SOFTWARE LICENSE AGREEMENT
Exhibit 10.3
THIS SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into as of December 4, 2017, by and between Envoy Group Corn, (“Licensor”), soon to be renamed Black Cactus Global, Inc, a Florida corporation, and Milestone Group PLC, (“Licensee”) a United Kingdom corporation. Licensor and Licensee may hereinafter be referred to individually as a “Party” and collectively as, the “Parties.”
RECITALS
WHEREAS, Licensor is the exclusive licensee, and has rights in and to, certain proprietary Software, Know-How, and Copyrights as set forth on Schedule A hereto (collectively, the “Sublicensed Materials”) which Licensor licensed from Black Cactus Holdings Pty Ltd, a company incorporated in the State of Victoria, Australia (“Black Cactus Australia”);
WHEREAS, Licensee wishes to acquire a sub-license from Licensor for the Sublicensed Materials; and
WHEREAS, Licensor is willing to grant Licensee a non-exclusive sub-license and Licensee desires to obtain an non-exclusive sub-license, to the Sublicensed Materials on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. In addition to the definitions set forth above, the capitalized terms set forth below shall be defined as follows:
“Copyrights” means all registered and unregistered materials, works of authorship and similar materials relating to the Software belonging to Licensor.
“Derivative Work” means any discrete modification to the Sublicensed Materials made by Licensee pursuant to this agreement and any modified, altered, enhanced or adapted version of the Sublicensed Materials, or derivative work thereof (as that term is defined under US copyright law) based on the Sublicensed Materials.
“Know-How” means all information and know-how, including, but not limited to, technical, and other information, practices, techniques, methods, processes, inventions, developments, specifications, coding, algorithms, trade secrets and similar information Licensor currently maintains.
“Material Adverse Effect” means, with respect to any Party any event, circumstance, development, state of facts, occurrence, change or effect that is materially adverse to the business, assets, results of operations or condition (financial or otherwise) of such Party taken as a whole.
“Software” means the computer software program(s) in machine-readable form, including as applicable, all of its source code, input/output formats, headers, program listings, associated data and internal databases, graphical elements, narrative descriptions and operating instructions, and all related tangible media.
“Trademarks” means all registered and unregistered names, trademarks, service marks, trade dress, logos, insignias, domain names, symbols, slogans, and combinations thereof relating to the Software belonging to Licensor.
“Transaction Documents” means this Agreement and all other agreements, instruments and documents required to be delivered by the Parties to complete the transaction contemplated thereby.
2. LICENSE GRANT; TERM; TERMINATION; OWNERSHIP.
2.1 License Grants. Subject to the terms and conditions of this Agreement, at the Closing, as defined herein, Licensor shall grant to Licensee, under all of Licensor’s exclusive worldwide license of the intellectual property
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rights in and to the Sublicensed Materials, an exclusive sublicense for the British Isles, British Overseas Territories and Crown Dependencies and as defined from time to time by the British Government (the Territory”), non-transferable, excluding those British Overseas Territories and Crown Dependencies covered by the Sublicense granted by the Licensor for the Caribbean and Panama, fully paid-up, irrevocable, perpetual license to use, sublicense and create Derivative Works using the Sublicensed Materials, such rights to include media publishing which covers, but is not limited to, music, video and movie (the “License Grant”). Additionally, the Licensee will be able to market the Sublicensed Materials and Derivative Works to its customer base only, outside the Territory.
2.2 Term.
2.1 Term. Subject to the terms and conditions of this Agreement, the License Grant shall remain in effect in perpetuity (the “Term”).
