EXCLUSIVE WORLDWIDE RESELLER AGREEMENT
This
Exclusive Worldwide Axiologix Agreement (the “Agreement”), dated as of the
27th day of August, 2010,
BETWEEN
|
Edumedia
Software Solutions Corporation
|
|
|
Parkway
Plaza
|
|
|
000
Xxxxxxxxx Xxxx.
|
|
|
Xxxxxxx,
Xxx Xxxxxx 00000
|
("Edumedia")
|
AND
|
Axiologix
Education Corporation
|
|
|
Egg
Harbor Township, New Jersey 08234
|
(“Axiologix”)
|
WHEREAS:
|
A.
|
Edumedia
is engaged in the development of educational software programs and
services identified on Exhibit A to
this Agreement, as the same may be modified from time to time (the “Software and Services”)
; and
|
|
B.
|
Edumedia
wishes to grant to Axiologix the exclusive worldwide rights to market and
distribute the Software and Services on the terms and subject to the
conditions of this Agreement.
|
NOW, THEREFORE, THIS AGREEMENT
WITNESSES THAT in consideration of the premises and mutual covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound hereby, agree as follows:
|
1.
|
Agreement
|
|
(a)
|
Edumedia
grants to Axiologix a worldwide, exclusive, transferable right and license
(with the right to sublicense any and all of the rights granted below),
under all of Edumedia’s Intellectual Property Rights (as defined below) or
any other rights owned or granted to Edumedia by right, title or
contract: (a) to use, display, copy, sell, market,
distribute (and to sell the access to and use of) the Software and
Services, and (b) to copy, display, use, modify and distribute the
Documentation and the Training and Marketing Materials (each, as defined
below) solely in connection with Axiologix’s demonstration, testing,
marketing and distribution of the Software and
Serivces.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 1 of
13
|
|
As
used herein:
|
|
|
“Documentation” means all
documentation and information in connection with the installation, use,
operation and development of the Software and Services, including, without
limitation, manuals, product templates, data models, and online and
offline help and user support
information.
|
|
|
“Intellectual Property
Rights” means all intellectual property rights throughout the
world, including all copyrights, copyright registrations and applications,
trademark and service xxxx rights (including trade dress), trademark
registrations and applications, service xxxx registrations and
applications, patent rights (including the right to apply therefore),
patent applications therefore (including the right to claim priority under
applicable international conventions) and all patents issuing thereon, and
inventions whether or not patentable, together with all utility and design
thereof, know-how, specifications, trade names, mask-work rights, trade
secrets, moral rights, author’s rights, algorithms, computer software,
rights in packaging, goodwill and other intellectual property rights, as
may exist now or hereafter come into existence, and all renewals and
extensions thereof, regardless of whether any of such rights arise
under the laws of the United States or any other state, country or
jurisdiction.
|
|
|
“Training & Marketing
Materials” means any training, marketing and collateral materials
for the Software and Services, including (without limitation) the
materials described in Exhibit B to
this Agreement.
|
|
(b)
|
Edumedia
will not offer for sale or sell (directly or indirectly) the Software and
Services, other than through Axiologix. Edumedia will promptly
refer to Axiologix all potential customer inquiries and sales leads in
respect of the Software and
Services.
|
|
(c)
|
Nothing
in this Agreement prohibits (or restricts in any way) Axiologix from distributing,
marketing, representing, dealing with, developing or having any interest
in any service or product that competes, directly or indirectly, with the
Software and Services.
|
|
2.
|
Consideration
|
As sole
consideration for the grant of the exclusive reseller rights granted by Edumedia
to Axiologix hereunder:
(a) R&D
Contribution. Axiologix has heretofore paid to Edumedia
$91,800 in cash as a contribution to Edumedia’s research and development costs
for the Software and Services.
(b) Upfront Stock
Issuance. Axiologix has heretofore issued to Edumedia 940,000
shares of Axiologix’s common stock, par value, $.001 per share (“Common Stock”).
