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EX. 10.2
OPERATING SYSTEM MASTER LICENSE AGREEMENT
THIS AGREEMENT is made as of the 18th day of April 2000
BETWEEN:-
1. XXXxxxxx.xxx Inc., a company duly registered and subsisting under the laws
of the State of Colorado, United States of America (hereinafter called "the
Master Licensor") of the first part; and
2. The company whose name(s) and address(es)/registered office(s) are more
particularly set out in the SCHEDULE ONE hereto as "the Master Licensee"
(hereinafter called "the Master Licensee") of the second part.
WHEREAS:-
(A) The Master Licensor has developed and operates the business of
"xxxxxxxxxxxx.xxx" which is operated in accordance with a distinctive
system and plan utilising and comprising certain proprietary marks,
confidential information, standards, specifications, techniques,
identifying schemes and materials, insignia, management methods and
standards of operational procedures.
(B) As a result of the services performed, the operation of the said
business has generated significant goodwill. Such goodwill, prestige and
public image shall be referred to below as the "SUMmedia Image"
(C) The Master Licensor is the proprietor of or has rights to the use of the
designations, trademarks, logo and other intellectual property rights the
full particulars of which appear in the SCHEDULE TWO hereto.
(D) The Master Licensee is a company established by the Master Licensor and
certain business partners particulars of which are set out in SCHEDULE
THREE for the operation of the business of XxxxxxXxxxxx.xxx in the
Territory specified below. The Master Licensee is desirous of obtaining the
benefit of the knowledge, skill and experience of the Master Licensor and
the right and license to operate the said business in the specified
territory and to grant to other parties the right to operate the same in
the specified territory in the manner and subject to the terms and
conditions set out below.
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IT IS HEREBY AGREED:
1. INTERPRETATION
1.1 In this Agreement and in the Recitals hereto, unless the context
otherwise requires:-
"Associated Means those companies, not being subsidiaries within
Companies" the meaning of Section 2 of the Companies Ordinance,
and which are referred to in SCHEDULE ONE;
"Banking Day" means a day upon which banks are open for business in
Hong Kong, other than a Saturday;
"Business" means the business of "XxxxxxXxxxxx.xxx" operated and
conducted under the Proprietary Marks using the
Operating System more particularly described in the
Operating Manual as those terms are defined
respectively herein;
"Licence" means the right to operate the Business in the
Territory under the Proprietary Marks in accordance
with the Operating System subject to the terms and
conditions of this Agreement;
"Licensees" means the persons duly authorised by the Master
Licensee in accordance herewith to operate the
Business in the specified territory;
"Licence Fee" means the fee payable by the Master Licensee to the
Master Licensor under Clause 7.1 of this Agreement;
"Operating Manual" means the written specification of the methods,
processes, techniques, systems and schemes devised
and compiled by the Master Licensor to be observed
and implemented by the Master Licensee in operating
the Business;
"Operating System" means the distinctive business format and method
developed and implemented by the Master Licensor in
connection with the establishment and operation of
the Business utilising and comprising the Proprietary
Marks and certain standard operational procedures,
plans, directions, specifications, methods,
management and advertising techniques and
identification schemes, part of which are contained
in the Operating Manual;
"Performance Target" means such targets of business performance as shall
be agreed between the Master Licensee and the Master
Licensor from time to time;
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"Proprietary Marks" means the present and future copyrights, patents,
trademarks, trade names, trade secrets, logos and
registered designs details of which are set out in
SCHEDULE TWO and all other patents, trade marks,
trade names, trade secrets, logos, designs, symbols,
emblems, insignia, fascia, slogans, copyrights,
know-how, information, drawings, plans, computer and
other programs, data, data-base and other materials
whether or not registered or capable of registration
and all other proprietary rights whatever owned by or
available to the Master Licensor adopted or
designated now or at any time hereafter by the Master
Licensor for use in connection with the Operating
System and/or the Business;
"Territory" means the territory more particularly described in
SCHEDULE FOUR;
"Services" means the consultative advisory and other services to
be rendered by the Master Licensor to the Master
Licensee more particularly described in SCHEDULE FIVE;
"Term" means term of this Agreement as specified in
paragraph 6 below;
"Dollars" "$" means United States Dollars in the law for currency
of the United States of America
1.2 References to clauses and schedules are to clauses and schedules to
this Agreement unless otherwise expressly stated and the Schedules to
this Agreement shall form part of this Agreement.
