LICENSING AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT (“Agreement”) is dated April 15, 2010 among Demand Pooling Global Services
LLC, a limited liability company, established pursuant to the laws of the
State of Delaware, having an address of 00000 Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxx, XX 00000 ( “Licensor” or “DPGS”), and Accelerated Acquisitions V,
Inc., a company incorporated pursuant to the laws of the State of
Delaware, with an address of 000 Xxxxx Xxxx Xxxx. Xxxxx 000, Xxxxx Xxxxxx, XX
00000 (“Licensee”).
WHEREAS:
A.
Except as provided herein, Licensor holds all rights, title and interest to a
certain invention entitled “DPGS Technology” as further described in
Schedule "A" attached hereto (“Technology”);
B.
Licensor wishes to enter into a formal licensing agreement with Licensee on the
terms set forth below;
THIS AGREEMENT WITNESSES THAT
in consideration of US$10.00 (the receipt and sufficiency of which is hereby
acknowledged), the parties agree as follows:
ARTICLE
1
INTERPRETATION
1 .1 Construction and
Interpretation. In this Agreement, unless inconsistent with or
excluded by the context:
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(a)
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Any
heading, index, table of contents or marginal note used in this Agreement
is for convenience only and will not limit or affect the interpretation or
construction of this
Agreement;
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(b)
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Singular
words will include the plural and plural words will include the
singular;
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(c)
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A
reference to a person will include a company or other corporation and a
reference to a company or other corporation will include a
person;
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(d)
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A
word importing a particular gender will include each other gender;
and
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(e)
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A
reference to a party to this Agreement includes that party's heirs,
executors, administrators, successors and permitted
assigns.
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1.2 Definitions.
In this Agreement, unless inconsistent with or excluded by the
context:
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(a)
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“Affiliate”
means, with respect to any entity, any other entity which directly or
indirectly controls or is controlled by or is under direct or indirect
common control with such first mentioned
entity;
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(c)
“Improvements”
means all improvements to the Technology developed within or by
Licensee;
(d) “Intellectual
Property” includes the Technology and any intellectual property relating to the
Technology, including any patent, patent application, copyright, industrial
design, trademark, any rights to patent, copyright, industrial design or
trademark in any country, engineering designs, concepts, models, trade secrets,
know-how and show how, and includes any new technology or the products as may
hereafter be developed or acquired by Licensee or any of its
subsidiaries;
(e) “License”
means an exclusive (North American) and non-exclusive International (outside
North America), non-transferable, license (with a limited right of sublicense)
to allow Licensee to install, use and apply the Technology and conduct its
business in the Territory;
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(f)
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“Licensed
Products” means products which, in the absence of the License, would
infringe the Licensor’s intellectual property rights in the
Technology;
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(g)
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“Original
Invention” means a certain invention entitled “DPGS Technology” as further
described in Schedule "A" attached
hereto;
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(h)
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“Technology”
means certain technology known as “DPGS Technology” and includes the
Original Invention, any improvements thereof and any Internet platform
which embodies the DPGS Technology and any improvements thereof or
thereto;
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(i)
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“Territory”
means North American (exclusive) and non-exclusive International (outside
North America); and
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(j)
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“Trade-Xxxx”
means and trade-xxxx or trade-name as may be adopted for use on the
Licensed Products from time to
time.
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1.3 Variation of Agreement. Any
variation or modification or waiver of the terms or conditions of this Agreement
must be in writing, duly executed by Licensor and Licensee,
respectively.
1.4 Severance. Each word, phrase,
sentence, paragraph and section of this Agreement is severable and if a court in
any jurisdiction determines that any such provision is unenforceable, illegal or
void in that jurisdiction the court may sever that provision which becomes
inoperative and such severance will not affect the operation of any other
provisions of this Agreement nor the operation of that provision in any other
jurisdiction.
1.5 Waiver. The failure of either
party hereto at any time to enforce any provision of this Agreement will not
affect its rights thereafter to require complete performance by the other party,
nor will the waiver of any breach of any provision be taken or held to be a
waiver of any subsequent breach of any such provision or be a waiver of the
provision itself. In order for any waiver to be effective, it must be in writing
and signed by an authorized officer of the party.
1.6 Law. This Agreement will be
governed by, and construed in accordance with, the laws of the State of
Delaware, and both parties agree to submit to the exclusive jurisdiction of the
courts of the State of Delaware.
ARTICLE
2
LICENSE
2.1 Grant
of License:
(a)
Licensor hereby grants to Licensee a license for use in the Territory, with a
limited right of sublicense, as set forth in Section 2.1(e) below, to allow the
Licensee to use the Intellectual Property to install, use, and apply the
Technology in the course of Licensee’s business, which, in the absence of the
License, would infringe Licensor’s intellectual property;
(b) Except
for the rights granted pursuant to the License, Licensor shall retain all
rights, title and interest to the Technology;
(c) Licensee
shall be responsible for all of the testing and improvements to the
Technology;
(d)
Licensor shall retain all rights to the Improvements, but such Improvements
shall also be a part of the License;
(e) Licensee
shall have the right to offer limited royalty-bearing sublicenses to third
parties where such third parties are in a position to commercialize the
Technology in ways that Licensee cannot accomplish in a competitive manner.
Licensee shall pay Licensor twenty-five percent (25.0%) of all royalties
and fees received from such third parties. If Licensee receives any non-cash
consideration as part of the sublicense consideration (including equity in
sublicensee or other entities), Licensor shall have the option to take its
portion of the sublicense consideration in kind or in cash based on the fair
market value of the non-cash consideration as of the date of receipt by Licensee
wherein the fair market value as determined by Licensee’s independent accounting
advisors shall equal the cash consideration an unaffiliated, unrelated buyer
would pay in an arm’s length sale of a substantially identical item sold in the
same quantity, under the same terms, and at the same time and place. Such right
to sublicense is subject to the following conditions:
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(i)
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In
each sublicense agreement, the sublicensee will be subject to the
terms and conditions of the license granted to Licensee
under this Agreement, and the sublicensee will be prohibited from either
assigning its sublicense or granting further sublicenses, without first
obtaining approval from Licensor; provided, however, that in the event
that such further sublicense is approved, any fee or other consideration
paid to sublicensee in consideration of such sub-sublicense will be
treated as sublicense consideration as if the sub-sublicensee were a
sublicensee. Nevertheless, Licensee may set royalty or other payments at
its discretion for its sublicensees, as long as the applicable royalties
or other payments of its sublicensees are not more favorable to the
sublicensee than the corresponding terms of this
Agreement.
