EXHIBIT 10.29
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* DENOTES THE OMISSION OF INFORMATION PURSUANT TO THE REQUEST FOR CONFIDENTIAL
TREATMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THE COMPLETE
CONTRACT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
LICENSE AGREEMENT
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This License Agreement is made effective this 30th day of June, 2000
(the "EFFECTIVE DATE") by and between ON Technology Corporation, a Delaware
corporation (the "LICENSOR"), having its principal office at 000 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000, and Meeting Maker, Inc., a
company organized under the laws of the Cayman Islands with its principal office
at P.O. Box 219, First Home Tower, British American Centre, Xxxxxx Town, Grand
Cayman (hereinafter referred to as the "LICENSEE").
WHEREAS, the Licensor owns, licenses and supports computer software
known as Meeting Maker, which is a group calendar and scheduling software
product,
WHEREAS, on January 3, 2000, the Licensor and Licensee entered into an
Asset Purchase Agreement, which agreement was amended by that certain First
Amendment to Asset Purchase Agreement as of May 31, 2000 (the "ASSET PURCHASE
AGREEMENT") pursuant to which the Licensee was seeking to acquire (the "ASSET
ACQUISITION") the business conducted by the Licensor relating to the Product
(the "MEETING MAKER BUSINESS"); and
WHEREAS, in connection with the execution and delivery of the Asset
Purchase Agreement, the Licensor and Licensee entered into a Management
Assumption Agreement and First Amendment to Management Agreement (the
"MANAGEMENT AGREEMENT"), dated January 3, 2000 (the "MANAGEMENT ASSUMPTION
DATE") and May 31, 2000, respectively, under which the Licensee has been
managing the Meeting Maker Business; and
WHEREAS, the parties agree that it is in their best interest to
terminate the Asset Purchase Agreement, Management Agreement and all other
agreements related to the Asset Acquisition (the "ASSET ACQUISITION Agreements")
and to enter into this License Agreement; and
WHEREAS, the Licensee wishes to license the Meeting Maker software
product from the Licensor and to assume certain obligations with respect
thereto, and the Licensor is willing to grant a license and certain other rights
to the Licensee in accordance with the terms and conditions set forth in this
Agreement below.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledge, the parties hereby agree as follows.
1. Grant of Product Licenses.
1.1 Subject to Licensee's payment of the amounts set forth in Section
4.1 through 4.4 of this Agreement, the Licensor hereby grants to the Licensee a
worldwide, nonassignable, nontransferable (in each case except pursuant to
Section 19 below), nonexclusive license (the "NON EXCLUSIVE LICENSE") to the
Meeting Maker Software as it exists as of the Effective Date of this Agreement
(including but not limited to all source code, object code, trade secrets, know
how, patent applications, copyrights, and licenses and agreements to which
Licensor is a party, which are utilized with respect to the Meeting Maker
Software) (the "PRODUCT"), for all uses whatsoever and without restriction, in
perpetuity.
1.2 Subject to Licensee's payment of the amounts set forth in Sections
4.1 through 4.5 of this Agreement and the Non Exclusive License granted pursuant
to Section 1.1 of this Agreement, the Licensor hereby grants to the Licensee a
worldwide, nonassignable, nontransferable (in each case except pursuant to
Section 19 below), exclusive license (the "EXCLUSIVE LICENSE") to the Product
for all uses whatsoever and without restriction, subject to the terms and
conditions specified herein, for an initial term of [*] years (the "INITIAL
LICENSE Term"). At the end of the Initial License Term, the Exclusive License
shall be automatically renewed for successive one year periods (each such period
being a "RENEWAL LICENSE TERM"), unless either of the Licensor or the Licensee
provides notice of non-renewal prior to 90 days before the end of the Initial
License Term or any Renewal License Term. For the avoidance of doubt, the
parties explicitly agree that the above-referenced Exclusive License shall apply
to both third-parties and Licensor, and shall prohibit all Licensor and third
party distribution or use of the Product, except as may be specifically agreed
by Licensee.