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 2 of
13
(c) License
Fee.
|
(i)
|
Monthly License
Fee. For
each month during the term of this Agreement, Axiologix will pay to
Edumedia a monthly license fee (the “Monthly License Fee”)
equal to 50% of all revenue from sales of the Software and Services
actually collected by Axiologix during such
month.
|
|
|
(ii)
|
Monthly License
Report. Axiologix will submit to Edumedia electronically
(unless otherwise agreed to by the parties) within the first five business
days of each month a monthly license report and invoice in respect of the
preceding month. The monthly license report and invoice will set
forth calculation of the total Monthly License Fee for the preceding month
and the basis of calculation
thereof.
|
|
|
(iii)
|
License Fee and
Payment. In the event that Edumedia fails to notify
Axiologix of any disagreement within ten business days after receipt of
the monthly license report and invoice, such report shall be deemed
approved and binding. Upon receipt of a notice of disagreement, the
parties shall resolve such disagreement pursuant to Section 10.
Axiologix will pay the Monthly License Fee (or any undisputed portion
thereof in the event that Edumedia provides Axiologix with notice of
disagreement), by no later than the 30th day of the calendar month in
which it delivers such monthly license report and invoice, and any
disputed amount within 30 days of resolution of such
dispute.
|
|
|
(iv)
|
Option to Pay Monthly License
Fee in Cash or Common Stock. At its option, Axiologix
may pay any Monthly License Fee (A) in cash or (B) restricted shares of
Common Stock. If Axiologix elects to pay a Monthly License Fee
in restricted shares of Common Stock, the number of restricted shares of
Common Stock to be issued to Edumedia will be an amount equal to the
Monthly License Fee, divided by the
average of the VWAP (as defined below) for the five trading days
immediately preceding the date the Monthly License Fee is
paid.
|
|
|
The
term “VWAP” means,
for any date, (i) the daily volume weighted average price of the Common
Stock for such date on any of a national securities exchange, a national
automated quotation system or the over-the-counter electronic bulletin
board (or any similar organization or agency succeeding its
functions) that is the principal exchange or market on which the
Common Stock is trading or is quoted (an “Applicable Market”) as
reported by Bloomberg Financial L.P. (based on a trading day from 9:30
a.m. Eastern Time to 4:02 p.m. Eastern Time); (ii) if the Common Stock is
not then listed or quoted on an Applicable Market and if prices for
the Common Stock are then reported in the “Pink Sheets” published by the
Pink OTC Market, Inc. (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of
the Common Stock so reported; or (iii) in all other cases, the fair market
value of a share of Common Stock as determined by an independent appraiser
selected in good faith by Axiologix and reasonably acceptable to
Edumedia.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 3 of
13
|
|
(v)
|
All
shares of Common Stock to be issued under Section 2(c)(iv) will be
deemed “restricted securities” as defined in paragraph (a) of Rule 144
under the Securities Act of 1933, as amended (the “Securities Act”).
All shares of Common Stock to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration
requirements of the Securities Act, under Section 4(2) of the Securities
Act and the rules and regulations promulgated thereunder.
Certificates representing the shares of Common Stock to be issued
hereunder shall bear a restrictive legend in substantially the following
form:
|
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be offered for sale, sold, or
otherwise disposed of, except in compliance with the registration provisions of
such Act or pursuant to an exemption from such registration provisions, the
availability of which is to be established to the satisfaction of Axiologix.