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(ii)
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Licensee
will forward to Licensor, within thirty (30) days following its execution,
a fully executed, complete, and accurate copy written in the English
language of each sublicense agreement granted under this Agreement.
Licensor’s receipt of such sublicense agreement will not constitute a
waiver of any of Licensor’s rights or Licensee’s obligations under the
Agreement.
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(iii)
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Notwithstanding
any such sublicense agreement, Licensee will remain primarily liable to
Licensor for all of Licensee’s duties and obligations contained in the
Agreement, and any act or omission of a sublicensee that would be a breach
of the Agreement if performed by Licensee will be deemed to be a breach by
Licensee of the Agreement. Each sublicense agreement will contain a right
of termination by Licensee in the event that the sublicensee breaches the
payment obligations affecting Licensor or any other material terms and
conditions of the sublicense agreement that would constitute a breach of
the terms and conditions of the Agreement if such acts were performed by
Licensee. In the event of such sublicensee breach, and if after a
reasonable opportunity to cure as provided in any such sublicense
agreement, such sublicensee fails to cure such sublicensee breach, then
Licensee will terminate the sublicense agreement unless Licensor agrees in
writing that such sublicense agreement need not be
terminated.
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(iv)
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Upon
termination of the Agreement for any reason, all sublicense agreements
will, at Licensor’s option, be (i) assigned to and assumed by Licensor, or
(ii) terminated.
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(f) Licensee
shall pay Licensor a royalty of ten percent (10.00%) of all gross revenues
resulting from the use of the Technology by Licensee, except as otherwise
modified in writing.
2.2 Exclusive
Rights. The rights of Licensee to the License in accordance with Section
2.1 will be sole and exclusive North America and non-exclusive
Internationally (outside North America), and Licensor will not directly or
indirectly compete with Licensee, nor license, authorize or permit any third
party to compete with Licensee with respect to the use of the Technology within
the exclusive Territory.
2.3 Assignment of
Rights. Licensor and Licensee acknowledge that the respective rights and
obligations pursuant to this Agreement are personal to the parties and that
Licensee, except in the event of the acquisition of Licensee, by any means, or
the sale or merger of substantially all of Licensee’s assets to or with a third
party, will not assign this Agreement or assign or delegate any or all rights,
duties, or obligations under this Agreement without the prior consent in writing
of Licensor, which consent Licensor may not withhold unreasonably. If
Licensor consents to such assignment or delegation, Licensee will remain jointly
and severally liable with the assignee or delegate for the obligations of
Licensor under this Agreement. Subject to the limitations hereinbefore
expressed, this Agreement will inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
2.4 Reorganization of
Rights. Licensor may choose to reorganize its worldwide licensing
strategy, including delegation of certain commercialization rights to a separate
entity within the exclusive Territory, with the prior written consent of
Licensee, which may not be unreasonably withheld, provided that the full
beneficial terms to Licensee embodied in the Agreement shall not be diminished
due to such actions.
2.5 Effect of
Assignment. Unless otherwise agreed upon between the parties, no
assignment of this Agreement, the benefit of this Agreement or any rights,
licenses or authorities pursuant to this Agreement will relieve the assigning
party from any liability under this Agreement, whether absolute, contingent, due
or accruing, which exists as of the date of assignment.
2.6 No Sublicense.
Except pursuant to Section 2.1(e), Licensee will not sublicense the benefit of
this Agreement or any rights, licenses or authorities pursuant to this Agreement
and any attempted violation of this section, whether voluntarily or by operation
of law, will be void and of no force and effect.
2.7 Confidential
Information. Licensee acknowledges that its entire knowledge of the
Technology and the business of Licensor, including, without limitation, the
contents of any Documents (defined as all drawings, specifications, blueprints,
programs and other material in electronic form or otherwise relating in any
manner to the Intellectual Property or the Technology) and periodic updates or
revisions, in effect from time to time and the designs, plans, prototypes,
specifications, standards and operating procedures for the Technology, will be
derived from information disclosed to Licensee by Licensor in confidence and
that the Documents and such other information are confidential information
and/or trade secrets of the Licensor (all of which is herein collectively called
the "Licensor Confidential Information") except where such information is in the
public domain or is information describing generally accepted business,
engineering or manufacturing practices. Accordingly, Licensee agrees that it
will maintain the absolute confidentiality of the Intellectual Property, the
Documents and such other information, both during and after the term of this
Agreement, disclosing same to other employees of Licensee only to the extent
necessary for compliance with this Agreement.
All
Licensor Confidential Information obtained by Licensee shall be considered
confidential and will not be disclosed by Licensee to any person without the
prior written consent of Licensor. Licensor will provide reasonable
confidentiality agreements in the form attached hereto as Schedule C to be
signed by Licensee and all employees or sub-contractors of Licensee to whom any
Licensor Confidential Information will be disclosed, and Licensee will provide
or obtain signatures of such confidentiality agreements as the case may
be.
During
the course of its relationship with Licensor, Licensee or its subsidiaries or
associates or their employees, agents or consultants may disclose certain
proprietary or confidential information to Licensor or its subsidiaries or
associates or their employees, agents or consultants. The proprietary or
confidential information may be oral or written, may be of a technical or
commercial nature, may take the form of plans, drawings, processes, formulae,
schedules, reports, projections, analyses, programs, prints, recordings, lists
or other compilations of information, and may relate to Licensee, its vendors,
employees, stockholders or customers. All of such proprietary information and
confidential information is herein collectively called the “Licensee
Confidential Information”.
