Exhibit 10.22
SALE OF TECHNOLOGY AGREEMENT
This Sale of Technology Agreement ("Agreement") is made and
effective this 28th day of July 1999, by and between XxxxXXX.xxx, Inc., a
Delaware Corporation ("Buyer"), and Smart Software a company organized under the
laws of Argentina, with a principal address at Bolivar 2514 0xx Xxxxx, Xxx xxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx ("Seller").
Whereas, Seller has developed and owns all rights, to certain
computer software and related documents;
Whereas, Buyer wishes to purchase, and Seller wishes to sell,
such software and documentation
NOW, THEREFORE, in consideration of the promises and the
mutual covenants contained herein, the parties agree as follows:
1. Transfer.
A. Software. Seller hereby sells, assigns, conveys and
transfers to Buyer all of Seller's right, title and interest in and to the
following described computer software (the "Software"): The Software consists of
a set of scripts and applications which are either embedded or executed from a
switch and interact with the corporate database and web server, the Unix based
callback switching IVR and its value added services system that provide the
following features.
(i) Least Cast Routing
(ii) Speed Dialing and closed User Group Feature
(iii) Manual and web based update activation of
customers' DIDs
(iv) Callback switching
(v) IVR administrative model to change
destination number and customer prompts
(vi) E-mail and DTMF triggering
(vii) CDR generation in text mode
(viii) Sessions export via e-mail
(ix) Local credit limit deactivation
(x) NFS export to personal computer clients
(xi) The software includes: The first version of
the Software and all subsequent versions
thereof in all versions delivered to CallNOW
and all forms of expression therof,
including any software source code, object
code, flow charts, and block diagrams, and
programmer documentation, previous versions,
notes, other information relating to the
Software; and any copyrights Seller may have
a right to, related to THIS SOFTWARE.
B. Delivery. The updated executable version of the Software has been
delivered to Buyer prior to execution of this Agreement. Seller shall form time
to time, execute and deliver such instruments or documents and take such other
action as is reasonably necessary which Buyer may request in order to more
effectively carry out this agreement and to vest in buyer the Software and title
thereto.
2. Purchase Price. In consideration for the transfer of the Software, Buyer
shall pay to Seller 30,000 shares of restricted common stock of XxxxXxx.xxx,
Inc. stock, 7,500 shares of which shall vest every six months from the first day
of the month of this Agreement (i.e., on January 1, 2000 or until the end of any
restrictive period whichever is latest, July 1, 2000, January 1, 2001 and July
1, 2001).
3. Manuals. Buyer shall create Manuals, all as more particularly described in
Section 4(B) hereof. In consideration thereof, Buyer shall pay to Seller
$400,000 in eight (8) equal quarterly installments of $50,000, commencing
fifteen days after the signing of this contract.
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4. Default.
A. In the event that Buyer fails to make any payment due hereunder on
the date due, interest shall, without further notice, accrue on
the unpaid balance due at the rate of 12% per annum.
B. If buyer fails to cure the default within three business days of a
written notice of default from Seller, then, at Seller's sole
option, Seller shall be entitled to immediate payment of the full
amount remaining unpaid.
C. If Seller fails to provide the Manuals (as hereinafter defined in
timely accordance with the Schedule contained in Section 5
hereof), then for each day of delay, payment due under this
agreement shall be deferred two days, without interest.
5. Delivery of Manual. Seller agrees and understands that it must complete or
update the following manuals (the "Manuals") by the dates specified herein
as follows:
On or before June 1, 2000, Seller must provide an English version
software manual (the "Software Manual") and switching manual detailing every
aspect of the switching system, least cost routing, rates and customer
accounts tables (the "Switching System Manual") reasonably understandable by
an experienced programmer or engineer and setting forth in detail every
aspect of the Software and Switching System through 1999.
6. Representations and Warranties of Seller. Seller represents, warrants and
covenants as follows:
A. Title Infringement. Seller has good and marketable title to the
Software,
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and has all necessary rights to enter into this Agreement without
violating any other agreements or commitments of any sort. Seller
does not have any outstanding agreements or understandings,
written or oral, concerning the Software.
B. No Lien. The software is not subject to any lien, encumbrance,
mortgage or security interest of any kind.
C. Authority Relative to this Agreement. This agreement is a legal,
valid and binding obligation of Seller. The execution and delivery
of this Agreement by Seller and the performance of and compliance
by Seller with the terms and conditions of this Agreement will not
result in the imposition of any lien or other encumbrance on any
of the Assets, and will not conflict with or result in a breach by
Seller of any of the terms, conditions or provisions of any order,
injunction, judgement, decree, statute, rule or regulation
applicable to Seller, the Software, or any note, indenture or
other agreement, contract, license or instrument by which any of
the Software may be bound or affected. No consent or approval by
any person or public authority is required to authorize or is
required in connection with, the execution, delivery or
performance of this Agreement by Seller.
D. Warranty. Seller hereby warrants that as of the date hereof the
Software (1) functions in accordance with the specifications set
forth in this Agreement, and (2) fit for the purpose of providing,
least cost routing and switching of callback services and other
value-added features set forth in Section 1.A.
