SALE OF TECHNOLOGY AGREEMENT
This Sale of Technology Agreement ("Agreement") is made and effective this
21 day of November 1999, by and between e-commerce Solutions, Inc. ("Buyer"),
and Xxxxxxx Xxxxxxx ("Seller").
Seller has developed and owns all rights to certain computer software in
development as more fully described on Schedule A.
Buyer wishes to purchase, and Seller wishes to sell, such software, the
related goodwill and all other associated property rights, including all
copyrights and all rights to enhanced, modified and updated versions and
derivative works related thereto.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
1. Transfer. (a). Software. Seller hereby sells, assigns, conveys and
transfers to Buyer all of Seller's right, title and interest in and to the
following described computer software (the "Software"): A software platform
engine in development that will create an ability to mass produce e-commerce web
sites, manage said sites and administration.
The Software shall include, but is not limited to :
(i) The Software in development in all versions and all forms of
expression thereof, including but not limited to proprietary rights and
intellectual property contained therein or connected therewith.
(b) Delivery.
(i) The Software in development shall be delivered to Buyer upon the
execution of this Agreement. Seller shall from time to time, but without further
consideration, execute and deliver such instruments or documents and take such
other action as is reasonably necessary which Buyer may request in order to more
effectively carry out this Agreement and to vest in Buyer the Software and title
thereto.
2. Representations and Warranties of Seller. Seller represents, warrants
and covenants as follows:
(a) Title; Infringement. Seller has good and marketable title to the
Software in development, and has all necessary rights to enter into this
Agreement without violating any other agreement or commitment of any sort.
Seller does not have any outstanding agreements or understandings, written or
oral, concerning the Software. The Software does not infringe or constitute a
misappropriation of any trademark, patent, copyright, trade secret, proprietary
right or similar property right. Seller agrees to defend, indemnify and hold
Buyer, its subsidiaries, affiliates and licensees harmless against any action,
suit, expense, claim, loss, liability or damage based on a claim that the
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Software infringes or constitutes a misappropriation of any trademark, patent,
copyright, trade secret, proprietary right or similar property right. Buyer
shall give Seller prompt written notice of any such claim. Seller shall assume
responsibility for defending any suit or proceeding brought against Buyer based
on any claim that the Software infringes or constitutes a misappropriation of
any trademark, patent, copyright, trade secret, proprietary right or similar
property right; provided, however, that Buyer shall give Seller prompt notice in
writing of the assertion of any such claim and of the threat or institution of
any such suit or proceeding, and all authority, information and assistance
required for the defense of the same. Seller shall pay all costs awarded against
Buyer, but shall not be responsible for any cost, expense or compromise incurred
without Seller's consent.
(b) No Liens. The Software is not subject to any lien, encumbrance,
mortgage or security interest of any kind. Seller's conveyance of the Software
shall be free of any such interest.
(c) Authority Relative to this Agreement. This Agreement is a legal,
valid and binding obligation of Seller. The execution and delivery of this
Agreement by Seller and the performance of and compliance by Seller with the
terms and conditions of this Agreement will not result in the imposition of any
lien or other encumbrance on any of the Assets, and will not conflict with or
result in a breach by Seller of any of the terms, conditions or provisions of
any order, injunction, judgment, decree, statute, rule or regulation applicable
to Seller, the Software, or any note, indenture or other agreement, contract,
license or instrument by which any of the Software may be bound or affected. No
consent or approval by any person or public authority is required to authorize
or is required in connection with, the execution, delivery or performance of
this Agreement by Seller.
(d) No Default. There is no outstanding default by the Seller in
connection with the Software.
4. No Brokers. All negotiations relative to this Agreement have been
carried on by Buyer directly with Seller, without the intervention of any person
as the result of any act of Buyer or Seller (and, so far as known to either
party, without the intervention of any such person) in such manner as to give
rise to any valid claim against the parties hereto for brokerage commissions,
finder's fees or other like payment.
5. Consents, Further Instruments and Cooperation. Seller represents no
consent or approval by any person is required in order to permit it to
consummate the transactions contemplated hereby. Seller agrees to execute and
deliver such instruments and to take such other action as may be required to
carry out the transaction contemplated by this Agreement. Seller shall execute,
or cause its employees and agents to execute, any patent or copyright
application or other similar document or instrument, following Buyer's
reasonable request.
6. Limitation of Liability. OTHER THAN AS SET FORTH IN SECTION 3.A. OR
UPON THE BREACH OF ANY WARRANTY, NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE
OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR ANY PERFORMANCE
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HEREUNDER, EVEN IF SUCH PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES, WHETHER BASED ON A THEORY OF CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE.
7. Buyer's Use of the Software. Buyer may, at its sole discretion, market,
license and sell the Software under names and trade names of its own choosing,
and may develop updated and modified versions and derivative works of the
Software without attribution of authorship to Seller. Buyer shall own all rights
and title, including copyrights, in and to updated and modified versions and
derivative works of the Software without requiring permission from Seller and
without incurring payment obligations in addition to those provided herein.
Buyer may market or use the Software in whatever manner and at whatever prices
it sees fit.
8. Seller's Non-Use of the Assets. Seller retains no rights whatsoever in
the Software and does not retain the right to use the Software or any material
relating to the Software for any purpose, personal, commercial, or otherwise.
Seller furthermore shall maintain all information relating to the Software or
use of the Software in short confidence and shall not disclose any aspect of the
Software to any third party without the prior written consent of Buyer.
9. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
10. Assignment. Seller may not assign this Agreement or any obligation
herein without the prior written consent of Buyer. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and their
respective heirs, executors, personal representatives, successors and assigns.
11. Entire Agreement. This Agreement contains the entire understanding of
the parties, and supersedes any and all other agreements presently existing or
previously made, written or oral, between Buyer and Seller concerning its
subject matter. This Agreement may not be modified except by a writing signed by
both parties.
12. Severability. If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Agreement nevertheless will continue in full force
and effect without being impaired or invalidated in any way.
13. Notices. All notices, requests, demands, and other communications
hereunder shall be deemed to have been duly given if delivered or mailed,
certified or registered mail with postage prepaid:
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If to Buyer:
E-Commerce Solutions, Inc.
c/o Urban Cool Network, Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
with a copy to:
Xxxxxx Xxxxx, Esq.
Xxxxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Seller:
X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14. Relationship of the Parties. The relationship between Buyer and Seller
under this Agreement is intended to be that of buyer and seller, and nothing in
this Agreement is intended to be construed so as to suggest that the parties
hereto are partners or joint venturers, or either party or its employees are the
employee or agent of the other. Except as expressly set forth herein, neither
Buyer nor Seller has any express nor implied right or authority under this
Agreement to assume or create any obligations on behalf of or in the name of the
other or to bind the other to any contract, agreement or undertaking with any
third party.
15. Headings. Headings used in this Agreement are provided for convenience
only and shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
[Buyer] _____________________ [Seller] _______________________
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