1.3 References in this Agreement to persons shall include bodies corporate
and unincorporated, associations and partners.
1.4 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing gender or the
neuter include both genders and the neuter.
1.5 References to statutory provisions shall be constructed as references
to such provisions as amended or re-enacted or as their applications
are modified by other provisions (whether before or after the date
hereof) from time to time and shall include any provisions of which
there are re-enactments (whether with or without modifications).
1.6 The headings and table of contents in this Agreement are inserted for
convenience only and shall not affect the construction of this
Agreement.
2. LICENCE
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2.1 The Master Licensor hereby grants to the Master Licensee the right
throughout the Term to operate and to grant sub-licenses to Licensees
to operate the Business in the Territory under the Proprietary Marks
in accordance with the Operating System subject to the terms and
conditions set out below and the Master Licensee's right of renewal as
provided hereinunder.
2.2 The rights granted hereunder shall be exclusive to the Master Licensee
in the Territory.
3. TERRITORY AND BUSINESS PLANS
3.1 The License granted to the Master Licensee under this Agreement shall
extend to the Territory only and the Master Licensee agrees that it
will not make any use nor will permit or authorise any use in respect
of the Operating System or the Proprietary Marks outside the
Territory. The Master Licensee also agrees that it will not offer or
provide any information or assistance concerning the Operating System
or Proprietary Marks to any person who intends or may seek to use the
same outside the Territory. The Master Licensor agrees that the
License granted hereunder confers to the Master Licensee an EXCLUSIVE
RIGHT to the License in the Territory, to the exclusion of all other
parties including the Master Licensor.
3.2 The Master Licensee has received, from the Master Licensor, approval
of the overall business plan for the establishment and operation of
the Business. Any subsequent change therefrom shall be subject to the
agreement of the Master Licensor and the Master Licensee.
4. MASTER LICENSOR'S OBLIGATIONS
4.1 For the purpose of establishment and development of the Business in
the Territory, the Master Licensor will:
4.1.1 provide to the Master Licensee at the expense of the Master
Licensee assistance in connection with the setting up and
development of the Business in the Territory and training in
the standards, procedures, techniques and methods comprising
the Operating System and to make available [two] competent
members of its executive staff for a period of three (3)
months during setting up and thereafter two (2) weeks during
each year of the Term for training and advice purposes;
4.1.2 deliver to the Master Licensee sufficient copies of the
Operating Manual and all other training and operating
materials as the Master Licensor may deem appropriate on the
basis that the same shall be on loan to the Master Licensee;
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4.1.3 permit the Master Licensee to operate and promote and grant
sublicences to operate and promote the Business in the
Territory in accordance with this Agreement;
4.1.4 make available to the Master Licensee on request and at the
cost of the Master Licensee the Master Licensor's staff
competent to provide any on-site assistance and advice in
connection with the Operating System and the specific
staged expansion of the Business in the Territory; and
4.1.5 promptly respond to all reasonable request of the Master
Licensee for assistance and approvals.
4.1.6 the Master Licensor shall make available to the Master
Licensee all such advanced technology, services, supplies,
equipment, software and applicable licensing agreements and
so on, that are available to further enhance the Licence;
should the Master Licensee wish to acquire same, the cost
shall be paid by the Master Licensee at the Master
Licensor's net cost. This shall confirm the Master
Licensee's request to the Master Licensor to order, (at the
Master Licensee's cost against an audited account; refer to
SCHEDULE SEVEN estimate), all necessary components of the
Operating System's hardware, software, suppliers' licences
and consulting and management fees as they apply to the
Operating System in the Territory.
5. MASTER LICENSEE OBLIGATIONS
5.1 The Master Licensee shall:-
5.1.1 diligently and in utmost good faith carry on the Business
and use its best endeavors to promote and develop the
Business in the Territory.