2.2 Termination. In the event a Party breaches any material term or condition of this Agreement (subject to the following cure periods), the non-breaching Party may terminate this Agreement. Any termination of this Agreement shall only be effective if, after receiving written notice from the non-breaching Party of the breach, the Party in breach shall fail to cure such breach within thirty (30) days after receiving such notice provided, however that if the breach cannot be cured within thirty (30) days, the breaching Party shall not be in default if, within such thirty (30) day period, it shall have commenced to cure said breach and shall continue its efforts with due diligence. In no event shall the non-breaching Party by exercising its right under this section be precluded by the exercise of such termination right from pursuing, subject to the terms of this Agreement and applicable law, any cause of action or other claim it may then or at any time thereafter have in respect of any breach or default by the Party that breached this Agreement.
2.3 Ownership. During the Term, Black Cactus Australia shall retain all right, title and interest, including all intellectual property rights, in and to the Sublicensed Materials. Licensee shall own all right, title and interest in any Derivative Works to the Sublicensed Materials made by Licensee, subject to Black Cactus Australia and Licensor’s ownership of the underlying Sublicensed Materials and the restrictions on use of the Sublicensed Materials contained herein.
2.4 Reservation of Rights. All rights not expressly granted by Licensor hereunder are reserved to Licensor. Without limiting the generality of the foregoing, Licensor and Licensee expressly acknowledge that nothing contained herein shall be construed or interpreted as a grant, by implication or otherwise, of any licenses other than the licenses specified in Section 2.1.
3. CONSIDERATION FOR LICENSE GRANT; ADEQUACY OF CONSIDERATION.
3.1 Term Payment. Subject to the terms and conditions of this Agreement, as consideration for Licensor providing Licensee with the License Grant for the Term, Licensee shall pay Licensor a fee (the “License Fee”) consisting of:
(a) Upon the execution of this Agreement sufficient fully paid Ordinary Shares of the Licensee which represents Twenty Nine and One Half percent (29.5%) of the then Issued Capital of the Licensee (the “Fee”), free and clear of all taxes upon, subject to receiving all necessary regulatory approvals from the AIM Exchange; and
(b) A royalty in the amount of Ten percent (10%) (the “Royalty”) of the gross revenue received up to British Pounds Five Hundred Thousand (GBP 500,000.00), and Five percent (5%) on all gross revenue in excess of this amount, from the sublicense of the Software and any revenues generated from the use of the Sublicensed Materials for the term of this Agreement. Licensee shall pay Licensor the Royalty due on a quarterly basis for each fiscal quarter during the term of this Agreement commencing six months after the date of this Agreement. The quarterly Royalty payment will be due on or before the sixtieth (60th) day after the last day of the fiscal quarter for which the Royalty payment is calculated, provided the Licensee has received all payments due to it under Schedule C for the relevant fiscal quarter. The Licensor shall have the right, upon reasonable notice, to inspect and/or audit the books and accounts of the Licensee for the purpose of this Clause and the verification of any payments due hereunder.
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3.2 Adequacy of Consideration. The Parties hereby agree that License Fee represents adequate consideration and that no additional consideration shall be paid by Licensee to Licensor for the Sublicensed Materials.
4. CLOSING.
4.1 going. The closing of the granting of the License Grant for the Term under this Agreement (the “Closing”) shall occur at a place mutually acceptable to Licensor and Licensee on December 4, 2017, or such other date that is mutually acceptable to Licensor and Licensee (the “Closing Date”). All transactions which are to take place at the Closing shall be considered to have taken place simultaneously, and no delivery or payment shall be considered to have been made until all the transactions have been completed.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Each Party’s Obligation to Complete the Closing. The respective obligations of the Parties to complete the Closing are subject to the waiver by both Licensor and Licensee or the satisfaction, on or prior to the Closing Date, of the representations and warranties of each of Licensor and Licensee set forth below shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of such dates (except to the extent any such representation or warranty is made as of a specified date, which such representation or warranty shall be true and correct in all respects as of such specified date).
6. REPRESENTATIONS AND WARRANITES OF LICENSOR. Licensor hereby represents and warrants to Licensee as follows:
6.1 Organization and Qualification. Licensor is duly organized, validly existing and in good standing under the laws of the State of Florida and has the requisite corporate power and authority to carry on its business as it is now being conducted.