“
|
|
(vi)
|
In
respect of any acquisition of shares of Common stock under this Agreement,
Edumedia represents, warrants and agrees
that:
|
|
|
(A)
|
It
is acquiring the shares of Common Stock for its own account and for
investment only and not with a view to distribution or resale thereof
within the meaning of such phrase as defined under the Securities
Act.
|
|
|
(B)
|
It
shall not dispose of any part or all of such shares of Common Stock in
violation of the provisions of the Securities Act and the rules and
regulations promulgated under the Securities Act by the Securities and
Exchange Commission and all applicable provisions of state securities laws
and regulations.
|
|
|
(C)
|
It
acknowledges being informed that the shares of Common Stock shall be
unregistered, shall be “restricted securities” as defined in paragraph (a)
of Rule 144 under the Securities Act, and must be held indefinitely unless
(1) they are subsequently registered under the Securities Act, or (2) an
exemption from such registration is
available.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 4 of
13
|
|
(D)
|
It
acknowledges that it has been afforded access to all material information
which it has requested relevant to their decision to acquire the shares of
Common Stock and to ask questions of Axiologix’s management and that,
except as set forth herein, neither Axiologix nor anyone acting on behalf
of Axiologix has made any representations or warranties to Edumedia which
have induced, persuaded, or stimulated Edumedia to acquire such shares of
Common Stock.
|
|
|
(E)
|
Either
alone, or together with its investment advisor(s), Edumedia has the
knowledge and experience in financial and business matters to be capable
of evaluating the merits and risks of the prospective investment in the
shares of Common Stock, and Edumedia is and will be able to bear the
economic risk of the investment in such shares of Common
Stock.
|
|
3.
|
Edumedia’s
Duties
|
|
(a)
|
Edumedia
will provide Axiologix with current versions of the Software and Services,
the Documentation and the Training & Marketing Material, in each case,
at such times and in such formats as Axiologix may reasonably
request.
|
|
(b)
|
Edumedia
acknowledges that research and development is an integral part of being
able to continue to improve functionality and meet the increasing business
needs of the education market. Edumedia will make such
research and development efforts related to the Software and Services as
are necessary to maintain and improve the performance of the Software and
Service. At least ten days before the end of each quarter, Edumedia
will provide Axiologix with a current version of Edumedia’s Software and
Services development roadmap, in such detail as Axiologix may reasonably
request. At least once per calendar quarter, Edumedia’s management
team responsible for the development roadmap will meet with
representatives of Axiologix to discuss Axiologix’s suggestions regarding
roadmap goals and the relative prioritization of those goals.
Edumedia will use commercially reasonable efforts to incorporate
Axiologix’s suggestions into the Software and Services development
roadmap.
|
|
(c)
|
Edumedia,
at its own expense, will conduct three training sessions at Axiologix’s
workplace(s) to acquaint Axiologix’s sales people about the Software and
Services, and to train Axiologix’s technical people on technical support
of the Software and Services. All subsequent training sessions will
be at Axiologix’s expense.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 5 of
13
|
(d)
|
Edumedia
will maintain a product manager on its staff whose task will be to support
Axiologix’s sales and customer support efforts for the Software and
Services.
|
|
(e)
|
Edumedia
shall provide level 3 support for the Software and Services, which
consists of software bug fixes for the Software and Services and similar
support.
|
|
(f)
|
Edumedia
agrees that for a period of three years after the expiration or
termination of this Agreement, that it will not directly or indirectly (a)
take any action to solicit or divert any customers away from
Axiologix or Axiologix’s resellers, as they exist during this
Agreement or at termination or expiration hereof (b) induce customers,
suppliers, agents or other persons under contract or otherwise associated
or doing business with Axiologix, to reduce or alter any such association
or business with or from Axiologix, and/or (c) induce any person in the
employment of Axiologix or any consultant to Axiologix to (i) terminate
such employment, or consulting arrangement, (ii) accept employment, or
enter into any consulting arrangement, with anyone other than Axiologix,
and/or (iii) interfere with the customers, suppliers, or the clients of
Axiologix in any manner. The restrictions of clauses (a) and (b) above
shall apply to the customers of Axiologix as they exist from time to time
during the term of this Agreement and at the termination or expiration of
this Agreement, in either case, for so long as such customer remains a
customer of Axiologix.
|
|
4.
|
Axiologix’s
Duties
|
|
(a)
|
Axiologix
will use its commercially reasonable efforts to secure sales of the
Software and Services.
|
|
(b)
|
Axiologix
will be responsible for all billing and collections of amounts payable
from its customers in respect of the Software and Services.
