EXHIBIT 10.6
MACOLA SOFTWARE AGREEMENT
I/OMAGIC CORPORATION AND
ENTERPRISE WIDE COMPUTING, INC.
DATED OCTOBER 13, 1997
MACOLA SOFTWARE AGREEMENT
THIS MACOLA SOFTWARE AGREEMENT (this "Agreement"), dated for references
purposes only as of October 13, 1997 is entered into by and between ENTERPRISE
WIDE COMPUTING, INC., a California corporation ("Enterprise"), and I/OMAGIC
CORPORATION, a Nevada corporation ("IOM").
WHEREAS, IOM would like to purchase a Macola Software program
("Software") to enhance its operations and inventory systems.
WHEREAS, Enterprise would like to sell licensing rights, train and
install the Macola Software for IOM.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
ARTICLE I
GRANT OF LICENSE
SECTION 1.1 GRANT OF LICENSE. Upon the terms and conditions set
forth herein, Enterprise hereby grants IOM and IOM hereby accepts a
worldwide, nonexclusive, perpetual license (the "Site License") to use the
Software.
SECTION 1.2 COPYING THE SOFTWARE IOM may copy the Software only
with the written consent of Enterprise, which consent may be withheld in
Enterprise' sole and absolute discretion.
SECTION 1.3 TITLE TO THE SOFTWARE. The Software and all Licensed
Materials related thereto shall be the sole property of Enterprise. IOM shall
not modify, copy decompile, reverse engineer or disassemble the Software, in
whole or in part, nor embed the Software into any other program or software
unless expressly authorized in writing by Enterprise.
SECTION 1.4 DEFAULT. If either party shall at any time commit any
material breach of this agreement and shall fail to commence to cure such breach
within thirty (30) days after written notice of such breach, the non-defaulting
party may terminate this Agreement upon notice to the defaulting party. Upon the
termination of this Agreement, the non-defaulting party may exercise all of its
rights and remedies under this Agreement, at law or in equity.
ARTICLE II
MAINTENANCE AND SUPPORT
Enterprise agrees to provide IOM with training and support assistance
pursuant to the terms of Exhibit "A" attached hereto.
ARTICLE III
FINANCIAL OBLIGATIONS
SECTION 3.1 FEES. As consideration for the granting of the
Licenses to IOM, IOM shall deliver to Enterprise as and for the final price
the sum of nine thousand (9,000) unrestricted and free trading shares of
I/OMagic Corporation common stock ("Shares"), which are traded on the
OTC/Bulletin Board, such consideration being the purchase price, payable upon
execution of this Agreement. These Shares shall be delivered to Enterprise
one hundred twenty (120) days from the date of this Agreement. The stock
certificate shall be issued and delivered to Enterprise within ten (10) days
of the date of this Agreement. The Shares shall be duly and validly issued,
fully paid and nonassessable and free of liens, encumbrances and restrictions
on transfers other than restrictions applicable by state and federal law. The
Shares acquired by Enterprise are derived from affiliates and/or insiders of
the Company and may be subject to certain restrictions under Federal or State
securities laws. The issuance of Shares to Enterprise shall constitute
payment in full by IOM.
SECTION 3.2 NO REPRESENTATIONS/DISCLAIMER. Enterprise acknowledges
and agrees that, except as expressly provided in this Agreement, neither IOM
nor any agents, representatives or employees of IOM have made any
representations or warranties, direct or indirect, oral or written, express
or implied to Enterprise or any agents, representatives, or employees of
Enterprise, with respect to the Shares of IOM, including without limitation
the current or future value of the Shares or the past, present or future
financial condition or performance of IOM. Enterprise acknowledges and agrees
that it not acquiring the Shares in reliance on any information provided by
IOM or IOM's agents, representatives, or employees. IOM specifically
disclaims any
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warranty, guaranty or representation, oral or written, past or present, express
or implied, concerning the Shares of IOM, except as expressly set forth in this
Agreement. Further Enterprise holds harmless from all liability, loss, cost,
claim, suit, judgment or expense (including, without limitation, reasonable
attorneys' fees and costs) arising out of or in any way related to these Shares.
SECTION 3.3 TAXES AND ASSESSMENTS. The parties agree that any
federal state or local sales or other taxes, levies or assessments (including
related interest and penalties) imposed, levied, assessed or arising by
virtue of Fees, other than taxes based upon the net income of Enterprise,
shall be the liability and responsibility of IOM.