6.2 Ownership of Sublicensed Materials. Licensor has good and marketable license to the Sublicensed Materials, free and clear of any and all mortgages, liens, encumbrances, pledges and security interests except as provided for in the license agreement between Licensor and Black Cactus Australia.
6.3 Brokers and Finders. Licensor has not incurred or taken any action that may give rise to any liability for brokerage fees, commissions or finder’s fees in connection with the transactions contemplated by this Agreement.
6.4 Noncontravention. Neither the execution and delivery of this Agreement and the Transaction Documents, nor the consummation of the transactions contemplated hereby and thereby, will (i) violate any constitution, statute, regulation, rule to which Licensor is subject or, to the knowledge of Licensor, any injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Licensor is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, license, instrument, or other arrangement to which Licensor is a party or by which he is bound or to which any of the Sublicensed Materials is subject (or result in the imposition of any security interest upon any of the Sublicensed Materials).
6.5 No Litigation. (a) There are no actions, suits, proceedings, hearings, investigations, charges, complaints, claims or demands of any kind pending or, to the best of the Licensor’s knowledge, threatened relating to or involving the Sublicensed Materials; (b) there are no injunctions, judgments, orders or decrees of any kind which are outstanding against the Sublicensed Materials; and (c) the Licensor is not charged or, to the best of Licensor’s knowledge, threatened with, or under investigation with respect to, any alleged violation of any provision of any law (including rules, regulations and codes) relating to or involving the Sublicensed Materials.
7. REPRESENTATIONS AND WARRANITES OF LICENSEE. Licensee hereby represents and warrants to Licensor as follows:
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7.1 Organization and Qualification. Licensee is a corporation duly organized, validly existing and in good standing under the laws of England and Wales and has the requisite corporate power and authority to carry on its business as it is now being conducted.
7.2 Authority. Licensee has all requisite corporate power and authority to execute and deliver this Agreement and to perform each of its respective obligations under this Agreement (and under all documents required to be executed and delivered and actions to be performed by Licensee pursuant hereto). The execution, delivery and performance of this Agreement and the agreement contemplated hereby and the transaction contemplated hereby and thereby has been duly and validly authorized by corporate action on the part of Licensee.
7.3 Enforceability. This Agreement constitutes a valid and binding agreement of Licensee enforceable against it in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application with respect to creditors, (ii) general principles of equity and (iii) the power of a court to deny enforcement of remedies generally based upon public policy.
7.4 No Conflict or Violation. Neither the execution and delivery of this Agreement nor the consummation of the transaction and performance of the terms and conditions contemplated hereby by Licensee will (i) conflict with or result in a violation or breach of or default under any provision of the articles of incorporation, by-laws, or other similar governing documents of Licensee or any material agreement, indenture or other instrument under which Licensee is bound, or (ii) violate or conflict with any Law applicable to Licensee or the Sublicensed Materials.
8. NO WARRANTY.
8.1 THE LICENSED MATERIALS ARE OFFERED “AS IS,” AND LICENSOR GRANTS AND LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FINESS FOR A SPECIFIC PURPOSE OR NONINFRINGEMENT CONCERNING THE LICENSED MATERIALS OR ANY UPGRADES TO OR DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, LICENSOR GRANTS NO WARRANTY THAT, TO THE EXTENT APPLICABLE, THE LICENSED MATERIAL IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY.
9. MISCELLANEOUS
9.1 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party.
9.2 Governing Law; Jurisdiction; Venue. THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW RULES THAT WOULD DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
9.3 Arbitration; Waiver of Trial. Licensor and Licensee hereby agree that any dispute shall be submitted to final and binding arbitration and that the Parties shall not be entitled to a trial by jury.
9.4 Entire Agreement. This Agreement and any Appendices, Schedules and Exhibits hereto contain the entire agreement between the Parties with respect to the subject matter hereof and there are no agreements, understandings, representations or warranties, either written or oral, between the Parties other than those set forth or referred to herein.