Axiologix will keep records of all billing, collection and payment
transactions in a level of detail sufficient to demonstrate its compliance
with the provisions of this Agreement relating
thereto.
|
|
(c)
|
Except
as provided in Sections 3(c) through (e) hereof, Axiologix will be
responsible for all customer support for its customers in respect of the
Software and Services.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 6 of
13
|
5.
|
Intellectual
Property
|
All
right, title and interest in and to the Software and Services, including all
copyrights, trademarks, service marks, logos, names, patents and
other intellectual property embodied in the
Software or Services or provided by Edumedia in connection therewith shall
remain the property of Edumedia. Axiologix shall have a right to use such
Edumedia properties only for the limited purpose of distributing and promoting
the Software and Services in accordance with this Agreement. Axiologix may
use literature and other promotional materials to aid in marketing the Software
and Services only if such materials have been provided or approved in advance by
Edumedia. In marketing the Software and Services, Axiologix
may reference its own name or brand in association with the
Software and Services, rather than Edumedia’s, if done in a manner that does not
prejudice Edumedia's intellectual property rights in and to the Software and
Services.
|
6.
|
Representations and
Warranties
|
|
(a)
|
Each
party represents and warrants to the other party that (a) it has the
full power, authority and legal right to execute, deliver and
perform this Agreement, (b) this Agreement has been duly authorized,
executed and delivered by it and (c) this Agreement is a legal, valid and
binding obligation enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally and subject to general
principles of equity.
|
|
(b)
|
Edumedia
represents and warrants to Axiologix that (i) it owns the Software and
Services, the Documentation and the Training & Marketing Materials and
has the right to grant the rights and licenses contemplated by this
Agreement and (ii) the Software and Services, the Documentation and the
Training & Marketing Materials do not and shall not infringe any
Intellectual Property Rights of any third
party.
|
|
(c)
|
Edumedia
represents and warrants to Axiologix that the Software and Services (i)
will operate in all material respects to the specifications set forth in
the Documentation and (ii) will not have any timer, clock, counter,
trap or virus or other limiting design or routine that may cause the
Software or Services to become inoperable, inaccessible, or incapable of
performing in accordance with the specifications therefore upon the
occurrence of a triggering event, including without limitation the passage
of time.
|
|
(d)
|
Edumedia
makes no representations or warranties of any kind to Axiologix with
respect to the Software and Services, other than any that are expressly
set forth in this Agreement. If Axiologix makes any
representations or warranties to its customers with respect to the
Software and Services, such representations and warranties shall be the
sole responsibility of Axiologix.
|
|
7.
|
Term and
Termination
|
|
(a)
|
The
term of this Agreement shall commence as of the date hereof and shall
continue until 18 months following such date (the “Initial Term”).
Following the Initial Term, this Agreement shall automatically renew for
successive one-year periods unless either party gives written notice of
termination to the other party at least 90 days prior to the end of the
then-current term.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 7 of
13
|
(b)
|
Without
limitation to any other rights available under this Agreement, this
Agreement may be terminated (I) by either party for the material
breach of this Agreement or of a representation, warranty or
covenant contained herein by the other party, which breach is
not cured within 30 days after written notice of such breach by the
terminating party, or (ii) by Edumedia if Edumedia
discontinues the Software or Services and gives Axiologix 90 days'
prior written notice of the applicable
discontinuation.
|
|
(c)
|
In
the event of expiration or any termination of this Agreement, the
obligations of the parties under this Agreement shall cease as of such
expiration or termination, except (i) for
obligations (including payment obligations) that accrued prior to
termination; (ii) that, if the determining event was not
a termination of this Agreement by Edumedia under
Section 7(b)(ii) hereof, Axiologix shall be
entitled to continue any license of or subscription to the Software
or Services existing at the time of
such expiration or termination, subject to Axiologix's
compliance with all of the terms and conditions of this
Agreement with respect thereto; and (iii) as
may otherwise be expressly provided in this
Agreement.