ARTICLE IV
WARRANTIES, INDEMNIFICATION AND LIMITATION OF LIABILITY
SECTION 4.1 WARRANTY. Enterprise hereby assigns to IOM any and all
warranties with respect to the Software which it obtains from Macola including
without limitation the warranties that (i) all Software delivered hereunder is
free from material error, malfunctions and defects for thirty (30) days from the
date of this Agreement, (ii) the Software will execute without material error or
malfunction and (iii) the Software conforms in all material respects to the
Software's documentation. ENTERPRISE DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE SOFTWARE AND
THE LICENSED MATERIALS. NEITHER PARTY SHALL BE LIABLE FOR ANY OTHER LEGAL OR
EQUITABLE THEORY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 4.2 TITLE. Enterprise warrants that Enterprise and its
affiliated corporations have to right to sell the Software. Enterprise
represents and warrants that the Software is original and has not been used
prior to its sale to IOM.
SECTION 4.3 INDEMNITY. Enterprise agrees to hold IOM and its
agents, representatives, and employees harmless from all liability, loss,
cost, claim suit, judgment or expense (including, without limitation,
reasonable attorneys' fees and costs) arising out of or in any way related to
an infringement of any patent or copyright or a violation of any trade secret
or other proprietary right of any third party in the Software. Enterprise, at
its option, may obtain for IOM the right to continue using, or to replace or
modify the Software involved so that it becomes non-infringing; or, if such
remedies are not reasonably available, grant IOM a refund of all fees paid to
Enterprise under this Agreement. The provisions of this section and the
obligations of Enterprise set forth herein shall survive the expiration of
other termination of this Agreement.
SECTION 4.4 MISCELLANEOUS WARRANTIES. Enterprise and IOM each
represent (as to itself) to each other that:
(a) It is duly organized, validly existing and in good
standing under the laws of its state of formation.
(b) It has all requisite power and authority to execute
this Agreement and te the consummatransactions contemplated hereby.
(c) The execution of this Agreement and performance
hereunder shall not constitute a default or conflict with any agreement or
instrument to which it is a party.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.1 CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND ITS PERFORMANCE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 5.2 NOTICES. All notices and communications required by or
relating to this Agreement shall be in writing and shall be deemed duly given
three (3) days after it is deposited, postage prepaid, return receipt
requested in the United States mail to the respective party at the following
addresses:
To Enterprise: Enterprise Wide Computing, Inc.
00000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: _____________________________
To IOM: I/OMagic Corporation
6B Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
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With copy to: Xxxxxxx & Xxxx
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
SECTION 5.3 ASSIGNMENT. This Agreement shall not be assignable
without the express written consent of the non-assigning party.
SECTION 5.4 SEVERABILITY. If any provision of this Agreement is
declared invalid, such provision shall be modified to the extent necessary to
cure its invalidity and this Agreement shall otherwise remain in full force and
effect.
SECTION 5.5 NO AGENCY. Except as expressly provided herein, this
Agreement does not create any relationship of agency, partnership or employment
between the parties.
SECTION 5.6 CONFIDENTIALITY. Neither party shall disclose the
contents of this Agreement without the prior written consent of the other
party.
SECTION 5.7 HEADINGS. The descriptive headings are inserted for
reference only and do not limit, expand or otherwise affect the meaning or
construction of the language of this Agreement.
SECTION 5.8 COUNTERPARTS. This Agreement may be executed in
several counterparts and each executed counterpart shall be considered an
original of this Agreement.
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SECTION 5.9 INTEGRATION. This Agreement and the attached Exhibit
constitute the entire Agreement between the parties and shall supersede all
proposals or prior Agreements, oral or written, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement shall not be varied by any oral agreement or representation or by
other than an instrument in writing dated after this Agreement as signed by both
parties.
SECTION 5.10 FURTHER ASSURANCES. The parties agree that they will
execute and deliver such further documents and do such further acts as the other
party may reasonably request in order to accomplish the purposes of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates indicated below:
ENTERPRISE WIDE I/OMAGIC CORPORATION
COMPUTING, INC. a Nevada corporation
a Nevada corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------- ---------------------
Name: Xxxxx Xxxxxxx Name: Xxxx Xxxxxxx
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Title: V.P. Finance Title: President
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Date: 12/1/97 Date: 12/2/97
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