1.3 If the Licensee reasonably determines that it needs further
documents of transfer or assignment in order to confirm or perfect the rights
granted in Sections 1.1 and 1.2 above or Section 2 below, the Licensor shall
cooperate and use its commercially reasonable efforts in the preparation and
execution of such documents promptly after receipt of written request therefor
from the Licensee.
1.4 The Licensor shall retain all right, title, and interest in the
Product not expressly granted to the Licensee by this Agreement, but shall not
own or have any rights with respect to other software prepared, owned or
licensed from third-parties, by Licensee including, but not limited to
corrections, modifications, upgrades, enhancements and new products insofar as
said software does not incorporate the Product.
1.5 All distribution of the Product by the Licensee or the Licensee's
sublicensees shall be by means of sublicenses (including shrinkwrap or
"CLICKWRAP" licenses) only or shall otherwise protect Licensor's rights to the
Product. The Licensee shall take all steps necessary to ensure that the Product
is distributed by the Licensee's sublicensees only pursuant to the requirements
of this Agreement and any sublicense agreements that the Licensee may establish
from time to time (which sublicense agreements shall not be in violation of or
contrary to this Agreement).
1.6 Except as expressly set forth herein, the Licensee will bear all
costs of manufacturing, marketing, sublicensing, and distributing the Product.
2. Additional Licenses and Grants.
2.1 Subject to Licensee's payment of the amounts set forth in Sections
4.1 through and including 4.5 of this Agreement, the Licensor hereby grants to
the Licensee an additional license to all trademarks, tradenames, trademark
registrations, applications for trademark registrations and domain names
associated with the Product and listed on Schedule 2.1
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hereto, said license to be exclusive for the term of the Exclusive License set
forth in Section 1.2 hereof, and thereafter to be non-exclusive.
2.2 Subject to Licensee's payment of the amounts set forth in Section
4.1 of this Agreement and in support of the licenses granted in Section 1.1 and
1.2 hereof, the Licensor hereby transfers, sells and assigns to Licensee all
inventories of the Product currently existing as of the Effective Date and the
personal property listed on Schedule 2.2 hereto, together with any additional
personal property acquired for the Meeting Maker Business, free of all
Encumbrances (as this term is defined in Section 9.3 hereof), and shall provide
Licensee with a Xxxx of Sale to this effect.
3. Term and Termination.
3.1 This Agreement shall become any effective on the Effective Date and
shall continue in perpetuity for the Initial License Term and any Renewal
License Term, unless and until terminated pursuant to the terms of the
Agreement. Notwithstanding the foregoing, the parties acknowledge that the Non
Exclusive License shall continue in perpetuity.
3.2 If any failure by the Licensee to pay any License Fees set forth in
Sections 4.1 through and including 4.4 below in accordance with the terms of
this Agreement continues for a period of 30 days following the Licensee's
receipt of a written notice from the Licensor that the Licensee has failed to
pay License Fees that are due to the Licensor hereunder, then such failure will
be an event of default and will result in the Licensor's right to terminate this
Agreement upon 30 days' written notice to the Licensee.
3.3 In addition to the rights of Licensor to terminate this agreement
as set forth in Section 3.2 above, this Agreement may be terminated upon mutual
written agreement of the Licensor and the Licensee.
3.4 Upon any termination of this Agreement, any and all unpaid License
Fees that are due and owing from the Licensee to the Licensor shall be paid.
4. Payments.
4.1 In full consideration of the rights granted pursuant to Section 2.2
and in partial consideration of the Licenses granted pursuant to Sections 1.1
and 1.2 and Section 2.1 hereof, the Licensee shall make the following payments
to the Licensor:
Amount Date of Payment
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[*] On the execution of this Agreement in consideration
of the existing inventory of the Product.
[*] On the execution of this Agreement in consideration
of the fixed assets related to the Product.