5.1.2 operate the Business and procure that the Business shall be
operated strictly in accordance with the provisions of the
Operating Manual and conform in all respects and at all time
to the Operating System (as modified from time to time by
the Master Licensor);
5.1.3 engage staff of sufficient number end of good quality and
acquire premises and other facilities necessary for the
furtherance of the Business and to build up, equip, decorate
and fit out such premises and facilities according to the
specifications required by the Master Licensor;
5.1.4 ensure all staff and their replacements to undergo training
in the Operating System and any improvement thereto;
5.1.5 pursue the largest business volume for the Business as may
be consistent with the SavingUmoney Image and the high
standards of service required by the Master Licensor;
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5.1.6 continuously increase operational outlets and sales teams;
5.1.7 promote and do all acts reasonable or as requested by the
Master Licensor to preserve the goodwill and reputation
associated with the SavingUmoney Image and the Proprietary
Marks and to immediately notify the Master Licensor of any
event which may or will likely result in any prejudice to
the same;
5.1.8 comply with all statutes, by-laws, regulations and
requirements of any government or other competent authority
relating to and apply for all governmental, fiscal or other
consents necessary for the conduct of the Business in the
Territory;
5.1.9 procure from its staff in particular its key personnel and
from such other persons as the Master Licensor shall require
undertakings in a form specified by the Master Licensor not
to disclose to any third party any confidential information
or knowledge concerning the Business, the Proprietary Marks
or the Operating System and at its own expense to take such
steps as the Master Licensor may direct in order to enforce
or restrain any breach of the terms of any such undertaking;
5.1.10 pay for visits by two executive members of the Master
Licensor, based in Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx to
the Territory twice per annum or as otherwise reasonably
required, to inspect all facets of the operations thereof.
Such costs shall include round trip business class air fare,
hotel charges and all incidental costs including but not
limited to the cost of meals and local transportation;
5.1.11 promptly pay all fees, charges, reimbursements and other
money due or payable under or arising from this Agreement;
5.1.12 not to do or omit to do or permit or suffer any act or thing
which may in the opinion of the Master Licensor bring the
Business or the Proprietary Marks into disrepute or which
may in the opinion of the Master Licensor damage or conflict
with the interests of the Business or the Master Licensor;
5.1.13 not without the Master Licensor's prior written consent be
engaged in any competitive business or undertaking other
than the Business;
5.1.14 to ensure that sublicenses granted by the Master Licensee to
Licensees shall be consistent with and shall conform with
the terms and conditions herein; and
5.1.15 obtain the necessary written approval of the Master Licensor
(not to be unreasonable withheld) for the sub-license
agreement between the
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Master Licensee and any Licensee for country territory, to
whom sublicenses are granted under paragraph 2.1 above.
6. RIGHT OF RENEWAL
6.1 This Agreement shall commence on the date hereof and shall continue
for a period of ninety-nine (99) years thereafter unless previously
terminated by either party in accordance with Clause 14 hereof.
6.2 Subject to the provisions of Clause 6.3 below, the Master Licensee may
at its option renew the Licence herein granted at the expiration of
the Term for a further term of ninety-nine (99) years by giving notice
in writing to the Master Licensor exercising the said option not less
than thirty (30) days and not more than ninety (90) days before the
expiry date of this Agreement.
6.3 Notwithstanding the giving of due notice pursuant to Clause 6.2 above,
the renewal shall only be effective provided that:-
6.3.1. the Master Licensee has throughout the Term properly
observed and performed all its obligations under this
Agreement and is not at the expiry date of this Agreement in
default under any such obligations;
6.3.2 no later than ten (10) days prior to the expiry date of this
Agreement the Master Licensee has executed a new master
licensing agreement in the form then used by the Master
Licensor which new agreement may differ from the terms of
this Agreement;
6.3.3 no later than ten (10) days prior to the expiry date of this
Agreement the Master Licensee has paid to the Master
Licensor without set-off or deduction a renewal fee of
US$100.00;
6.3.4 prior to the expiry date of this Agreement the Master
Licensee has executed a Deed of Release in such form as the
Master Licensor may required relinquishing any and all
claims of whatsoever nature against the Master Licensor or
any of its subsidiary, associated companies, shareholder,
director, agent or employee, or any other Master Licensee of
the Master Licensor.
7. FEES AND PAYMENT
7.1 In consideration of the Master Licensee's covenants hereunder, the
ownership of the Master Licensor in the Master Licence and the
investment of various shareholders of the Master Licensee into both
the master Licensor and the Master Licensee, the Master Licensee
hereby grants to the Master Licensee this Licence and therewith the
right to operate the Operating
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System and to carry on the Business in the Territory without payment
of any License Fee. Save for any payments that may be made under
paragraph 4.1.6, the Master Licensee shall not pay any future fee or
premium to the Master Licensor for the grant of the Licence; i.e. the
Master Licensee hereunder will pay to the Master Licensor zero (0 %)
per cent of the gross revenue of the Business each calendar month.