Any
Licensee Confidential Information obtained by Licensor will be considered
confidential and will not be disclosed by Licensor to any person without the
prior written consent of Licensee. Licensee agrees that the Licensor
Confidential Information, and all rights to the Licensor Confidential
Information, which has been or will be disclosed to Licensee, as well any
improvement or technology using, relating to or incorporating the Licensor
Confidential Information shall remain the exclusive property of Licensor, and
shall be held in trust for the benefit of Licensor. Licensee agrees that
it will not, directly or indirectly, deal with, use, or exploit the Licensor
Confidential Information without Licensor's prior written consent. With regard
to any improvement or new technology using, relating to or incorporating the
Licensor Confidential Information, Licensee agrees to assign to Licensor all
right, title and interest in such improvements or technology, any copyright,
trademark, industrial design, patent applications and copyrights, trademarks,
industrial designs, patents granted thereto, the sole right to file such
applications and Licensee agrees to assist Licensor in obtaining reissues,
divisions, renewals or extensions of any such applications and to do any act
required to aid Licensor in obtaining and enforcing proper intellectual property
protection.
The
foregoing restrictions do not apply to information which:
(a) at
the time of disclosure was in the public domain as evidenced by a printed
publication or otherwise;
(b) after
disclosure becomes part of the public domain by publication or otherwise, other
than by action of the disclosing party;
(c) was
in the possession of the disclosing party at the time of disclosure by the
disclosing party and was not acquired, directly or indirectly, from the
non-disclosing party; or
(d) the
disclosing party rightfully receives from an independent third party who did not
receive such information, directly or indirectly, from the other party with
limitation or restriction on its use.
The
obligations contained in this Article will continue notwithstanding the
termination of this Agreement or any confidentiality agreements.
The
products or proceeds of the services performed by Licensee under this Agreement
including, but not limited to, documents, written materials, programs,
documentation, designs, discs and tapes shall be and remain the property of
Licensor and Licensee shall be able to use such written materials, programs,
documentation, designs, discs and tapes for the purposes of carrying out its
obligations under this Agreement while the Agreement is in effect.
Licensee
will, however, notify Licensor immediately of any alleged, possible, or
suspected infringement, passing off, or challenge to the use of any of the
Intellectual Property or claim by any person to any rights in any similar
trademarks or names of which Licensee is or becomes aware. Licensor agrees to
execute any and all instruments and documents, render such assistance and do
such acts and things as may be, in the opinion of Licensee, acting reasonably,
necessary or advisable to protect and maintain the interests of Licensor in any
such litigation or proceedings or to otherwise protect and maintain the interest
of Licensor in the Intellectual Property.
Licensee
will have the right, but not the obligation, to prosecute infringement of any of
the intellectual property related to the Technology at its own expense. Licensee
will not settle or compromise any such suit in a manner that imposes any
obligations or restrictions on Licensor or grants any rights to any intellectual
property of the Technology, without Licensor’s prior written consent. At the
time of filing any infringement enforcement action against a third party,
Licensor and Licensee will determine how any damages awarded will be distributed
between Licensor and Licensee; provided, however, that in no event will
Licensor’s distribution be less than an amount that would have been due to
Licensor as sublicense fees as if the litigation recovery had been sublicense
consideration. In such a situation Licensee will recoup 100% of its entire
litigation expenses first before any calculation is made with regard to the
division of damages awarded. In the event that Licensee is not successful in
winning a litigation case, Licensee may deduct from future royalty and
sublicense fees fifty percent of such litigation costs.
2.8 No Agency or Joint
Venture. Nothing in this Agreement constitutes or deems the parties to be
engaged in a partnership or joint venture in relation to the distribution or
marketing of the Products, nor to create the relationship of principal and agent
or master and servant between the parties, or any other form of legal
association which would impose liability upon one party for any act or failure
to act by the other party.
2.9 Term. The term
("Term") of this Agreement and of the rights, authorities and licenses granted
to the Licensee pursuant to this Agreement for (i) the Technology, (ii) any
improvements of or to the Technology, or (iii) any Internet platform which
embodies the Technology or such improvements shall commence upon execution of
this Agreement and continue for a term of twenty (20) years, ending on the
twentieth anniversary of the date of execution hereof, provided that the
Licensee is not in breach or default of any of the terms or conditions contained
in this Agreement.
2.10 Renewal.
Subject to written mutual agreement between Licensor and Licensee, this
Agreement may be renewed.
ARTICLE
3
RESEARCH,
DEVELOPMENT AND COMMERCIALIZATION
FUNDING
REQUIREMENTS
3.1 Effective Dates. The
License shall become effective upon execution hereof (“Execution Date”) and
continue until the end of the Term provided Licensee has generated revenues net
of expenses incurred in the normal course of operations, or has funded, a
minimum of US$10,000,000 for "qualifying research, development and
commercialization expenses" in accordance with the following
schedule:
(a) a
minimum of US$1,000,000 during the period commencing upon the Execution Date and
ending on the first anniversary of the Execution Date; or
(b)
a
minimum of US$4,000,000 during the period commencing upon the Execution Date and
ending on the second anniversary of the Execution Date; or
(c)
a
minimum of US$10,000,000 during the period commencing upon the Execution Date
and ending on the third anniversary of the Execution Date.
It is
understood and agreed that any funding in excess of the minimum funding
requirement for a particular period shall be automatically credited against the
minimum funding requirement for the following funding period. For clarity,
"qualifying research, development and commercialization expenses" shall be those
expenses that have been pre-approved by the parties hereof as contributing to
the research, development and commercialization of the Technology, improvements
and platform embodying the Technology and improvements thereof as mutually
agreed upon by the parties to this Agreement.
Research,
development and commercialization funding may be expanded under terms and
conditions mutually agreed between the parties.
