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”), 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 “DEPO 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:
|
|
(a)
|
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;
|
|
|
(b)
|
Singular
words will include the plural and plural words will include the
singular;
|
|
|
(c)
|
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;
|
|
|
(d)
|
A
word importing a particular gender will include each other gender;
and
|
|
|
(e)
|
A
reference to a party to this Agreement includes that party's heirs,
executors, administrators, successors and permitted
assigns.
|
1.2 Definitions.
In this Agreement, unless inconsistent with or excluded by the
context:
|
|
(a)
|
“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;
|
(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, 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;
(f) “Licensed
Products” means products which, in the absence of the License, would infringe
the Licensor’s intellectual property rights in the Technology;
(g) “Original
Invention” means a certain invention entitled “DEPO Technology” as further
described in Schedule "A" attached hereto;
(h)
“Technology” means certain technology known as
“DEPO Technology” and includes the Original Invention, any improvements thereof
and any Internet platform which embodies the DEPO Technology and any
improvements thereof or thereto;
(i) “Territory”
means worldwide; and
(j) “Trade-Xxxx”
means and trade-xxxx or trade-name as may be adopted for use on the Licensed
Products from time to time.
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 an exclusive, non-transferable, 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 two percent (2.0%) 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:
|
(i)
|
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.
|
|
|
(ii)
|
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.
|
|
(iii)
|
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.
|
|
|
(iv)
|
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.
|
|
|
|
(f) Licensee
shall pay Licensor a royalty of one and one-quarter percent (1.25%) 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, and Licensor will not directly or indirectly compete with
Licensee, nor the license, authorize or permit any third party to compete with
Licensee with respect to the use of the Technology.
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, 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
partners or joint ventures 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 until the expiry of protections afforded the
Technology, 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 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 from the date of execution
of this Agreement by all parties ("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 extended 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:
(i)
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;
(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)
fund 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:
(a) 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
(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;
(b) 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;
(c) tendering
payment of all accrued royalties and other payments due to Licensor as of the
date of the notice of termination; and
(d) 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.
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:
|
|
(a)
|
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;
|
|
|
(b)
|
Nothing
in this Agreement will be construed to release either party from any
obligation that matured prior to the effective date of termination;
and
|
|
|
(c)
|
The
provisions of Articles 5, 6, 7 and 8 shall survive any termination or
expiration of this Agreement
|
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:
ACCELERATED
ACQUISITIONS V, INC.
|
/s/ Xxxxxx X.
Xxxxx
|
By:
Xxxxxx X. Xxxxx, Director
DEMAND
POOLING GLOBAL SERVICES LLC
|
/s/ Xxxxxxx X.
Aland
|
By: Xxxxxxx X. Aland, Director
SCHEDULE
A
INTELLECTUAL
PROPERTY:
DEPO’s
intellectual Property consists of the following components developed and
designed advance a business concept (“Business Concept”) and it is this Business
Concept combined with the technology and Company expertise for which DEPO is
seeking patent protection.
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 target market, purchase on a repetitive basis. While
the Business Concept is equally applicable for non-state and local governmental
entities, such as utilities and a variety of others, DEPO has chosen to
initially target the state and local governmental marketplace.
The
Business Concept has, as its core product, the aggregation of demand for
high-ticket capital equipment and selected commodities. DEPO’s
proprietary software facilitates cooperative purchases of similar products, even
though each individual participant may maintain its own unique product
specifications. Secondly, in order to favorably impact the various
and disparate entities’ abilities to participate, DEPO will facilitate pooled
financing in a manner that results in greater financing flexibility for the
participants, as well as improved “marketability” of their financing
instruments, improved pricing, terms and conditions. In addition, in
order to purchase new capital equipment, most buyers must typically dispose of
older equipment and the Company will offer the ability to auction, on a global
basis, in order to improve the “recovery” on the disposal of surplus equipment,
ultimately resulting in more funding available for purchase of new equipment and
lower life-cycle costing for equipment they employ.
Graphically,
the following illustrates the overall Business Concept:
SYSTEM
TECHNOLOGY:
Datacenter
The DEPO
system utilizes 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 DEPO 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 our 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 DEPO 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 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.
Application
The DEPO
system 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:
