EXHIBIT 10.41
LICENSE AGREEMENT
between
I-VIEW SOFTWARE, INC.
a Florida corporatIon
and
CROWN COMMUNICATIONS, INC.
a Florida corporation
Date: Nov. 18th, 1996
LICENSE AGREEMENT
This license agreement (the "License") is entered into as of the 18th day
of November, 1996 between I-View Software, Inc., a Florida corporation, whose
principal office is located at 000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, Xxxxxx Xxxxxx of America ("Licensor") and Crown Communications,
Inc., a Florida corporation, whose office is located at 0000 X. Xxxxx Xx. 0,
Xxxxxxx, 00000 ("Licensee").
RECITALS:
A. Licensor is the owner of a service xxxx, as well as certain copyrights,
trade secrets, proprietary technical and business information, engineering data
and specifications and designed equipment used in connection with the operation
of a video conferencing software and hardware package which allows video
broadcasting and video point to point operation over Galacticomm Worldgroup
Software, including all accounting, point of sale components and integration
with Galacticomm Software.
B. Licensee wishes to acquire a license to use such service marks,
copyrights, trade secrets, proprietary technical and business information,
engineering data and specifications and designed equipment in connection with
the operation an Adult Entertainment video conferencing and video point to point
service in North America.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Adult Entertainment" means sexually explicit entertainment that is
not obscene under applicable law.
1.2 "Copyrights" shal1 have the meaning set forth in Sechon 2.2(a)
1.3 "Licensed Rights" shall have the meaning set forth in Section 5.1(a).
1.4 "Xxxx" shall have the meaning set forth in Section 2.1(a).
1.5 "Royalty" shall have the meaning set forth in Section 4.1(a).
1.6 "Services" shall have the meaning set forth in Section 2.1(a).
1.7 "Term" shall have the meaning set forth in Section 3.1.
1.8 "Territory" shall have the meaning set forth in Section 3.4.
1.9 "Trade Secrets" shall have the meaning set forth in Section 2.3(a).
ARTICLE II
GRANT OF LICENSE
2.1 SERVICE XXXX LICENSE.
(a) GRANT. Licensor grants to Licensee for the Term and Territory, an
exclusive, nontransferable license to use the service xxxx "I-View" (the "Xxxx")
in advertisements that promote Licensee's Adult Entertainment video conferencing
services (the "Services") in the Territory. Licensee may only use the xxxx in
such advertisements in the following manner (or its Dutch equivalent): "We use
I-View software" or "Download free I-View software".
(b) QUALITY STANDARDS. Licensee understands that in order to maintain
valid and enforceable rights in the Xxxx, Licensor must maintain certain quality
standards relating to the nature of the services rendered in connection with
Xxxx. Accordingly, Licensee agrees that the nature and quality of the services
rendered by the Licensee in connection with the Xxxx and all related
advertising, promotional and other related uses of the Xxxx shall conform to
such commercially reasonable standards of use that may exist within the
Territory, from time to time, consistent in all material respects with the
requirements of the laws and regulations of the Netherlands and the European
Community.
2.2 COPYRIGHT LICENSE.
(a) GRANT. Licensor grants to Licensee for the Term and Territory an
exclusive, nontransferable license to use the copyrighted works identified in
SCHEDULE 2.2 attached hereto (the "Copyrights") for use solely in connection
with the operation of the Services in the Territory.
(b) ALTERATION.
(i) Licensee shall not, and acknowledges that it is not entitled to,
make any alterations, additions, changes in or revisions of the Copyrights,
without the prior written consent of Licensor. Licensee shal1 not create any
new works, compilations or derivative works based entirely or in substantial
part on the Copyrights without the prior written consent of the Licensor.
(ii) If Licensor authorizes any changes, alterations, revisions,
new works, compilations or derivative works based entirely or in substantial
part on the Copyrights, all right, title and interest in such alterations,
additions, changes, revisions, new works, compilations or derivative works shall
belong to Licensor, and Licensee shall take whatever steps are reasonably
necessary to assign, transfer or perfect title in such works solely in the name
of the Licensor.
(iii) Nothing herein shall be construed to permit or authorize
Licensee to make any changes, alterations, additions, revisions, new works,
compilations or derivative works based in whole or in any part on the Copyrights
licensed hereunder.
(c) DISTRIBUTION AND PUBLICATION. Licensee shall not distribute,
publish, lease, rent or display to the public any Copyrights without the prior
written consent of the Licensor. However, during the term of this license,
Licensee may freely distribute I-View Software to its customers so long as such
customers agree to the terms of the license agreement attached hereto as Exhibit
2.2(c)
2.3 TRADE SECRETS PROPRIETARV INFORMATION.
(a) GRANT Licensor grants to Licensee for the Term and Territory, an
exclusive, nontransferable license, to use all trade secrets, proprietary
technical and business information, engineering data and specifications provided
to Licensee by Licensor (the "Trade Secrets"), including without limitation
those Trade Secrets identified in Schedule 2.3, for use solely in connection
with the operation of the Services in the Territory.
(b) COPIES. Licensee shall make no copies of the Trade Secrets without
the prior written consent of Licensor. However, Licensee may make one copy of
the Trade Secrets for archival purposes only. Such archival copy shall be kept
among the confidential papers of the Licensee at its offices and shall not be
disclosed to any third parties.
(c) DISCLOSURE TO EMPLOYEES.
(i) Licensee may disclose the Trade Secrets only to those employees
of Licensee who, by virtue of their duties and responsibilities, have a need to
know the Trade Secrets. Prior to any disclosure of any of the Trade Secrets to
any employee, such employee shal1 execute a non-disclosure, non-competition
agreement under which such employee agrees, subject to applicable law, to
maintain the secrecy of the Trade Secrets for as long as the Trade Secrets
remain secret and proprietary to Licensor and to refrain from using any Trade
Secrets in any future employment by third parties. Furthermore, such employee
shall agree, in writing, to assign to Licensee (who in turn shall assign to
Licensor) all right, title and interest to any trade secret or proprietary
information, invention, discovery or computer software program created or made
by the employee during the course of his employment and which relates to the
Trade Secrets.
(ii) For the purposes of this Section, the term "employee" includes
all officers, directors and employees of Licensee.
(iii) All employees to whom Trade Secrets may be disclosed shall be
timely identified to Licensor.
(d) MARKINGS. Licensee shall maintain the Trade Secrets in confidence
and shall xxxx each document or thing bearing or containing a Trade Secret with
the legend:
CONFIDENTIAL BUSINESS INFORMATION - TRADE SECRET
I-VIEW SOFTWARE, INC.
or:
TRADE SECRET - I-VIEW
(e) REVERSE ENGINEERING. Licensee shall not reverse engineer or
otherwise decompile any softcware licensed hereunder, including, but not limited
to the reverse engineering or decompilation of any object or source codes of the
software licensed hereunder.
ARTICLE III
TERM, TER1MINATION AND TERRITORY
3.1 TERM. This exclusive license is for a term of three (3) years
commencing on the date hereof, unless terminated earlier in accordance with
Section 2.2 (the "Term").
3.2 TERMINATION.
(f) Licensor may immediately terminate this License if:
(i) Licensee commits a material breach of this License;
(ii) Licensee fails to make any payment required hereunder, in a
timely manner, to Licensor;
(iii) Licensee uses the Licensed Rights in any way that contravenes
applicable criminal or obscenity Laws; or
(iv) Licensee becomes bankrupt, insolvent or is otherwise unable
to pay its creditors in a timely manner.
(g) Licensee may immediately terminate this License if:
(i) Licensor commits a material breach of this License; or
(ii) Licensor becomes bankrupt, insolvent or is otherwise unable to
pay its creditors in a timely manner.
3.3 EFFECT OF TERMINATION.
(a) Upon the expiration or termination of the License, Licensee shall
immediately cease all use of the Xxxx, the Copyrights and the Trade Secrets.
(b) Within thirty (30) days of the expiration or termination of this
License, Licensee shall return, at its sole expense, to Licensor all original
and copies of all materials in its possession, custody or control bearing
Licensor's service marks; all copyrighted materials in its possession, custody
or control containing any copyrighted materials owned or licensed hereunder by
Licensor and all materials containing any licensed trade secrets, proprietary
technical or business information, engineering data and specifications. Licensee
shal1 make no further use of any of these materials and equipment or any
improvements, additions or modifications thereto made by Licensee during the
term of this License.