7.2 Within fourteen (14) days of the end of each three (3) month period,
the Master Licensee shall furnish to the Master Licensor a financial
report stating inter alia the gross revenue of the Business for the
period ended.
7.3 In the event any sum of money owing to the Master Licensor is not paid
by the Master Licensee on the due date, such sum shall bear interest
from day to day at a rate of two percent (2%) per month as well after
as before judgment in respect thereof.
8. RECORDS AND REPORTS
8.1 The Master Licensee shall provide to the Master Licensor, within
fourteen days of the end of every three (3) month period during the
Term, a detailed report of the Business for the month. The format of
such report shall be as set out in Schedule Six.
8.2 Commencing not less than 30 days before the first anniversary of the
date of this Agreement, and every year thereafter, the Master Licensee
shall submit to the Master Licensor in writing a business plan to
include promotions and marketing plans, sales targets and
projections in respect of the Business for the forthcoming year. The
Master Licensor shall review such proposed plan and the parties shall
finalise the same prior to the commencement of the year of this
Agreement to which it relates, whereupon the Master Licensee shall
implement the said plan as agreed.
8.3 The Master Licensee shall further:
8.3.1 maintain in a form approved by the Master Licensor full and
accurate books of accounts and shall keep detailed
management and accounting records including all supporting
vouchers, invoices, receipts, and other papers and shall
permit the Master Licensor or its duly authorised agent
during business hours to inspect such accounts and records
and to take copies thereof at the expense of the Master
Licensor;
8.3.2 duly to prepare and promptly furnish to the Master Licensor
all such other accounting and management information as the
Master Licensor may from time to time as may be reasonably
required in the form specified by the Master Licensor;
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8.3.3 at the Master Licensee's own expense in each accounting year
during the Term have all such accounts and records audited
by a qualified Chartered Accountant and to supply a full set
of such audited accounts which shall include a balance sheet
and profit and loss account to the Master Licensor within
three months after the close of each such accounting year;
8.3.4 preserve all such accounts and records for not less than
seven (7) years notwithstanding the termination or
expiration of this Agreement; and
8.3.5 permit auditors nominated by the Master Licensor at the
expense of the Master Licensor to conduct such audits as the
Master Licensor may consider on reasonable notice during
normal business hours.
8.4 Both parties shall provide the other with any documents or information
reasonably requested by the other in order to comply with any tax,
foreign exchange or other laws relating to this Agreement.
9. ADVERTISING AND PROMOTION
9.1 The Master Licensee shall devise and implement local regional and
national promotional activities in the Territory during each year of
the Term. The Master Licensee shall submit to the Master Licensor for
review a plan of all such activities within thirty (30) days from the
beginning of each year.
9.2 The Master Licensee shall keep detailed accounts and records of all
promotional activities and expenses of the Master Licensee in
connection therewith and shall make the same available to the Master
Licensor for inspection and to provide to the Master Licensor copies
thereof when requested so to do.
9.3 The Master Licensor will from time to time at its entire discretion
conduct advertising and promotional activities which will include
global, national or otherwise territorial advertising and promotion of
the SavingUmoney Image, the Proprietary Marks and/or the Business. The
Master Licensee shall fully and in good faith co-operate with and
assist the Master Licensor in all of such activities.
10. PROPRIETARY MARKS
10.1 The Master Licensor warrants that it is entitled to license the
Proprietary Marks to the Master Licensee and subject to necessary or
appropriate registration in the Territory the use of the Proprietary
Marks by the Master Licensee will not constitute an infringement of
rights of any third party and will fully and effectively indemnify the
Master Licensee for and against all
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proceedings, loss, damage, costs, claims, and expenses arising out of
such infringement.
10.2 The Master Licensee shall render to the Master Licensor all reasonable
assistance to enable the Master Licensor to obtain registration of any
of the Proprietary Marks. The Master Licensee shall not apply for
registration as proprietor of any of the Proprietary Marks in any part
of the world. If at the time the Master Licensor desires to apply for
registration and has so applied, the Master Licensee is deemed in law
also to be a proprietor of any Proprietary Xxxx or if for any other
reason the Master Licensor shall so request, the Master Licensee shall
at the expense of the Master Licensor make in its own name or jointly
with the Master Licensor and proceed with such application as the
Master Licensor may direct and do all such acts and things and execute
all such documents necessary for obtaining such registration and
thereupon the Master Licensee shall assign such registration and all
other rights in such Proprietary Xxxx to the Master Licensor.
