdiction within the International Territory
|
CyberDefender
Early Detection Center
ØAntispyware and Antivirus PC
software with unlimited software and threat updates for 1
year. Tier 1 and Tier 2 technical support
included.
ØAll software updates
included
|
$4.00
|
CyberDefender
Early Detection Center Family Pak
ØAntispyware and Antivirus PC
software with unlimited software and threat updates for 1
year. Tier 1 and Tier 2 technical support
included.
ØAll software updates
included.
ØSoftware bundle includes 5
licenses which can protect up to 5 PCs
|
$6.00
|
|
CyberDefender
Registry Cleaner
ØAnalyzes and fixes broken PC
registries and performs other PC optimization tasks.
ØUnlimited updates for 1
year
|
$4.50
|
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