4.2 In further consideration of the Licenses and rights granted
hereunder, the Licensee shall assume and agree to perform and discharge the
liabilities, obligations, and
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commitments of the Licensor that are specifically set forth in Schedule 4.2
hereto and shall deliver an instrument of assumption of such liabilities,
obligations, and commitments, which shall be in substantially the form attached
hereto as Exhibit A.
4.3 In further consideration of the Licenses granted pursuant to
Section 1.2 and Section 2.1 hereof and in full consideration of the License
granted pursuant to Section 1.1 hereof, the Licensor shall be entitled to
receive license fees ("LICENSE FEES") equal to (i) [*] percent [*] of all net
revenue received by the Licensee for the Product and (ii) [*] percent [*] of all
net invoiced maintenance fees for the Product received by Licensee until a total
of [*] of License Fees have been paid hereunder (such [*] being the "MINIMUM
LICENSE Fee"). Notwithstanding the foregoing, the Licensor shall be entitled to
receive a minimum of [*] of License Fees in each calendar quarter for the first
six (6) calendar quarters of the Agreement commencing on July 1, 2000 (such [*]
being the "QUARTERLY MINIMUM LICENSE FEES"). Once the Licensee has paid the
Minimum License Fee, the Licensee's obligation to make payments pursuant to this
Section 4.3 shall cease, provided, however, that the Licensee's payment
obligations shall be governed solely be Section 4.3 hereof.
4.4 In further consideration of the Licenses granted pursuant to
Sections 1.1 and Section 2.1 hereof, once the Licensee has paid the Minimum
License Fee to the Licensor, the Licensor shall be entitled thereafter to
receive a License Fee (allocated equally between these licenses) equal to [*]
percent [*] of (i) all net revenue received by Licensee for the Product and (ii)
of all net invoiced maintenance fees for Product received by Licensee.
4.5 The first Quarterly Minimum License Fees shall be payable to the
Licensee to the Licensor upon execution of this Agreement. Thereafter, all
License Fees payable by the Licensee to the Licensor shall be paid within 15
days after the end of each calendar quarter, the first such calendar quarter
commencing on October 1, 2000. The Licensee shall pay the Licensor a service
charge of one and one-half percent (1.5 %) per month of any and all License Fees
not paid to the Licensor in a timely manner pursuant to the terms hereof. For
purposes of this Agreement, "BUSINESS DAY" shall mean any day, other than a
Saturday or Sunday, on which commercial banks in Massachusetts are open for the
general transaction of business.
4.6 Offset of Payments. The parties acknowledge and agree that in
connection with the termination of the Management Assumption Agreement pursuant
to Section 20.1 below, the payments due upon the execution of this Agreement as
set forth in Section 4.1 and 4.5 above may be offset by and against any amounts
that may be due from the Licensor to the Licensee as a result of such
termination. In the event that the parties agree to any such offset, they shall
attach a schedule to this Agreement identifying the items thereof.
4.7 The Licensor's Audit Rights.
(a) While this Agreement is in effect, and for two (2) years after
its termination, the Licensee shall keep detailed accurate records reflecting
the performance of its obligations under this Agreement. The records maintained
by the Licensee shall include, without limitation, all records maintained by the
Licensee necessary to enable a certified public accountant selected by the
Licensor to verify the accuracy of the payment reports and the
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payments of the Licensor Fees provided to the License by the Licensee pursuant
to this Agreement.
(b) While this Agreement is in effect, and for two (2) years after
its termination, the Licensor shall have the right to audit, through any
certified public accountant selected by the Licensor, the books and records of
the Licensee relating to the Meeting Maker Business and the Licensee's
distribution of the Product in order to determine whether the Licensee has
performed its obligations pursuant to this Agreement. The Licensee shall not be
required to submit to any audit more than two (2) times during any 12 month
period. The Licensor shall provide the Licensee at least ten (10) Business Days
written notice of its election to conduct an audit, any such audit shall be
conducted during the Licensee's normal business hours and in a manner as to not
unreasonably disrupt Licensee's operations. The Licensee shall assist the
representatives of the Licensor in conducting the audit without charge, and
shall make such documents available for inspection and copying, and shall make
such Licensee employees available for interviews, as is reasonably necessary to
allow the Licensor's representatives to perform the audit.