(c) Within thirty (30) days of the expiration or termination of this
License, Licensee shall deliver to Licensor a final accounting of its revenues,
together with all licensing fees and expenses owed to Licensor.
(d) Licensor, at its sole expense, may conduct a final audit of
Licensee's books and records in accordance with the provisions above within one
(l) year ofthe termination or expiration of this License.
3.4 TERRITORY. This exclusive license is solely for the territory of North
America (the "Territory"). The Territory shall not include any dependencies,
colonies or territories of the Netherlands outside the boundaries of the
Netherlands.
ARTICLE IV
LICENSING FEES AND EXPENSES
4.1 ROYALTIES.
(a) Licensee shall pay to Licensor a royalty (the "Royalty") equal to
twelve percent (12%) of Licensee's gross revenues calculated on a weekly basis
for the previous week ending on a Friday. For each week, Licensee shall pay the
Royalty for such week to Licensor in U.S. dollars by the Friday of the following
week.
4.2 ACCOUNTINC AND RECORD KEEPING.
(a) Licensee shall keep and maintain, at its principal office, records
of its revenues with respect to sales covered by this License. Licensor and its
authorized representatives shall have access to Licensee's premises during
normal business hours to examine such records upon not less than two (2) days
written notice to Licensee. Furthermore, Licensee shall grant remote system
operator access to all of Licensee's computers that are used in the provision
of the Services.
(b) No later than fifteen (15) days after the last day of March, June,
September and December during the term of this License, Licensee shall deliver
to Licensor financial information with respect to sales subject to this License
for the immediately preceding calendar quarter including gross revenues derived
from the Services.
(c) Licensor may, at its expense and not more than once in a twelve
(12) month period, audit the books and records of Licensee after reasonable
notice of not less than five (5) days.
4.3 EXPENSES. Licensee shall not be responsible to pay for additional
software upgrades. In the event that Licensor requires additional custom
software not herein defined then such software will be provided by Licensor at
a fee agreed to in advance by Licensor. All amounts invoiced by Licensor
hereunder shall be due and payable by Licensee within thirty (30) days of
Licensor's delivery of invoices to Licensee.
ARTICLE V
OWNERSHIP AND INFRINGEMENT OF LICENSED RIGHTS
5.1 OWNERSHIP
(a) Licensee acknowledges that Licensor is the sole and exclusive owner
of al1 right, title and interest in the Xxxx, the Copyrights and the Trade
Secrets (collectively, the "Licensed Rights"). Licensee agrees that it wil1 do
nothing inconsistent with such ownership rights and that all uses of the
Licensed Rights by Licensee shall inure to the benefit of the Licensor. Licensee
shall assist Licensor, at Licensor's sole expense, in the execution and filing
of any documents necessary to perfect such rights in the Territory and to record
this License as may be necessary.
(i) Licensee agrees that nothing in this License shall give Licensee
any right, title or interest in the Licensed Rights other than the right to use
and exploit the License Rights under the terms of this License.
(ii) Licensee acknowledges the validity of the Licensed Rights. In
doing so, Licensee shal1 not attack Licensor's title to the Licensed Rights, nor
the validity of the Licensed Rights or this License
5.2 INFRINGEMENTS
(a) Licensee has no affirmative obligation to investigate or police
infringements or unauthorized uses of the Licensed Rights. However, Licensee
shall provide Licensor with written notice of any infringements or unauthorized
uses of the Licensed Rights of which any employee of the Licensee shall become
aware, within five (5) business days of learning of the same. Licensor shall
have the sole and exclusive right and discretion to bring any action or
proceeding for service xxxx copyright or trade secret infringement or theft,
unfair competition, passing off or any other action available to Licensor
during the first thirty (30) days after receiving notice of such infringement.
(b) If Licensor takes any legal action or proceeding against a third
party for infringement of the Licensed Rights in the Territory, Licensee shall
cooperate with Licensor in the prosecution and defense of such action or
proceeding, including but not limited to discovery, document production,
pretrial and trial testimony and the like. Any award of damages (including
reimbursements of costs and expenses) in favor of Licensor shall be for the
exclusive benefit of Licensor.