ARTICLE
4
LICENSEE’S
COMMERCIALIZATION OBLIGATIONS
4.1 Responsibilities. Licensee
shall perform as follows:
(a) Licensee
shall fund payments immediately as they become due for:
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(i)
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reasonable
relocation and resettlement costs of a Licensor platform advisor and other
necessary personnel agreed upon between the two parties, to the testing
and development locale including the acquisition and transport of
prototype materials and required documents or
plans;
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(ii)
legal expenses to a patent attorney firm, mutually agreed upon among the
parties, who will provide necessary assistance in due diligence for the
patentability of the technology;
(iii) funding
the ongoing research, development and commercialization of the Technology and
the research, development and commercialization of devices using the
Technology;
All of
the above expenditures shall be credited to the funding requirements set out in
Article 3 and are to be considered immediately available upon need.
(b)
Provide assistance to the Licensor with the procurement of patent
protection, including cooperating in registered user application of such other
applications or filings as are required to effect necessary patent protection
with respect to the Technology. Licensee shall pay patent costs and expenses
related to United States and foreign filings, including patent filing,
translation, search, prosecution and maintenance costs and fees. Licensee will
be billed and will pay directly to patent counsel all documented costs and fees
and other charges incident to the preparation, prosecution, and maintenance of
any patents, copyrights or trademarks related to the Technology within thirty
(30) days after receipt of invoice. Licensee at its option may
register this Agreement with any patent office having
jurisdiction. Licensor will work closely with Licensee to develop a
suitable strategy for the prosecution and maintenance of all patents, industrial
design, trademarks and copyrights. It is intended that Licensee may interact
directly with the selected patent counsel in all phases of patent prosecution,
such as preparation, office action responses, filing strategies for continuation
or divisional applications, and other related activities. Licensor will provide
copies of all documents prepared by the selected patent counsel to Licensee for
review and comment prior to filing, to the extent practicable under the
circumstances. Licensor will maintain final authority in all
decisions regarding the prosecution and maintenance of any patent, industrial
design, trademark or copyright applications. All new patent applications and
patents will be in the name of Licensee and owned by Licensee.
(c) Licensee
will use diligent and commercially reasonable efforts to
actively commercialize the Technology. “Actively
commercialize” means having a commercially effective, reasonably funded ongoing
and active research, development, manufacturing, marketing and/or sales program
directed toward obtaining regulatory approval, production and/or sales of
products embodying the Technology in applicable markets.
(d) All
payments to Licensor will be made in United States dollars by check payable to
the name of Licensor and sent to:
Demand
Pooling Global Services LLC
00000
Xxxxxxxxx Xxxx Xxxxx 0000
Xxxxxx,
XX 00000
All
payments shall be subject to applicable withholding taxes, if any.
(e) Licensee
will maintain, and cause its sublicensees to maintain, complete and accurate
books and records that enable all royalties payable under the Agreement to be
verified. The records for each calendar quarter will be maintained for three (3)
years after the submission of each quarterly activity report of Licensor. Each
quarterly activity report shall be delivered to Licensor within forty-five (45)
days after March 31, June 30, September 30, and December 31, beginning
immediately after May 1, 2010 and detail the gross sales revenues for the fiscal
quarters ending on the foregoing dates, which report shall be certified by the
chief financial officer or similar officer of Licensee even if no payments are
due Licensor, giving the particulars of the business conducted by Licensee its
sublicensee. In addition, Licensor shall have the right, on an annual basis to
request and receive technical information from Licensee sufficient to
evidence whether and to what extent Licensee is practicing the claims of the
Licensed Patents. Licensor shall have the right to make an enquiry in regard of
such reports within 30 days following the receipt of such report and upon the
expiry of 30 calendar days from the receipt of such report or 10 calendar days
from the receipt of the explanation of any enquiry, such report or explanation
shall be deemed to be acceptable and final.
(f) Upon
prior notice to Licensee and its sublicensees, and at Licensor’s expense,
Licensor or its representatives or its appointed accountants will have access to
such books and records relating to gross sales as necessary to conduct a review
or audit of gross sales and verify all royalty reports submitted and royalty
payments. Such access will be available to Licensor upon not less than ten (10)
days’ written notice to Licensee and its sublicensees, not more than once each
calendar year of the Term, during normal business hours, and once a year for
three years after the expiration or termination of the Agreement. If an audit of
Licensee’s records indicates that Licensee has underpaid royalties by more than
(i) three percent (3%), or (ii) five thousand dollars ($5,000), whichever is
greater, for the records so audited, Licensee will pay the reasonable costs and
expenses incurred by Licensor and its representatives and accountants, if any,
in connection with the review or audit, and Licensee will immediately remit such
royalties and any accrued interest to Licensor. Further, whenever Licensee and
its sublicensees has its books and records audited by an independent certified
public accountant, Licensee and its sublicensees will, within thirty (30) days
of the conclusion of such audit, provide Licensor with a written statement,
certified by said auditor, setting forth the calculation of royalties due to
Licensor over the time period audited as determined from the books and records
of Licensee.
ARTICLE
5
PROTECTION
OF THE LICENSOR’S
INTELLECTUAL
PROPERTY
5.1 Licensee hereby
acknowledges Licensor’s right, title and interest in the Intellectual Property
relating to the Technology.
5.2 Licensee hereby
acknowledges that all right, title, interest and goodwill relating to the
Intellectual Property inure to Licensor.
5.3 Licensee hereby
acknowledges that any rights subsequently acquired with respect to Licensor’s
Intellectual Property or similar property is assigned to Licensor.
5.4 Licensee undertakes
not to contest the validity of Licensor’s rights in the Intellectual
Property.
5.5 Licensee agrees to
take no actions which might impair or interfere with Licensor’s rights in the
Intellectual Property.
5.6 Licensee agrees not
to seek, independently of Licensor, any trade xxxx, copyright, patent, or
industrial design registrations anywhere in connection with the Intellectual
Property or similar property.