E. Limitation of Liability. THE WARRANTIES IN THIS AGREEMENT ARE
GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED AND
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IMPLIED, AND ARE THE SOLE WARRANTIES MADE BY SELLER WITH RESPECT
TO THE SOFTWARE. SELLER SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL,
EXEMPLARY, OR INCIDENTAL DAMAGES.
7. Representations and Warranties of Buyer. Buyer represents, warrants and
covenants as follows: Authority Relative to this Agreement. This Agreement
is a legal, valid and binding obligation of Buyer. The execution and
delivery of this Agreement by Buyer and the performance of and compliance
by Buyer with the terms and conditions of this Agreement will not conflict
with or result in a breach by Buyer of any of the terms, conditions or
provisions of any order, injunction, judgment, decree, statute, rule or
regulation applicable to Buyer, or any note, indenture or other agreement,
contract, license or instrument by which Buyer may be bound or affected. No
consent or approval by any person or public authority is required to
authorize or is required in connection with, the execution, delivery or
performance of this Agreement by Buyer.
8. Acceptance. The Buyer has accepted the Software AS IS on the date hereof.
9. No Brokers. All negotiations relative to this Agreement have been carried
on by Buyer directly with Seller, without the intervention of any person as
the result of any act of Buyer or Seller (and, so far as known to either
party, without the intervention of any such person) in such manner as to
give rise to any valid claim against the parties hereto for brokerage
commissions, finder's fees other like payment.
10. Consents, Further Instruments and Cooperation. Buyer and Seller shall each
use their respective best efforts to obtain the consent or approval of each
person or entity, if any, whose consent or approval shall be required in
order to permit it to consummate the transactions completed hereby, and
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to execute and deliver such instruments and to take such other action as
may be required to carry out the transaction contemplated by this
Agreement.
11. Buyer's Use of the Software. Buyer may, at its sole discretion, market,
license and sell the Software under names and trade names of its own
choosing, and may develop updated and modified versions and derivative
works of the Software without attribution of authorship to Seller as long
as it is not in breach under the terms of this Agreement. Buyer shall own
all rights and title, including copyrights, if any, in an to updated and
modified versions and derivative works of the Software without requiring
permission from Seller and without incurring payment obligations in
addition to those provided herein. Buyer may market or use the Software in
whatever manner and at whatever prices it sees fit.
12. Seller's Non-Use of the Assets; Confidentiality.
A. Seller retains no rights whatsoever in the Software and does not
retain the right to use the Software or any material included in
the Software for any purpose, personal, commercial, or otherwise.
This Agreement does not preclude Seller from designing any new
software for third parties.
B. Seller furthermore shall maintain all information relating to the
Software or use of the Software in confidence and shall not
disclose any aspect of the Software to any third party without the
prior written consent of Buyer.
13. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of New York.
14. Assignment. Neither Buyer nor Seller may assign this Agreement or any
obligation herein without the prior written consent of the other party and this
Agreement shall inure to the benefit of the parties named herein and their
respective heirs, executors, personal representatives, successors and
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assigns. Buyer may assign this Agreement to a subsidiary or affiliate or as
part of the sale of the Buyer's business. Seller may assign to a
corporation or limited liability Company of which Xx. Xxxxxx Xxxxxxxx is
the controlling principal.
15. Entire Agreement. This Agreement contains the entire understanding of the
parties, and supersedes any and all other agreements presently existing or
previously made, written or oral, between Buyer and Seller concerning its
subject matter. This Agreement may not be modified except by a writing
signed by both parties.
16. Severability. If any provision of this Agreement is declared by a court of
competent jurisdiction to be valid, void or unenforceable, the remaining
provisions of this Agreement nevertheless will continue in full force and
effect without being impaired or invalidated in any way.
17. Notices. All notices, requests, demands, and other communications hereunder
shall be deemed to have been duly given and received if delivered or
mailed, certified or registered mail, or the equivalent in Argentina, with
postage prepaid:
If to Buyer:
Xxxxxxxxx Xxxxxxxxxxx
c/o XxxxXXX.xxx, Inc.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
If to Seller:
Xx. Xxxxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
18. Relationship of the Parties. The relationship between Buyer and Seller
under this Agreement is intended to be that of buyer and seller, and
nothing in this Agreement is intended to be construed so as to suggest that
the party or its employees are the employee or agent of the other. Except
as expressly set forth herein, neither Buyer nor Seller has any express nor
implied right or authority
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under this Agreement to assume or create any obligations on behalf of or in
the name of the other or to bind the other to any contract, agreement or
undertaking with any third party.
19. Headings. Headings used in this Agreement are provided for convenience only
and shall not be used to construe meaning or intent.
20. Waiver. Failure of either party to exercise in any respect any of the
rights provided herein shall not be deemed a waiver of any right hereunder.
21. Arbitration. Any dispute arising out of or relating to this Agreement shall
be resolved pursuant to the rules set forth by the American Arbitration
Association in New York City pursuant to which each party shall have the
right to designate an arbitrator of their choice. The two arbitrators shall
select a third, impartial arbitrator. The parties shall each bear equally
the fees of the arbitrator. Nothing herein shall preclude either party from
seeking or obtaining injunctive relief in aid or arbitration.
22. Survivability. Paragraphs 4, 9 to 12 of this Agreement will survive the
expiration or any termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XxxxXxx.xxx, Inc. Smart Software
By:________________________ By:_______________________
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxxxx
CEO Authorized Representative