5.3 USE OF LICENSED RIGHTS IN ACCORDANCE WITH LAW. Licensee shall use the
Licensed Rights in accordance with all applicable laws. Without limiting the
generality of the foregoing, Licensee shall not use the Licensed Rights in any
way that contravenes any applicable criminal or obscenity laws.
ARTICLE VI
INDEMNIFICATION BY LICENSEE
Licensee shall indemnify Licensor against any claims or damages arising
from or related to Licensee's breach of this License, including but not limited
to actual damages, punitive, compensatory, increased or treble damages, costs
and reasonable attorneys' fees (both at the trial and appeal level). Any
indemnification payment required by this Article shal1 be made by Licensee to
Licensor within ten days of Licensor's providing Licensee with reasonable proof
of Licensor's payment or incurrence of the costs or damages that are subject to
reimbursement hereunder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF LICENSOR. Licensor represents and
warrants to Licensee, as follows:
(a) ORGANIZATION. QUALIFICATION. ETC.. Licensor is a duly organized
and validly existing corporation in good standing under the laws of the State of
Florida.
(b) ENFORCEABILITY. Licensor has full right, power and authority to
enter into this License and to consummate the transactions contemplated herein.
This License has been duly and validly executed and delivered by Licensor, and
is a valid and binding agreement of Licensor, enforceable in accordance with its
terms, except as such enforceability may be subject to: (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights; or (b) the remedy
of specific performance and injunction and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(c) CORPORATE AUTHORITY. The execution, delivery and performance of
this License by Licensor have been duly authorized by all necessary corporate
action of Licensor (and constitutes the legal, valid and legally binding
obligation of Licensor enforceable against Licensor in accordance with its
terms) and do not and will not conflict with or violate any provision of law or
regulation, or any writ, order or decree of any court, governmental regulatory
authority or agency or any applicable license, franchise, certificate, permit,
authorization, approval or consent, which would have a material adverse effect
on Licensor, or any provision of Licensor's Articles of Incorporation or Bylaws
and do not and will not result in a breach of, or constitute a default under or
require any consent pursuant to any agreement, contract, arrangement or
understanding to which Licensor is a party, which would have a material adverse
effect on Licensor. The execution and delivery of this License and the
performance of all the transactions contemplated to be performed by Licensor:
(i) requires no consent, approval or authorization from any court, governmental
regulatory authority or agency or any other person; and (ii) does not result in
the execution or imposition of any lien, charge or encumbrance upon any property
of Licensor under any indenture or instrument to which Licensor is a party, or
by which any of Licensor's property or business may be bound that, in any such
case, would have a material adverse effect on Licensor.
7.2 REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee represents and
warrants to Licensor, as follows:
(a) ORGANIZATION. QUALIFICATION. ETC.. Licensee is a duly organized and
validly existing corporation in good standing under the laws of the Netherlands.
(b) ENFORCEABILITY. Licensee has full right, power and authority to
enter into this License and to consummate the transactions contemplated herein.
This License has been duly and validly executed and delivered by Licensee, and
is a valid and binding agreement of Licensee, enforceable in accordance with
its terms, except as such enforceability may be subject to: (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights; or (b) the remedy
of specific performance and injunction and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(c) CORPORATE AUTHORITY. The execution, delivery and performance of
this License by Licensee have been duly authorized by all necessary corporate
action of Licensee (and constitutes the legal, valid and legally binding
obligation of Licensee enforceable against Licensee in accordance with its
terms) and do not and will not conflict with or violate any provision of law or
regulation, or any writ, order or decree of any court, governmental regulatory
authority or agency or any applicable license, franchise, certificate, permit,
authorization, approval or consent, which would have a material adverse effect
on Licensee, or any provision of Licensee's Articles of Incorporation or Bylaws
(or equivalent orgaruzational documents) and do not and will not result in a
breach of, or constitute a default under or require any consent pursuant to any
agreement, contract, arrangement or understanding to which Licensee is a party,
which would have a material adverse effect on Licensee. The execution and
delivery of this License and the performance of all the transactions
contemplated to be performed by Licensee: (i) requires no consent, approval or
authorization from any court, governmental regulatory authority or agency or
any other person; and (ii) does not result in the execution or imposition of any
lien, charge or encumbrance upon any property of Licensee under any indenture or
instrument to which Licensee is a party, or by which any of Licensee's property
or business may be bound that, in any such case, would have a material adverse
effect on Licensee.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 TRANSFERABILITY. Licensee shall not assign, by means of sublicensing
or otherwise, its rights or obligation under this License to any third party,
without the prior written approval of Licensor. Licensor may assign its rights
and obligations hereunder to any third party.
8.2 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made) upon the earliest to occur of
(a) receipt, if made by personal service, (b) two days after dispatch, if made
by reputable overnight courier service, (c) upon the delivering Partys receipt
of a written confirmation of a transmission made by cable, by telecopy, by
telegram, or by telex, or (d) three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested) to the respective
Parties at the following addresses (or at such other address for a Party as
shall be specified in a notice given in accordance with this Section:
To: I-View Software, Inc.
000 X. Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Tel: (000)000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxx, President
To: Crown Communications, Inc.
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxxxx
8.3 PRONOUNS AND HEADINGS. As used herein, all pronouns shall include the
masculine, feminine, neuter, singular and plural wherever the context and facts
require such construction. The descriptive headings in the sections of this
License are inserted for convenience of reference only and shall not control or
affect the meaning or construction of any of the provisions hereof.
8.4 SEVERABILITY. If any provision of this License is held by a court or
regulatory body of competent jurisdiction to be invalid, illegal or
unenforceable, such provision shall be severed and the remaining provisions
hereof shall be enforced to the extent possible or modified in such a way as to
make it enforceable, and the invalidity, illegality or unenforceability thereof
shall not affect the validity, legality or enforceability of the remaining
provisions of this License.
8.5 MODIFICATION: AMENDMENT. No modification or amendment of this License
shall be valid unless the same shall be in writing executed by the Licensor and
the Licensee.
8.6 GOVERNING LAW AND FORUM SELECTION. This License shall be governed by
and construed in accordance with the laws of the State of Florida, U.S.A.,
without regard to the conflict of laws provisions thereof. Each party hereby
irrevocably and unconditionally submits to the exclusive jurisdiction of the
state courts of the State of Florida, sitting in Broward County, and the Federal
courts of the Southern District of Florida. Each party irrevocably and
unconditionally waives: (a) any objection which it may now or hereafter have to
venue in any such court; and (b) any claim that any action or proceeding brought
in such court has been brought in an inconvenient or improper forum.
8.7 BINDING EFFECT: COMPLETE AGREEMENT. This License shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns. This License
constitutes the entire agreement among the parties hereto and supersede all
prior agreements and understandings, oral or written, among the parties hereto
with respect to the subject matter hereof.
8.8 COUNTERPARTS. This License may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
8.9 ATTORNEYS' FEES. If any legal or equitable action, including an action
for declaratory relief, is brought to enforce any provision of this License,
the prevailing party shall be entitled to recover its reasonable attorneys'
fees from the non-prevailing party. These fees, which may be set by the court
in the same action or in a separate action brought for that purpose, are in
addition to any other relief to which any prevailing party may be entitled.
8.10 WAIVER. Except as otherwise expressly set forth herein, the failure
of any party hereto to enforce any provision or provisions of this License shall
not be construed as a waiver of any such provision or provisions as to any
future violations thereof, nor prevent that party thereafter from enforcing each
and every other provision of this License. The waiver of any single remedy shall
not constitute a waiver of such partys rights to assert all other legal remedies
available to such party under the circumstances.
8.11 CONFIDENTIALITY. The parties acknowledge that the terms and conditions
of this License are confidential business information and shall not be disclosed
by either party without the prior written approval of the other party unless
required by law or as otherwise permitted by the terms hereof.
IN WITNESS WHEREOF, the undersigned parties have executed this License as
of the day and year first above written.
I-VIEW SOFTWARE, INC. CROWN COMMUNICAI;IONS, INC.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
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Name: XXXXX XXXX Name: XXXXX XXXXXXXX
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Title: President Title: V.P.
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