5.7 Licensee agrees not
to adopt or use any property similar to the Intellectual Property during the
Term of this Agreement and thereafter.
5.8 Licensee shall not
associate or commingle the Intellectual Property with other intellectual
property without the Licensor’s prior consent.
5.9 Licensee
agrees not to use the Intellectual Property in an unauthorized manner and, in
particular, not to use it in Licensee’s name or as a name or part of a name of
any other corporate legal entity, except that Licensee, may elect to use the
company name or part of the company name of Licensor in Licensee’s name, with
the prior written consent of Licensor, which consent will not be unreasonably
withheld.
5.10 Licensee
acknowledges that the grant of License is subject to the terms of this
Agreement, and a breach of this Agreement constitutes an infringement of the
Licensor’s Intellectual Property.
5.11 Licensee agrees to
affix notices indicating Licensor's ownership of Licensor's Intellectual
Property on licensed products and all packaging, advertising, promotional and
other materials bearing Licensor's Intellectual Property in such form as is
requested by Licensor.
5.12 Licensee hereby
acknowledges the uniqueness of the Intellectual Property, and the difficulty of
assessing damages from the unauthorized use of the Intellectual Property and the
propriety of injunctive relief.
5.13 Licensor represents
and warrants to Licensee that it is the sole owner of the Intellectual Property
and the Technology, that such Intellectual Property and Technology do not
infringe on the intellectual property of any other person, and that all
registrations with respect thereof are in good standing, valid and enforceable,
and with support from Licensor, Licensee will, at its sole expense, take all
reasonable steps to secure and protect the Intellectual Property and the
Technology, including without limitation the defense of any claims against
Licensee in relation to the Intellectual Property and the Technology, in
accordance with agreement.
5.14 Licensee and
Licensor shall cooperatively use their commercially reasonable efforts to
achieve procurement of trade xxxx, copyright and industrial design protection
with respect to the Intellectual Property, as applicable, including cooperating
in registered user application of such other applications or filings as are
required to effect necessary trade xxxx, copyright, patent and industrial design
protection at Licensee’s expense.
5.15 Licensee and
Licensor shall immediately notify each other of all unauthorized uses,
infringements, imitations and any other claims against the interests of Licensor
and Licensee and assist each other in the enforcement of trade-xxxx, copyright,
patent and industrial design protection relating to the Intellectual
Property.
5.16 Each of
Licensor and Licensee shall have the right, but not the obligation, to decide
whether to take action against infringements and imitations or defend against
any action with respect to the Intellectual Property, and Licensee shall
cooperate in any such action or defense.
5.17 Licensor
represents and warrants that it has the right to grant the License to Licensee
in accordance with the terms of this Agreement.
5.18 Licensor
represents and warrants that entering into this Agreement does not violate any
rights or obligations existing between Licensor and any other
entity.
5.19 Licensee and
Licensor shall be required to use industry standard non-disclosure agreements or
mutually acceptable non-disclosure agreements when dealing with third parties in
order to safeguard and protect Intellectual Property.
ARTICLE
6
LICENSOR'S
OBLIGATIONS
6.1 Licensor's Indemnity. Licensor
will indemnify and save Licensee harmless from and against any and all
reasonably foreseeable claims, causes of action, damages, awards, actions,
suits, proceedings, demands, assessments, judgments, as well as any and all
costs and legal and other expenses incidental to the foregoing, arising out
of:
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(a)
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Any
act, default or breach on the part of Licensor or its officers, employees,
servants, agents and representatives under the terms of this Agreement;
and
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(b)
Any claims of intellectual property infringement arising out of the
commercialization of the Technology to the extent that the potential for such
specific claims were actually known by the Licensor or should have been known
and were not disclosed to Licensee; or to the extent expressly waived by
Licensee in writing if such claims were disclosed to Licensee.
6.2 Compliance with Laws. Licensee
will at all times during the Term fully comply with all laws, bylaws,
regulations of any competent authority that affect or are likely to affect the
due performance and observance of Licensee's obligations in this Agreement in
the sale, distribution and use of the Licensed Products.
ARTICLE
7
INTELLECTUAL
PROPERTY
7.1 Ownership of Intellectual
Property. Based on Licensor's representation and warranty provided in
Section 10.1 as well as any future technology patents being granted, Licensee
acknowledges that Licensor is the sole and beneficial proprietor of the
Intellectual Property.
7.2 Use of Name. Use of name or
other proprietary trade dress of Licensor or any of its subsidiaries by Licensee
shall be subject to the prior written approval of Licensor or any of its
subsidiaries.
7.3 No Copies. Except in
furtherance of the research, development and commercialization of the
Technology, Licensee shall not, and shall not authorize any sublicensee or
third part to, copy, reverse engineer, decompile, disassemble, reconstruct,
decrypt, modify, update, enhance, supplement, translate or adapt the Licensed
Products and shall take all reasonable precautions so as not to allow other
parties to do so.
7.4 Improvements.
Any improvements to any Licensed Product or future products, regardless of the
source, are the property of Licensor or any of its subsidiaries unless otherwise
agreed in writing, and shall be communicated promptly to Licensor or any of its
subsidiaries and will be licensed to Licensee for the Term of this Agreement as
set forth in Section 2.9 hereof.
ARTICLE
8
REPRESENTATIONS,
WARRANTIES AND COVENANTS
8.1 Licensor represents and
warrants to Licensee that it is the sole owner of the Intellectual Property,
that such Intellectual Property does not infringe on the Intellectual Property
of any other person and at Licensee's expense, Licensee together with the
cooperation of Licensor shall take all reasonable steps to secure and protect
the Intellectual Property and the Technology, including without limitation the
defense of any claims against the Licensee in relation to the Intellectual
Property and the Technology.
8.2 To the
knowledge of Licensor, there are no claims of any nature or description related
to the Intellectual Property and all registrations with respect to the
Intellectual Property are in good standing and are valid and
enforceable.
8.3 Licensor agrees
to use its best efforts to obtain all required patent and industrial design
protection for the Intellectual Property not previously obtained.
8.4 Licensor will agree
to maintain its intellectual property rights in the Technology free and clear of
all liens and encumbrances and that no lien, encumbrance, mortgage or debt
instrument of any kind, nature or description shall be incurred without the
prior written consent of Licensee;
8.5 To the extent
it shall not adversely affect the attorney-client relationship, Licensor shall
ensure that any retention arrangement with any patent agent shall provide that
Licensee shall at all times be copied on any correspondence with any patent
office and that Licensee shall have free and unfettered access to the working
files of such patent agent and may make such enquiries with the patent agent as
is necessary for the maintenance of its continuous disclosure record with its
shareholders and the making of any decision by Licensee for any payments
hereunder;
8.6 Licensor represents
and warrants that it has the right to grant the License pursuant to the terms of
this Agreement and that entering into this Agreement does not violate any rights
or existing obligations between Licensor and any other entity.
8.7 Licensor represents
and warrants that it is a limited liability company in good standing under the
laws of the State of Delaware and has full authority to enter into this
Agreement without any breach of its governing documents or any applicable
law.
8.8 Licensee represents
and warrants that it is a corporation in good standing under the laws of the
State of Delaware and has full authority to enter into this Agreement without
any breach of its governing documents or any applicable law.
ARTICLE
9
FORCE
MAJEURE
9.1 Definition of Force
Majeure. For the purpose of this Agreement, force majeure means any act,
event or cause, except in relation to obligations to make payments under this
Agreement, beyond the reasonable control of the party affected by that force
majeure including, without limitation, any act of God or any public enemy, fire,
flood, explosion, landslide, epidemic, breakdown of or damage to plant,
equipment or facilities, inability to obtain or unavailability of or damage to
materials, ingredients or supplies, strikes, labor disputes, war, sabotage,
riot, insurrection, civil commotion, national emergency and martial law,
expropriation, restraint, prohibition, embargo, decree or order of any
government, governmental authority or court.
9.2 Notice of Force
Majeure. A party (in this Agreement called the "Affected Party") will
inform the other party in writing within seven days of becoming affected by any
force majeure that has or is likely to have any substantial detrimental effect
on the ability of the Affected Party to perform any or all of the terms and
conditions contained in this Agreement and will give particulars of the force
majeure and the likely duration of the force majeure and of any likely or
resulting disability or effect of that force majeure.
9.3 Time for Performance.
The time for performance of the obligations of an Affected Party will be
extended for the period of the force majeure if appropriate.
ARTICLE
10
TERMINATION
10.1 Termination on Default.
If any of the Parties are in breach or default of the terms or conditions
contained in this Agreement and do not rectify or remedy that breach or default
within 90 days from the date of receipt of notice by the other party requiring
that default or breach to be remedied, then the other party may give to the
party in default a notice in writing terminating this Agreement but without, in
any way, limiting or affecting the rights or liabilities of the parties or
either of them that have accrued to the date of termination. However,
the party to whom notice of default has been delivered shall have the right to
contest the termination in a court of law and any such termination shall not
become effective until a final decision has been rendered by a court of
competent jurisdiction that the alleged breach is actual and that the party to
which a notice of default has been delivered, has not effectively cured the
default.
10.2 Optional Termination by Licensee.
Licensee may, at its option, terminate this Agreement at anytime by
doing the following:
(a)
by ceasing to use the Technology and offer the services facilitated by any
Licensed Products;
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(b)
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by
giving sixty (60) days prior written notice to Licensor of such cessation
and of Licensee’s intent to terminate, and upon receipt of such notice,
Licensor may immediately begin negotiations with other potential licensees
and all other obligations of Licensee under this Agreement will continue
to be in effect until the date of
termination;
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(c)
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tendering
payment of all accrued royalties and other payments due to Licensor as of
the date of the notice of termination;
and
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(d)
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evidencing
to the Licensor that provision has been made for any prospective royalties
and other payments to which Licensor may be entitled after the date of
termination.
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10.3 Partial Termination by the
Licensor. Notwithstanding Section 10.1, if Licensee is in
breach or default of the terms or conditions contained in this Agreement and
does not rectify or remedy that breach or default within 90 days from the date
of receipt of notice by Licensor requiring that default or breach to be
remedied, then Licensor, may alter License granted by this Agreement with
regards to its exclusivity, its territorial application and restrictions on its
application.
10.4 Termination in Other
Events. Without in any way limiting any other provision of
this Agreement, either Licensor or Licensee may terminate this Agreement by
notice in writing to the other if an order is made by a court or other competent
authority for the winding up or dissolution of Licensee.
10.5 Survival. Upon the termination
of this Agreement:
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(a)
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Licensee
will immediately cease use of the Intellectual Property; provided however,
after the effective date of termination, Licensee may sell all Licensed
Products and parts thereof that it has on hand at the effective date of
termination; provided, however, that Licensee’s royalty obligations will
continue until all Licensed Products have been
sold;
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(b)
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Nothing
in this Agreement will be construed to release either party from any
obligation that matured prior to the effective date of termination;
and
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(c)
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The
provisions of Articles 5, 6, 7 and 8 shall survive any termination or
expiration of this Agreement
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ARTICLE
11
GENERAL
11.1 Notices. All notices or other
communications required or permitted to be given under this Agreement must be in
writing and delivered by e-mail, courier or facsimile to the address for each
party as specified above or in the case of delivery by facsimile, as
follows:
If to
Licensee:
Accelerated
Acquisitions V, Inc.
000 Xxxxx
Xxxx Xxxx. Xxxxx 000
Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
E-mail: x.xxxxxx@xxxxxxx.xxx
If to
Licensor:
Demand
Pooling Global Services LLC.
00000
Xxxxxxxxx Xxxx Xxxxx 0000
Xxxxxx,
XX 00000
Attention: Xxxxxxx
Aland
Facsimile:
000-000-0000
E-mail: xxxxxx@xxxx.xxx
Any party
may designate a substitute address for the purpose of this section by giving
written notice in accordance with this section. Any notice delivered in this
fashion will be deemed to have been given when it is actually
received.