(c) If any audit reveals that the Licensee has underpaid License
fees to the Licensor by an amount equal to or greater than ten percent (10%) of
the amounts determined to be actually owed, then the Licensee shall bear all
out-of-pocket expenses (including reasonable attorneys' and accountants' fees)
reasonably incurred by the Licensor in connection with such audit. Otherwise,
the Licensor shall bear its own expenses for the audit.
(d) To the extent that any audit reveals that amounts are due from
either party to other, either because of an overpayment or underpayment of
License Fees, as the case maybe, than such amounts shall be paid via certified
check or wire transfer within ten (10) Business Days after such determination.
5. [*]
6. Title, Risk of Loss and Non-assignability. Unless and until the Licensee
exercises [*] , title to the Product shall remain the sole
property of the Licensor. After delivery of the Product to the Licensee, the
Licensee shall be solely responsible for and bear all risk of loss thereof,
except as occasioned by the Licensor. The license to use the Product hereunder
is personal to the Licensee and solely for the Licensee's own use and benefit.
The Licensor agrees to allow an assignment of the Product to another entity in
conjunction with the sale of all or substantially all of the assets of an
operational unit of the Licensee to such entity, provided, however, that such
entity agrees to become a party to this Agreement as a successor in interest to
the Licensee. Any other attempt to assign or transfer the Product shall be void,
of no effect, and a material breach of this Agreement, unless agreed otherwise
by the Licensor in writing.
7. Other Consideration Conveyed, and Other Duties Owed, by Licensee to the
Licensor.
7.1 The Licensee shall use commercially reasonable efforts to market
the Product effectively. The Licensee, if necessary, shall have the sole and
exclusive responsibility
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for translating the Product into foreign languages, and shall pay all costs of
creating such translations.
7.2 The Licensee shall promptly reimburse the Licensor for all
reasonable travel, meals, lodging, and related expenses incurred by the Licensor
in providing services to the Licensee at the request of the Licensee. The
Licensor shall supply the Licensee with receipts or other satisfactory evidence
reflecting expenses incurred upon request.
7.3 The Licensor expressly reserves the right to continue to market the
Product under the name Meeting Maker if it terminates this Agreement.
8. Non-disclosure and Nonreproduction of Proprietary Information. The
Licensee understands and agrees that the Product contains confidential and
proprietary information of the Licensor. The Licensee agrees to take all
reasonable steps to maintain said confidential and proprietary information. The
Licensee agrees to take all reasonable steps to insure that no unauthorized
persons shall have access to said confidential and proprietary information and
that all authorized persons having access thereto shall refrain from any
unauthorized disclosure duplication or reproduction. The Licensee shall be
responsible for all damages caused from unauthorized disclosure, duplication or
reproduction by persons having access to said confidential and proprietary
information while in the possession of the Licensee.
9. Representations of the Licensor.
The Licensor represents and warrants to the Licensee that:
9.1 Organization. The Licensor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power to own its properties, to carry on its business as
now being conducted, to execute and deliver this Agreement and the agreements
contemplated herein, and to consummate the transactions contemplated hereby and
thereby. The Licensor is duly qualified to do business and in good standing in
all jurisdictions in which its ownership of property or the character of its
business requires such qualification, except where the failure to be so
qualified will not have a material adverse effect on the business and operations
of the Licensor and its subsidiaries, taken together as a whole. Certified
copies of the Certificate of Incorporation and Bylaws of the Licensor, as
amended to date, have been previously delivered to the Licensee, are complete
and correct, and no amendments have been made thereto or have been authorized
since the date thereof.