|
|
8.
|
Indemnification
|
Each
party hereto shall indemnify and hold harmless the other party, such other
party's affiliates, and the officers, directors, employees, agents and
representatives of all thereof from and against any and all claims, damages,
actions, costs and expenses (including reasonable attorneys' fees) arising
out of or relating to a breach by such party of any of its
representations, warranties or undertakings set forth in this Agreement or
arising out of or relating to such party's intentionally wrongful or
grossly negligent conduct in connection with this Agreement or with such
party's performance hereunder. In the event of a claim for which
indemnification is to be sought hereunder, the party to be indemnified shall
provide prompt written notice of such claim to the other party, shall allow the
other party to control the defense of such claim and shall cooperate with the
other party in conducting such defense.
|
9.
|
Confidentiality
|
All
proprietary information regarding the Software and Services and its
distribution, shall be confidential between the parties,
and neither shall reveal such terms, conditions or information to
any third parties other than its accountants or attorneys or as required
by law. The obligations contained in this confidentiality
provision shall survive the expiration or any termination of this
Agreement.
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 8 of
13
|
10.
|
Dispute
Resolution
|
|
(a)
|
The
parties recognize that disputes as to certain matters may from time to
time arise which relate to either party’s rights and/or obligations
hereunder. It is the objective of the parties to establish
procedures to facilitate the resolution of such disputes in an expedient
manner by mutual cooperation and without resort to litigation. To
accomplish this objective, the parties agree to follow the procedures set
forth below if and when such a dispute arises between the
parties.
|
|
(b)
|
If
any dispute arises between the parties relating to the interpretation,
breach or performance of this Agreement or the grounds for the termination
thereof, and the parties cannot resolve the dispute within thirty (30)
days of a written request by either party to the other party, the parties
agree to hold a meeting, attended by the Chief Executive Officer or
President of each party, or their executive level designees, to attempt in
good faith to negotiate a resolution of the dispute prior to pursuing
other available remedies. If, within sixty (60) days after such
written request, the parties have not succeeded in negotiating a
resolution of the dispute, such dispute shall be submitted to final and
binding arbitration under the then current commercial rules and
regulations of the American Arbitration Association (“AAA”) relating to
voluntary arbitrations. The arbitration proceedings shall be held in
New York, New York (unless otherwise agreed to by the parties). One
arbitrator shall be selected by Axiologix, one arbitrator shall be
selected by Edumedia, and the third arbitrator shall be chosen by the
first two arbitrators chosen. The arbitrators shall be knowledgeable
in the subject matter at issue in the dispute. The arbitrators must
give full effect to the applicable law and to the terms of this
Agreement. The arbitration shall be conducted in accordance with the
following time schedule unless otherwise mutually agreed to in writing by
the parties: (i) the parties to the arbitration proceeding shall
each appoint their respective arbitrator within fifteen (15) business days
after the date the dispute is submitted to arbitration; (ii) within five
(5) business days thereafter, such arbitrators shall appoint the third
arbitrator; (iii) within ten (10) business days after the appointment of
the third arbitrator, the parties to the arbitration proceeding shall
provide all documents, records and supporting information reasonably
necessary to resolve the dispute; and (iv) within fifteen (15) business
days after the date the above records are due, the arbitrators shall hold
a hearing, and (v) within fifteen (15) days thereafter render their
decision. Each party shall initially bear its own costs and legal
fees associated with such arbitration. The prevailing party in any
such arbitration shall be entitled to recover from the other party the
reasonable attorney’s fees, costs and expenses incurred by such prevailing
party in connection with such arbitration. The decision of the
arbitrator shall be final and binding on the parties. The arbitrator
shall prepare and deliver to the parties a written, reasoned opinion
conferring his or her decision. Judgment on the award so rendered
may be entered in any court having competent jurisdiction thereof and
shall be enforceable under the United States Federal Arbitration
Act.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 9 of
13
|
11.