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9.5 Payment of Expenses. Whether or not the transactions contemplated by this Agreement are consummated and, except as otherwise may be expressly provided herein, each party shall pay its own fees, expenses and disbursements and those of its respective agents, representatives, consultants, accountants and counsel incurred in connection with this Agreement and all other costs and expenses incurred in the performance and compliance with all conditions to be performed by such party under this Agreement.
9.6 Notices. Unless otherwise expressly provided in this Agreement, all notices required or permitted hereunder shall be in writing and deemed sufficiently given for all purposes hereof if (a) delivered in person, by courier or by registered or certified Mail to the Person to be notified, with receipt obtained, or (ii) sent by telecopy, telefax or other facsimile or electronic transmission, with “answer back” or other “advice of receipt” obtained, in each case to the appropriate address or number as set forth below. Each notice shall be deemed effective on receipt by the addressee as aforesaid; provided that, notice received by telex, telecopy, telefax or other facsimile or electronic transmission after 5:00 p.m. at the location of the addressee of such notice shall be deemed received on the first Business Day following the date of such electronic receipt.
Notices to Licensor shall be addressed as follows:
Envoy Group Corp.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
or at such other address or to such other telecopy, telefax or other facsimile or electronic transmission number and to the attention of such other person as Licensor may designate by written notice to Licensee.
Notices to Licensee shall be addressed to:
Milestone Group PLC
00 Xxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Chief Executive Officer
or at such other address or to such other telecopy, telefax or other facsimile or electronic transmission number and to the attention of such other person as Licensee may designate by written notice to Licensor.
9.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided, however, that the respective rights and obligations of the Parties shall not be assignable or by any Party without the express written consent of the non-assigning or non-delegating Party, such consent shall not unreasonably be withheld.
9.8 Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Party against whom enforcement of any such modification or amendment is sought which instrument and expressly identified as a modification or amendment. Any Party may, only by an instrument in writing and expressly identified as a waiver, waive compliance by another Party with any term or provision of this Agreement on the part of such other Party to be performed or complied with. The waiver by any Party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
9.9 Appendices, Schedules and Exhibits. All Appendices, Schedules and Exhibits hereto which are referred to herein are hereby made a part of this Agreement and incorporated herein by such reference.
9.10 Interpretation. It is expressly agreed that this Agreement shall not be construed against any Party, and no consideration shall be given or presumption made, on the basis of who drafted this Agreement or any particular
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provision hereof or who supplied the form of Agreement. Each Party agrees that this Agreement has been purposefully drawn and correctly reflects its understanding of the transaction that this Agreement contemplates. In construing this Agreement:
(a) examples shall not be construed to limit, expressly or by implication, the matter they illustrate;
(b) the word “includes” and its derivatives means “includes, but is not limited to” and corresponding derivative expressions;
(c) a defined term has its defined meaning throughout this Agreement and each Appendix, Exhibit and Schedule to this Agreement, regardless of whether it appears before or after the place where it is defined;
(d) each Exhibit and Schedule to this Agreement is a part of this Agreement, but if there is any conflict or inconsistency between the main body of this Agreement and any Exhibit or Schedule, the provisions of the main body of this Agreement shall prevail;
(e) the term “cost” includes expense and the term “expense” includes cost;
(f) the headings and titles herein are for convenience only and shall have no significance in the interpretation hereof; and
(g) “include” and “including” shall mean include or including without limiting the generality of the description of the preceding term.
9.11 Agreement for the Parties’ Benefit Only. This Agreement is for the sole benefit of Licensor, Licensee and their respective successors and assigns as permitted herein and no third party shall be entitled to enforce this Agreement, rely on any representation, warranty, covenant or agreement contained herein, receive any rights hereunder or be a third party beneficiary of this Agreement.