9.2 Authorization. The execution and delivery by the Licensor of this
Agreement and the agreements provided for herein, and the consummation by the
Licensor of all transactions contemplated hereunder and thereunder, have been
duly authorized by all requisite corporate action. This Agreement has been duly
executed by the Licensor. This Agreement and all other agreements and
obligations entered into and undertaken in connection with the transactions
contemplated hereby to which the Licensor is a party constitute the valid and
legally binding obligations of the Licensor enforceable against it in accordance
with their respective terms except as such enforceability may be limited by the
application of bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally. The
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execution, delivery and performance by the Licensor of this Agreement and the
agreements provided for herein, and the consummation by the Licensor of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to the Licensor; (b) violate the
provisions of the Certificate of Incorporation or Bylaws of the Licensor; or (c)
violate any judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of the Licensor pursuant to, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Licensor is a party or by
which the Licensor is or may be bound.
9.3 Ownership of the Product. Schedule 9.3 hereto sets forth a true,
correct and complete list of all claims, liabilities, liens, pledges, charges,
encumbrances and equities of any kind affecting the Product (collectively, the
"ENCUMBRANCES") as of the Effective Date. The Licensor is the true and lawful
owner of the Product. The Licensor covenants that from the date hereof and until
the earlier of the completion of Licensee's
[*]
, that the Licensor shall not create or allow or suffer to be created any
Encumbrances.
9.4 Litigation. Except as set forth on Schedule 9.4 hereto, with
respect to the Meeting Maker Business as of the Effective Date, (a) there was no
action, suit or proceeding to which the Licensor is a party pending or, to the
knowledge of the Licensor, threatened before any court or governmental agency,
authority, body or arbitrator that would, if decided adversely to the Licensor,
have a material adverse effect upon the Meeting Maker Business and/or the
Product; (b) the Licensor had not been permanently or temporarily enjoined by
any order, judgment or decree of any court or any governmental agency, authority
or body from engaging in or continuing any conduct or practice; and (c) there
was not in existence any order, judgment or decree of any court, tribunal or
agency enjoining or requiring the Licensor to take any action of any kind.
9.5 Employee Relations. The Licensor is in compliance with all federal,
state, provincial and municipal laws respecting employment and employment
practices, terms and conditions of employment, and wages and hours, and is not
engaged in any unfair labor practice, and there are no arrears in the payment of
wages or social security taxes. None of the Licensor's employees are represented
by a union and to the knowledge of the Licensor there have been no union
organizing efforts conducted at the Licensor and none is now being conducted.
The Licensor has not had at any time, nor, to the knowledge of the Licensor is
there now threatened, any strike. Schedule 9.5 hereto sets forth a true, correct
and complete list as of the date hereof showing each employee of the Licensor
that is expected to transfer employment to the Licensee (collectively, the
"TRANSFERRED EMPLOYEES"), his or her position, salary, benefits and bonuses (if
any). The Licensor has no knowledge that any Transferred Employee will, or is
likely to, decline the offer of employment by Licensee.
9.6 No Misleading Statements. This Agreement, the information and the
schedules referred to herein do not, when taken as a whole, include any untrue
statement of a material fact and do not omit to state any material fact
necessary to make the statements
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contained herein or therein, in light of the circumstances under which they were
made, not misleading in any material respect.
9.7 Asset Purchase Agreement Representations and Warranties. The
Licensor hereby affirms the representations and warranties set forth by the
Company in Sections 2.5, 2.6, 2.7, 2.9, 2.10, 2.13, 2.15, and 2.17 of the Asset
Purchase Agreement as of the Management Assumption Date. The Licensee agrees
that such representations and warranties were dated as of the Management
Assumption Date, and that the Licensor has no obligation to update or modify any
such representations and warranties. The Licensor further hereby affirms the
representations and warranties set forth by the Company in Sections 2.12, 2.14,
and 2.18 of the Asset Purchase Agreement as of the Effective Date.