11.2 Time of Essence. Time is of
the essence of this Agreement.
11.3 Further Assurances. Each of
the parties hereby covenants and agrees that at any time and from time to time
it will, upon the request of the other party, do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney and
assurances as may be required for the better carrying out and performance of all
the terms of this Agreement.
11.4 Each party
recognizes that the employees of the other party, and such employees' loyalty
and service to such party, constitute a valuable asset of such party.
Accordingly, each party agrees not to make any offer of employment to, nor enter
into a consulting relation with, any person who was employed by the other party
within three years after the cessation of such person's employment by the other
party.
11.5 Subject to the
limitations hereinbefore expressed, this Agreement will inure to the benefit of
and be binding upon the parties and their respective successors and
assigns.
11.6 There are no oral
conditions, representations, warranties, undertakings or agreements between
Licensor and Licensee. No modifications to this Agreement will be binding unless
executed in writing by the parties. No waiver of any provision of this Agreement
will be construed as a waiver of any other provision hereof nor shall such a
waiver be construed as a continuing waiver. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original, but all of
which together constitute one and the same instrument. This Agreement will be
governed by the laws of the State of Florida. Unless otherwise stated, all
dollar amounts referred herein shall be in the lawful currency of the United
States. If any clause or provision of this Agreement is declared invalid or
unenforceable, the remainder of this Agreement will remain in full force and
effect. Headings used in this Agreement are for reference purposes only and will
not be deemed to be a part of this Agreement. This Agreement will not be
construed as creating a partnership, joint venture or agency relationship
between the parties or any other form of legal association which would impose
liability upon one party for any act or failure to act by the other
party.
IN
WITNESS WHEREOF the following parties have executed this Agreement:
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ACCELERATED
ACQUISITIONS V, INC.
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/s/ Xxxxxx X.
Xxxxx
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By:
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Xxxxxx
X. Xxxxx, Director
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DEMAND
POOLING GLOBAL SERVICES LLC
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/s/ Xxxxxxx
X. Aland
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By:
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Xxxxxxx
X. Aland, Director
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SCHEDULE
A
INTELLECTUAL
PROPERTY:
Demand
Pooling Global Services, LLC (“DPGS”) has developed certain intellectual
Property consisting of the components outlined in the following paragraphs, and
developed and designed to advance a business concept (“Business Concept”) and it
is this Business Concept, combined with the technology and company expertise for
which DPGS is seeking patent protection and which is the technology that is the
subject of the Licensing Agreement between DPGS, as licensor and Accelerated
Acquisitions V, Inc., as licensee (the “Company”).
The
Business Concept consists of a number of approaches that facilitate improved
pricing and greater affordability for products that state and local governments,
the Company’s initial target market, purchase on a repetitive basis. While
the Business Concept is equally applicable for non-governmental entities, such
as utilities and a variety of other commercial enterprises, the Company has
chosen to initially target the state and local governmental
marketplace.
The
Business Concept has, as its core product, a web-based electronic platform that
facilitates the aggregation of demand (or “cooperative purchasing”) for
high-ticket capital equipment and selected commodities. DPGS’s proprietary
software facilitates cooperative purchases of similar products, even though each
individual participant may maintain its own unique product
specifications.
Graphically,
the following illustrates the overall Business Concept:
SYSTEM
TECHNOLOGY:
Datacenter
The DPGS
system utilizes a leased facilities and capacity in a highly secure, fault
tolerant, enterprise-class data center, designed to provide 100% uptime.
Maintenance of the facilities, operation and management of the datacenter is
outsourced to Databank LLC, 000 X. Xxxxx Xx., Xxxxxx, Xxxxx 00000, in the former
home of the Dallas Federal Reserve Bank, which enables DPGS and the Company to
benefit from a state-of-the art infrastructure facility, while not having to
commit significant resources, capital or human, to the build-out and ownership
of the infrastructure. The ability to expand capacity and scalability
requirements (space, power, networking and redundancy capability) is virtually
without limitation.
Security
of the installed assets, information, applications and client data are of
paramount importance. Security at the Datacenter is provided on a 24/7/365
basis. Card access is required to gain access, along with biometric hand
scanning upon entry, and annual SAS 70 Audits are performed to ensure the
delivery of services at the highest possible levels.
Uptime of
the website is essential for the Company to provide consistent and reliable
services to our users. To ensure this level of service, our systems have
reliable UPS/Backup Generators and reliable utility power. The UPS/Backup
Generator power supply provides: true A+B power configurations, all UPS and
Generator deployments provide N+1 redundancy, 800KVA MGE UPS Systems, 1200 KVA
CAT UPS Systems, 2.0 megawatt generators, 1.5 megawatt generators. There
are six utility feeds from the CBD grid, N+3 Transformers with ATS switches and
the feeds to building are concrete encased.
Cooling
systems employ 3,500 Ton cooling tower capacity, 00 Xxx Xxxxxxx XXXX Xxxxx,
designed with N+1 redundancy and 80,000 gallon reserve make-up water
tank.
Network
For the
Internet, the network architecture utilizes redundant N+1 Core and N+1 access
Foundry XMR, MLX and Cisco 6500 routers to provide a Highly Redundant and Highly
Available Multi-Homed Internet Aggregation Hub. This coupled with multiple
10 Gigabit IP trunks from multiple Tier 1 Internet service providers makes the
IP Hub would be considered highly robust. Embedded sFlow per port supports
scalable hardware-based traffic monitoring across all switch ports without
impact performance. Connectivity is provided to Databank by multiple
vendors including: AboveNet, AirBand, Cogent, Time Warner, XO, Looking Glass,
Xxxxx 0, XxxxxXxxx Xxxxxxxx, XxxxxXxxxx, XXX, Xxxxx, Consolidated
Communications, Texas Lone Star Network, TerraStar, Clearwire Communications,
Current Communications and Verizon. The CBD fiber optic network is built
upon 432 strands of fiber and available duct. The Company benefits from
Databank’s significant level of redundancy and the users of the Company’s
offering benefit from the consequent reliability of services which the Company
can offer.
Application
The
Company’s system, licensed from DPGS, utilizes what is referred to as an
“n-tiered” architecture for reliability, scalability and redundancy. The
system is comprised of multiple applications which manage the functionality and
business logic between databases, Web portal and back-office applications.
The core application is developed in Java, .Net 2.0 and utilizes various
state-of-the- art tools for the Graphical User Interface. This allows
rapid development and deployment of future enhancements.
Rigorous
Methodologies and Procedures are utilized for: Application
Development and Deployment, Quality Assurance, Standardize Style Guide, Project
Management, Offshore Development, Change Management Control, Testing and Quality
Measurement Standards.
Infrastructure
The
following diagram is a graphical representation of the Company’s current and
future infrastructure design:
SCHEDULE
B
[Intentionally
Omitted—Schedule B does not exist]
SCHEDULE
C
CONFIDENTIAL
[date]
[addressee]
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Re:
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Confidentiality
Agreement
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Ladies
and Gentlemen:
Pursuant
to the terms of that certain Licensing Agreement (“Licensing Agreement”) dated
April 15, 2010 among Demand
Pooling Global Services LLC, (“Licensor” or “DPGS”), and Accelerated Acquisitions V,
Inc., (“Recipient”) the undersigned may gain access to certain
confidential information related to the Licensor, including but not limited to
confidential information regarding its intellectual property. As a
condition to entering into the Licensing Agreement, Recipient agrees with
respect to any such information together with any additional non-public
information furnished to Recipient regarding the Licensor, either prior to or
after the date of this letter, as follows:
Recipient
agrees to treat such information and any information prepared by the Licensor or
any of its affiliates which is furnished to it, regardless of the manner in
which it is furnished, together with analyses, compilations, studies or other
documents or records prepared by Recipient or any of its agents or advisors
(including without limitation, employees, attorneys, accountants, consultants,
bankers and advisors) (collectively, "Representatives") to the extent that such
analysis, compilations, studies, documents or records contain or otherwise
reflect or are generated from such information (hereinafter collectively
referred to as the "Confidential Material") in accordance with the provisions of
this agreement. The term Confidential Material does not include
information which (i) was or becomes generally available to the public other
than as a result of disclosure by Recipient or its Representatives, (ii) was or
becomes available to Recipient on a non-confidential basis from a source other
than the Licensor or its advisors provided that the source is not known to
Recipient to be bound by a confidentially agreement with the Licensor, or
otherwise prohibited from transmitting the information to Recipient by a
contractual, legal or fiduciary obligation or (iii) was within Recipient's
possession prior to its being furnished to Recipient by or on behalf of the
Licensor, provided that the source of such information was not bound by a
confidentiality agreement with the Licensor or otherwise prohibited from
transmitting the information to Recipient by a contractual, legal or fiduciary
obligation.
Recipient
hereby agrees that the Confidential Material will be used solely for the purpose
of conducting the business of Recipient and that such Confidential Material will
be kept confidential by Recipient and its Representatives; provided, however,
that (a) any such information may be disclosed to Recipient's Representatives
who need to know such information for the purpose of conducting Recipient’s
business (it being understood that such Representatives shall be directed by
Recipient to treat such information confidentially and Recipient will provide
each of its Representatives with a copy of this Agreement and obtain such
Representatives’ written acknowledgement of this Agreement) and (b) disclosure
of such information may be made to which the Licensor consents in writing.
In any event, Recipient shall be responsible for any breach of this agreement by
any of its Representatives and Recipient agrees, at its sole expense, to take
all reasonable measures (including but not limited to court proceedings) to
restrain its Representatives from prohibited or unauthorized disclosure or use
of the Confidential Material. Recipient further agrees that the
Confidential Material which is in written form shall not be copied or reproduced
at any time without the prior written consent of the Licensor.
Recipient
agrees that neither the Confidential Material, nor any part of it, will be used
by Recipient for any purpose other than the specifically licensed uses thereof
or which might be construed in any manner to be competitive with the Licensor's
business as disclosed in the Confidential Material.
Recipient
understands and acknowledges that any and all information contained in the
Confidential Material is being provided without any representation or warranty,
express or implied, as its accuracy or completeness. Recipient agrees that
the Licensor or any of its Representatives shall have no liability to Recipient
or any of its Representatives resulting from the use of the Confidential
Material by Recipient or any of its Representatives.
It is
understood and agreed that money damages would not be a sufficient remedy for
any breach of this agreement and that the Licensor shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach and Recipient further agrees to waive any requirement for security or the
posting of any bond in connection with such remedy. Such remedy shall not
be deemed to be the exclusive remedy for breach of this agreement but shall be
in addition to all of the remedies available at law or equity to the
Licensor.
In the
event of litigation relating to this agreement, if a court of competent
jurisdiction determines in a final, non-appealable order that a party has
breached this agreement, then such party shall be liable and pay to the
non-breaching party the reasonable legal fees such non-breaching party has
incurred in connection with such litigation, including any appeal
therefrom. Any action to enforce this agreement shall be brought in the
State of Texas and be governed by applicable Texas law.
Recipient's
obligations under this agreement shall stay in effect for the term of the
Licensing Agreement and will expire only when applicable protections afforded
the patented technology expire. Wherever possible, each provision of this
agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this agreement shall be prohibited
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this agreement which shall be
broadly construed in favor of protecting the Licensor's interest in
confidentiality.
If
Recipient agrees with the foregoing, please sign and return one copy of this
letter which will constitute our agreement with respect to the subject matter of
this letter.
Sincerely,
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DEMAND
POOLING GLOBAL SERVICES, LLC
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ACKNOWLEDGED AND AGREED:
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By:
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Date:
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