10.3 The Master Licensee acknowledges that the goodwill and all other
rights in and associated with the Proprietary Marks in the Territory
and elsewhere vest absolutely in the Master Licensor and that it is
the intention of the parties that all such rights will at all times
vested in the Master Licensor and in the event that any such rights
at any time accrue to the Master Licensee by operation of law or
howsoever otherwise the Master Licensee will at its own expense
forthwith on demand do all such acts and things and execute all such
documents as the Master Licensor shall deem necessary to vest such
rights absolutely in the Master Licensor.
10.4 The Master Licensee will notify the Master Licensor forthwith of any
and all circumstances coming to the attention of the Master Licensee,
its directors, agents and employees which may constitute an
infringement of any of the Proprietary Marks or any suspected passing
off in connection therewith by any unauthorised person and shall take
such reasonable action as the Master Licensor may direct at the
expense of the Master Licensor with a view to restraining or
preventing such infringement or passing off.
10.5 The Master Licensee shall take such action in relation to the use of
any of the Proprietary Marks in the Business as the Master Licensor
may from time to time direct in order to make clear that the
Proprietary Marks are the subject of patent, copyright or trade xxxx
protection and belong to the Master Licensor.
10.6 The Master Licensee undertakes not to use any of the Proprietary Marks
in any circumstance other than in the context solely and exclusively
for the purpose of the Business.
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11. OPERATING SYSTEM MODIFICATION
11.1 The Master Licensor will keep a definitive copy of the Operating
Manual and all other documentation comprising the Operating System at
its head office (as modified and revised from time to time) which in
the event of any dispute as to the contents or import thereof shall be
the authentic text.
11.2 The Master Licensor may at its sole discretion modify or revise the
Operating System or the Operating Manual from time to time and the
Master Licensor will provide the Master Licensee with full written
details of all modifications and revisions.
11.3 The Master Licensee shall procure that the Business shall be
conducted strictly in accordance with the Operating Manual as modified
or revised from time to time. The terms and contents of the Operating
Manual shall be deemed incorporated into and shall form part of this
Agreement. The Master Licensee will not itself introduce or permit the
introduction of any improvement, addition, modification or revision of
or to the Operating System without the prior written consent of the
Master Licensor.
11.4 The Operating Manual and all documentation comprising the Operating
System shall at all times remain the sole and exclusive property of
the Master Licensor and the Master Licensee will not copy or in any
manner duplicate the same without the prior written consent of the
Master Licensor.
12. CONFIDENTIAL INFORMATION
12.1 Both parties agree that they shall not disclose or permit to be
disclosed to any third party save as required by operation of law any
trade secret, confidential information or knowledge or any financial
or trading information of or relating to the Operating System unless
directed to do so by a court of competent jurisdiction provided that
the provisions of this clause shall not prevent disclosure to either
party's agents, including but not limited to bankers, lawyers or
accountants for the purpose of obtaining professional advice.
12.2 Both parties undertake to advise their respective employees who are
provided with confidential information relating to the other of the
prohibition against disclosure or improper use as set out in Clause
12.1.
12.3 This obligation to maintain the confidentiality of the confidential
information shall continue to apply notwithstanding the termination or
expiry of this Agreement.
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13. NON-COMPETITION
13.1 The Master Licensee covenants during the Term and for a period of one
year after the expiration or termination for any reason of this
Agreement whether itself or together with any other person in any
capacity whatsoever save as authorised hereunder directly or
indirectly:
13.1.1 not to be engaged, or interested, or concerned in any
business which is in the reasonable opinion of the Master
Licensor similar to or competitive or in conflict with the
Business; and
13.1.2 not to employ or seek to employ any person who is at that
time or has at any time in the previous two years been
employed by the Master Licensor in any business carried on
under the Proprietary Marks using the Operating System or
otherwise directly or indirectly induce or seek to induce
any such person to leave his or her employment; and
13.1.3 not to solicit customers or former customers of the
Business nor divert any customers from the Master Licensor.