|
Miscellaneous
|
|
(a)
|
All
demands, notices and communications under this Agreement shall be in
writing and shall be deemed duly given if delivered by hand, by recognized
commercial courier, by fax or by certified mail (with return receipt), in
each case with postage or delivery charges pre-paid, as
follows:
|
If to
Edumedia:
Edumedia
Software Solutions Corporation
Parkway
Plaza
000
Xxxxxxxxx Xxxx.
Xxxxxxx,
Xxx Xxxxxx 00000
Attention: Vice
President
If to
Axiologix:
Axiologix
Education Corporation
000
Xxxxxxxxxxx Xx., Xxxxx 000X
Egg
Harbor Township, New Jersey 08234
Attention: Xxxx X. Xxxxxx,
President
|
(b)
|
Any
provision of this Agreement that is prohibited or held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions of this
Agreement.
|
|
(c)
|
This
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective permitted successors and assigns.
Neither party may assign this Agreement nor any rights or obligations
hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld. . However, either
party may assign this Agreement (i) to any subsidiary of such party or
(ii) to a third party purchasing: (A) majority control of such party's
equity shares, or (B) all or substantially all of such party’s
assets.
|
|
(d)
|
No
term or provision of this Agreement may be
waived or modified unless such waiver or
modification is in writing and signed by the party
against whom such waiver or
modification is sought to be enforced. No waiver of any
breach of any provision of this Agreement shall constitute a waiver of any
prior, concurrent or subsequent breach of the same or any other provision
hereof.
|
|
(e)
|
Edumedia
and Axiologix shall be considered independent contractors to one another,
and nothing in this Agreement shall be construed as creating an
employer-employee, agency, partnership or
joint venture relationship between the
parties.
|
|
(f)
|
No
provision of this Agreement shall be interpreted against a party solely
because such party or its attorney drafted such
provision.
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 10
of 13
|
(g)
|
Neither
party shall be deemed in breach of this Agreement to the extent that
performance of its obligations is prevented or delayed by reason of any
act of God, fire, natural disaster, accident, riot, act of government,
shortage of materials or supplies, failure of
transportation or communication, third party
nonperformance (including, without limitation, failure of performance by
common carriers, interexchange carriers and local exchange carriers) or
any other cause beyond such party's reasonable
control.
|
|
(h)
|
All
claims regarding this Agreement are governed by and construed in
accordance with the laws of New Jersey, applicable to contracts wholly
made and performed in such jurisdiction, except for any choice or conflict
of Law principles, and must be resolved as provided in Section 11, except
that a party may seek injunctive or other equitable relief in any venue of
its choosing within New Jersey, regardless of the inconvenience of the
forum. The parties acknowledge and agree that the United Nations
Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this
Agreement.
|
|
(i)
|
This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous written or oral agreements or communications between such
parties with respect to such subject
matter.
|
IN WITNESS WHEREOF, the
parties have duly executed and delivered this Agreement as of the date first
written above.
EDUMEDIA
SOFTWARE SOLUTIONS CORPORATION
|
Per:
|
|
|
|
J.
Xxxxx Xxxxx Vice President
|
|
Authorized
Signatory
|
AXIOLOGIX
EDUCATION CORPORATION
|
Per:
|
|
|
|
Xxxx
X. Xxxxxx
|
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 11
of 13
Exhibit
“A”
The
following is a detailed list of Edumedia’s Software and Services that Axiologix
will resell:
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 12
of 13
Exhibit
“B”
The
following is some of the documentation and brochures that Edumedia will provide
to Axiologix:
Exclusive
Resellership Agreement
Edumedia – Axiologix
Page 13
of 13