10. Representations of the Licensee. The Licensee represents and warrants
to the Licensor as follows:
10.1 Organization and Authority. The Licensee is a company duly
organized, validly existing and in good standing under the laws of the Cayman
Islands, and has all requisite power and authority (corporate and other) to own
its properties and to carry on its business as now being conducted. The Licensee
has complete power to execute and deliver this Agreement and the agreements
contemplated herein, and to consummate the transactions contemplated hereby and
thereby.
10.2 Authorization. The execution and delivery of this Agreement by the
Licensee, and the agreements provided for herein, and the consummation by the
Licensee of the transactions contemplated hereby and thereby, have been duly
authorized by all requisite corporate action. This Agreement and all such other
agreements and written obligations entered into and undertaken in connection
with the transactions contemplated hereby constitute the valid and legally
binding obligations of the Licensee, enforceable against the Licensee in
accordance with their respective terms except as such enforceability may be
limited by the application of bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally. The
execution, delivery and performance of this Agreement and the agreements
provided for herein, and the consummation by the Licensee of the transactions
contemplated hereby and thereby, will not, with or without the giving of notice
or the passage of time or both, (a) violate the provisions of any material law,
rule or regulation applicable to the Licensee; (b) violate the provisions of the
Licensee's Memorandum and Articles of Association; (c) violate any judgment,
decree, order or award of any court, governmental body or arbitrator; or (d)
conflict with or result in the breach or termination of any material term or
provision of, or constitute a default under, or cause any acceleration under, or
cause the creation of any lien, charge or encumbrance upon the properties or
assets of the Licensee pursuant to, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Licensee is a party or by which the
Licensee is or may be bound.
10.3 Regulatory Approvals. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by the Licensee and which are necessary for the
consummation of the transactions contemplated by this Agreement have been
obtained and satisfied.
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11. Access to Information; Public Announcements.
11.1 Access to Management, Properties and Records. During the term of
this Agreement the Licensor shall afford the officers, attorneys, accountants
and other authorized representatives of the Licensee reasonable access upon
reasonable notice and during normal business hours to all management personnel,
offices, properties, books and records of the Licensor, for the sole purpose of
facilitating the closing of the transactions contemplated hereunder and to the
extent directly related to the Meeting Maker Business and the Transferred
Employees. In connection therewith, the Licensor shall furnish to the Licensee
such information as to the Meeting Maker Business and the Transferred Employees
as the Licensee shall reasonably request. In addition, during the term of this
Agreement the Licensee shall afford the officers, attorneys, accountants and
other authorized representatives of the Licensee reasonable access upon
reasonable notice and during normal business hours to all management personnel,
offices, properties, books and records of the Licensor, for the sole purpose of
the Licensor responding to any audit or investigation of governmental authority
or agency. In connection therewith, the Licensee shall furnish to the Licensor
such information as Licensor shall reasonably request.
11.2 Public Announcements. Without the prior written consent of the
other party, neither the Licensor nor the Licensee will disclose the fact that
this Agreement exists or any of the terms hereof, unless and only to the extent
that such disclosure (and only after consultation with the other party) is, in
the opinion of the other party's counsel, required by applicable securities
laws. The Licensor is a publicly traded corporation and United States securities
laws prohibit any person or entity who has received material, non-public
information concerning a publicly traded corporation from purchasing or selling
securities of such corporation or from communicating such information to any
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities while in possession of
material, non-public information. The fact that the Licensee and the Licensor
have entered into this Agreement, and the terms of this Agreement, could be
considered material, non-public information. Notwithstanding the foregoing, each
party acknowledges that the other is permitted to issue a press release
regarding the execution of this Agreement and describing its terms in general,
and each party will cooperate with the other to diligently review and comment on
any such press release.
12. Sub-Sublease Agreement. The Licensor shall obtain the agreement of BGS
Systems, Inc. and 000 Xxxxxx Xxxxxx, LLC., as sub-landlord and landlord,
respectively, to the sub-sublease of premises located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, and shall sublease said premises to
Licensee or Licensee's designated subsidiary for a Term beginning on the
Effective Date hereof pursuant to the terms of the Sub-Sublease Agreement last
revised on February 14, 2000 and provided to the Licensee by the Licensor, it
being additionally agreed that: if such sub-sublease requires the payment of any
sums in addition to those already paid by the Licensor, such additional amounts
shall be paid the Licensor.