14. TERMINATION
14.1 The Master Licensor may, without prejudice to any other available
rights and remedies, terminate this Agreement by giving notice in
writing of the default to the Master Licensee and the said default
remains outstanding for a period of sixty (60) days thereafter, in any
of the following events:
14.1.1 if the Master Licensee shall at any time fail to pay any
amounts due and payable to the Master Licensor hereunder;
14.1.2 if the Master Licensee shall fail to submit to the Master
Licensor in a timely manner any of the accounting or
management information required to be so submitted;
14.1.3 if the Master Licensee shall in the opinion of an
independent arbitrator appointed by the parties, misuse or
in any way impair the goodwill associated with any of the
Proprietary Marks or takes any action to contest the
validity or ownership thereof;
14.1.4 if the Master Licensee shall purport to effect any
assignment of any of the rights or licences herein granted
other than in accordance with the terms hereof;
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14.1.5 if the Master Licensee during any 12 calendar month period
during the term fails to pay a fee equal at least equal to
$0.00 (nil).
14.2. This Agreement shall automatically terminate WITHOUT NOTICE being
given to the Master Licensee/Master Licensor in any of the following
events:-
14.2.1 if the Master Licensee shall become insolvent by reason of
its inability to pay its debts as they fall due or shall
enter into liquidation whether voluntarily or compulsorily
other than for the purposes of a reconstruction or
amalgamation or shall make any arrangement or composition
with its creditors or shall have a receiver appointed of all
or any part of its assets or takes or suffers any similar
action in consequence of a debt;
14.2.2 if the Master Licensor shall become insolvent by reason of
its inability to pay its debts as they fall due or shall
enter into liquidation whether voluntarily or compulsorily
other than for the purposes of a reconstruction or
amalgamation or shall make any arrangement or composition
with its creditors or shall have a receiver appointed of all
or any part of its assets or takes or suffers any similar
action in consequence of a debt then in such event the
License shall vest automatically in perpetuity in the Master
Licensee;
14.2.3 if the Master Licensee during any 12 calendar month period
during the term fails to pay a fee equal to $0.00 (nil).
15. EVENTS UPON TERMINATION
15.1 Upon the termination or expiration of this Agreement for any reason,
the Master Licensee shall:-
15.1.1. immediately pay to the Master Licensor the full amount of
all monies then or thereafter due (which have upon
termination become immediately due and payable without
further demand) together with any interest thereon up until
the date of payment
15.1.2 immediately cease to operate the Licence or the Business, to
use the Operating Manual or Operating System and shall not
thereafter hold itself out in any way as a Master Licensee
of the Master Licensor and refrain from any action that
would or may indicate any relationship between it and the
Master Licensor;
15.1.3 immediately cease to use in any way whatsoever the
Proprietary Marks and any other trade names, logos, devices,
insignia, procedures or methods which are or may be
associated with the Proprietary Xxxx or the Business;
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15.1.4 without exception return to the Master Licensor or otherwise
dispose of or destroy as the Master Licensor shall direct
all signs, advertising materials, stationery, invoices,
forms, specifications, designs, records, data, samples,
models, programs and drawings pertaining to or concerning
the Licence or the Operating System or the Operating Manual
or bearing any of the Proprietary Marks;
15.1.5 remove or permanently cover all signs or advertisements
identifiable in any way with the Master Licensor and in the
event of failure promptly so to do, to permit the authorised
agents of the Master Licensor to do so;
15.1.6 return to the Master Licensor all copies of the Operating
Manual in its possession and control;
15.1.7 return all items of equipment held on loan or hire from the
Master Licensor under the term of this Agreement or
otherwise;
15.1.8 do all such acts and thing and execute all such documents as
the Master Licensor shall require.
15.2 In the event of the expiry or sooner termination of this Agreement for
any reason the Master Licensee shall at the request of the Master
Licensor do all such acts and things and execute such deeds and
documents as the Master Licensor shall require to effect the
assignment of any and all agreements entered into with the Licensees
in the Territory to the Master Licensor or such other person as the
Master Licensor shall specify and in those circumstances the Master
Licensor shall have the right to deal directly with the Licensees as
if the Master Licensor was a direct party to the Licensing Agreement
and to receive all monies paid or payable by the Licensees to the
Master Licensee after the date of such expiry or termination without
incurring any liability to the Master Licensee whatsoever.