9.12 Severability. If any term, provision or condition of this Agreement, or any application thereof, is held invalid, illegal or unenforceable in any respect under any laws of the State of Florida (the “Law”), this Agreement shall be reformed to the extent necessary to conform, in each case consistent with the intention of the Parties, to such Law, and to the extent such term, provision or condition cannot be so reformed, then such term, provision or condition (or such invalid, illegal or unenforceable application thereof) shall be deemed deleted from (or prohibited under) this Agreement, as the case may be, and the validity, legality and enforceability of the remaining terms, provisions and conditions contained herein (and any other application such term, provision or condition) shall not in any way be affected or impaired thereby. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.
Licensee | Licensor |
|
|
By: /s/ A Xxxxxxx | By: /s/ Xxxxxxxx Xxxxxx |
Name: A Xxxxxxx | Name: Xxxxxxxx Xxxxxx |
Title: CEO | Title: Chairman |
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SCHEDULE A
SUBLICENSED MATERIALS
Black Cactus blockchain development platform that can be utilized to build a crypt° trading exchange, supporting crypto and fiat currencies, music publishing, distribution, supply chain, medical research and trials.
• Backstage HD - Whitelabel examples include Alchemy, Apprenticeships 4 England
• Backstage Media Publishing & Distribution - Examples include Xxxxxxxxxxx.xxx, xxxxxxxxxxxxxxx.xxx
• Banking OIP - Fintech, card payments, money transfer, lock box, banking services and financial trading
• Hub OIP - Social media, document management, supply chain, medical records etc Analytics OIP - Social media, platform tracking & surveillance
• Crypto Exchange
• Crypto Bank
• Crypto Transfer
• Crypto Trade
• Crypto Card
• Money Over IP
• Crypto Over IP
• Trading Over IP
• Exchange Over IP
• Social Media Analytics
• Blockchain Crowdfunding
• Blockchain Document Management
• Blockchain Music Publishing
• Blockchain Medical Records
• Blockchain OIP - Black Cactus Blockchain Development Platform
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SCHEDULE B
PRODUCTS
1 This schedule identifies the Products being sub-licenced under this Agreement which may be offered as either branded or white label versions Products and shall be deliverable within 30 days following the execution of this Agreement:
• KYC/AML
• Card Payment Programme
• Music 01P - Music publishing, Social Media Analytics, distribution and revenue collection
• Media 01P - Media publishing, Social Media Analytics, distribution & revenue collection
2 The Licensor will provide the following items for each identified Product within a reasonable time following the execution of this Agreement:
(a) Product Description and Functional specification;
(b) Pricing Model;
(c) Client Engagement Process;
(d) Product Support including 2nd and 3rd line support; and
(e) a mutually agreed Service Level Agreement.
3 As a condition to Closing, the Licensor undertakes and agrees that it will demonstrate the full functional operation of each Product and the Licensee will sign a Product acceptance document acknowledging the delivery and functionality of the Product.
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SCHEDULE C
REVENUE AND MARGIN DISTRIBUTION
1 The Licensee will receive a proportion of revenue for all and any agreements signed by the Licensor and its associated group companies as follows.
a) Agreements introduced by the Licensor within the Territory, — 50% of Net Margin
b) Agreements outside the Territory introduced by the Licensee - 20% of Net Margin
c) On all other Agreements, both within and outside of the Territory a commission of 1 1/2% of Gross Transaction Revenue received by the Licensor
2 For avoidance of doubt, in respect of 1(a) and 1(b) above, the Licensor’s reasonable sales and marketing costs, software adaptations and any fees due to a territorial Sublicensee only shall be subtracted from the gross margin when calculating Net Margin.
3 Payments due under this Schedule C shall be payable to the Licensee, without deduction of tax, within 60 days following the end of each fiscal quarter.
4 The Licensee shall have the right, upon reasonable notice, to inspect and/or audit the books and accounts of the Licensor for the purposes of this Schedule C and the calculation of any payments due thereunder.
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