15.3 The expiration or termination of this Agreement shall be without
prejudice to the accrued rights of the parties and any provision
hereof which relates to or governs the acts of the parties hereto
subsequent to such expiry or termination hereof shall remain in full
force and effect shall be enforceable notwithstanding such expiry or
termination.
16. ASSIGNMENT
Neither party may assign any of its rights or obligations under this
Agreement provided that either party may assign this Agreement to another
company within
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that party's group of companies with the prior written consent of the other
party, which consent will not be unreasonably withheld or delayed.
17. PARTNERSHIP OR AGENCY
Neither party shall pledge the credit of the other nor represent itself as
being the agent, partner, employee or representative of the other and shall
not hold itself out as such nor as having any power or authority to incur
any obligation of any nature whatsoever express or implied on behalf of the
other and nothing in this Agreement shall operate so as to constitute the
Master Licensee as agent, partner, employee or representative of the Master
Licensor or vice versa.
18. WARRANTIES
The Master Licensee shall make no statement, representation or claim and
shall give no warranty to any person in respect of the Business or the
Operating System save as are specifically authorised in writing at the time
of the making by the Master Licensee of any such statement, representation,
claim or warranty.
19. INDEMNITY
Each party hereby agrees and undertakes fully and effectively to indemnify
and keep indemnified the other as well after as before the expiry or
termination hereof for and against all damages, loss, claims, demands,
expenses (including legal and professional expenses), costs and liabilities
which the other party may at any time incur as a result of any and all
breach by the other of the obligations hereunder.
20. RESERVATION OF RIGHTS
All right and licences not specifically and expressly granted to and
conferred upon the Master Licensee by this Agreement are for all purposes
reserved to the Master Licensor.
21. SUBROGATION
The Master Licensee hereby irrevocably appoints the Master Licensor as its
lawful attorney to enforce any breach by any Licensee under the licensing
agreement as the Master Licensor deems fit.
22. GENERAL
22.1 COSTS
Each party shall pay their own costs of and incidental to the negotiation,
preparation, finalisation and registration of this Agreement and all other
documents referred to herein.
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22.2 TIME OF THE ESSENCE
Time shall be of the essence as regards any date or period mentioned in any
clause of this Agreement save only to the extent that any date or period
may be altered by mutual agreement between the parties or extended at the
option of the party given such right.
22.3 WAIVER
No failure to exercise, nor any delay in exercising, on the part of the
Master Licensor or any of them, any rights or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any rights or remedy prevent any further or other exercise thereof or the
exercise of any other rights or remedy. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies
provided by law.
22.4 ENTIRE AGREEMENT
This Agreement (together with any documents referred to herein) constitute
the entire agreement made between the parties hereto and supersedes all
prior agreement in connection with the subject matter hereof. No director,
employee or agent of the Master Licensor is authorised to make any
representation or warranty not contained in this Agreement and the Master
Licensee acknowledges that he has not relied on any such oral or written
representations.
22.5 AMENDMENT
No modification, variation or amendment of this Agreement shall be
effective unless such modification, variation or amendment is in writing
and has been signed by or on behalf of the parties hereto. No waiver of any
breach or default under this Agreement or any of the terms hereof shall be
effective unless such waiver is in writing and has been signed by the party
against which it is asserted. No waiver of any breach or default shall
constitute a waiver of any other or subsequent breach or default.
22.6 NOTICE
Any notice required by this Agreement to be given by either party to the
other party shall be in writing and shall be served by sending the same (i)
by registered post or (ii) facsimile transmission followed by mailing of
such transmission to the address as either of the parties shall have
notified in writing to the other party giving the notice as their address
for such service and any receipt issued by the postal authorities shall be
conclusive evidence of the fact and date of posting of any such notice.
Notice shall be deemed to be delivered and effective as of the date shown
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on any certified receipt issued by postal authorities (if sent by
registered mail) or if sent by facsimile on the date of transmission
provided that confirmation of delivery shall have been received by the
sending party.
22.7 SEVERABILITY
Each of the restrictions and provisions contained in this Agreement and in
each Clause and sub-Clause hereof shall be construed as independent of
every other restriction and provision to the effect that if any provision
of this Agreement or the application of any provision to any person, firm
or company or to any circumstances shall be determined to be invalid and
unenforceable then such determination shall not affect any other provision
of the Agreement or the application of such provision to any person, firm,
company or circumstances all of which other provisions shall remain in full
force and effect.
22.8 PROPER LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of England.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first before written.
SIGNED for and on behalf of Master Licensor
by
Signature /s/ XXXXX XXXXXXXX
---------------------------------------
Name XXXXX XXXXXXXX
---------------------------------------------
Title CHAIRMAN & C.E.O.
-------------------------------------------
SIGNED for an on behalf of Master Licensee
by
Signature /s/ XXXXXXX XXXX
---------------------------------------
Name XXXXXXX XXXX
---------------------------------------------
Title DIRECTOR
-------------------------------------------
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SCHEDULE ONE
The Details of Master Licensee are as follows:
XXXxxxxx.xxx Asia Limited
X/X 000 Xxxx Xxx Mansion
0-0 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxx Xxxx
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SCHEDULE TWO
The Details of the Licensor's Propriety Rights are as follows:
PROPRIETY RIGHTS
XXXxxxxx.xxx Inc in developing the Operating System has created and/or
acquired certain proprietary information, technology, methods, marks, systems
and procedures ("Proprietary Rights") including but not limited to:
1. the trade marks:
1.1 trademark applications filed
Trademark Tm App # App Date Trademark Owner
--------- ----------------- ---------------
FUEL 55 Mar 9, 2000 SUMmedia Corp.
MEGAPACKAGE Mar 9, 2000 SUMmedia Corp.
SAVINGUMONEY 99/17861 Dec 6, 1999 SUMmedia Corp.
SUMMEDIA 99/17862 Dec 6, 1999 SUMmedia Corp.
SUMmon the Power
of the Internet Mar 9, 2000 SUMmedia Corp.
1.2 trademarks to be filed
Sumidea; coupons for just about anything; coupons for just about
anything anywhere; coupons online for just about anything; Sumspot;
scissors design; saving you money; Sumasia
2. all registered and pending domain names including:
a) xxxxxxxxxxxx.xxx
b) xxxxxxxxxxxxxx.xxx
c) xxxxxxxx.xxx
3. patent application for Operating System's billing systems - pending
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SCHEDULE THREE
Master Licensee is a Cayman Island Registered company having as its
shareholders:
SUMcayman Investments Limited
Golden Net Limited
Party Assets Limited
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SCHEDULE FOUR
The Territory
The Territory/Territories as defined in this Agreement will be those countries
and/or jurisdictions as fall within the areas circled on the below map.
[MAP]
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SCHEDULE FIVE
Services to be rendered by Master Licensor to Master Licensee shall include all
those obligations defined as set out in paragraph 4 of this Agreement
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SCHEDULE SIX
The Master Licensee Report shall comprise such documentation and be in such
format as may be agreed between the parties.
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SCHEDULE SEVEN
Unaudited Estimate of Costs (Paragraph 4.1.6)
SUMmedia IT COSTS
--------------------------------------------------------------------------------
DESCRIPTION TO DEC 31 JAN 1 - APR 30 TOTAL
----------- --------- -------------- -----
Oracle licensing 1,300,000 1,300,000
Oracle Apps Consulting 1,269,000 131,000 1,400,000
Oracle SUM & iStore 70,000 70,000
Oracle Strategy session 25,000 25,000
Oracle Project Mgmnt 20,000 20,000
SUMinsight 75,000 75,000
Technical Architecture 40,000 40,000
WAP conference 20,000 20,000
3 HP Servers 70,000 70,000
Oracle scoping engagement 32,000 32,000
Internet connections 26,000 26,000
Corporate Hardware/Software 300,000 300,000
Original server 16,000 16,000
Salaries 216,000 255,000 471,000
Mobile Development 95,000 95,000
Intranet (SUMinsight) 261,000 261,000
Quality Assurance 55,000 55,000
Development 865,000 865,000
System Management 155,000 155,000
Helpdesk 5,000 5,000
--------- --------- ---------
TOTAL 3,479,000 1,822,000 5,301,000
--------- --------- ---------
For the Fiscal Year 2000 Budget, costs were allocated as follows:
ASIA 25%
AUSTRALIA 10%
EUROPE 25%
NORTH AMERICA 40%
The 40% for North America includes 15% for future regions (e.g. South America)
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