13. Transfer of Employees.
13.1 Effective upon the execution of this Agreement, the Licensor shall
terminate the employment of all Transferred Employees, and the Licensee shall
hire the
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Transferred Employees, and to the extent practicable adopt the seniority status
of the Transferred Employees. The Licensor shall use commercially reasonable
efforts to persuade the Transferred Employees to accept employment with the
Licensee; provided, however, that the Licensor shall not be required to incur
any out-of-pocket costs in connection with such efforts. [*]
13.2 The Licensor agrees that it shall use commercially reasonable
efforts, to the extent permissible by law, upon reasonable written request, and
at the Licensee's sole cost and expense, to seek to enforce any of the
Licensor's rights under employee and nonconfidentiality agreements by and
between the Licensor and a Transferred Employee insofar as such rights relate to
the Meeting Maker Business, so long as such efforts, in the good faith
determination of the Board of Directors of the Licensor, would not have a
material adverse effect on the Licensor's business, or operations (including,
without limitation, the Licensor's relationship with its own employees).
13.3 The parties hereto acknowledge that during the term of the
Management Agreement, the Transferred Employees were employed by the Licensor
but, to the extent allowed by law, were subject to the complete supervision,
direction and control of the Licensee. The Licensee has paid or caused to be
paid by Licensor all salaries, commissions, taxes, insurance, sick leave,
vacation pay, workers compensation, unemployment compensation, liabilities
pursuant to Federal Insurance Contributions Act and the Federal Unemployment
Trust Act, and all other claims, costs, expenses and liabilities of any nature
whatsoever related to the Transferred Employees (collectively, the "EMPLOYMENT
EXPENSES") arising during the period commencing on the Management Assumption
Date and ending on the date of termination of the Management Agreement (the
"MANAGEMENT ASSUMPTION Term") and the Licensee was directly responsible for all
such expenses related to all other personnel involved in the Meeting Maker
Business Employment Expenses included, without limitation, all severance and
salary continuation obligations of Transferred Employees whose employment is
terminated, or who voluntarily resigned, during the Management Assumption Term.
14. Indemnification.
14.1 By the Licensor.
The Licensor hereby indemnifies and hold harmless the Licensee from and against
all claims, damages, losses, liabilities, costs and expenses, including, without
limitation, settlement costs and any legal, accounting or other expenses for
investigating or defending any actions or threatened actions (collectively, the
"LOSSES"), in connection with any breach of any representation, warranty,
covenant or condition made by the Licensor in this Agreement, or in connection
with any obligation of the Licensor with respect to the Licenses granted herein,
Transferred Employees, the Meeting Maker Assets, and/or the Meeting Maker
Business that arose prior to the Management Assumption Date.
14.2 By the Licensee. The Licensee hereby indemnifies and holds
harmless the Licensor from and against all Losses in connection with any breach
of any representation, warranty, covenant or condition made by the Licensee in
this Agreement, or in connection with any obligation of the Licensee with
respect to the Transferred Employees, [*] including, without limitation, any and
all Employment Expenses, the Meeting Maker Assets, and/or the Meeting
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Maker Business that arises on or after the Management Assumption Date, excepting
only Licensor's obligations for Employment Expenses undertaken by it prior to
the Effective Date.
14.3 Claims for Indemnification. Whenever any claim shall arise for
indemnification under this Section 14, the Licensee, on the one hand, or the
Licensor on the other hand, seeking indemnification (the "INDEMNIFIED Party"),
shall promptly notify the other party hereto (the "INDEMNIFYING PARTY") of the
claim and, when known, the facts constitute-ting the basis for such claim. In
the event of any such claim for indemnification hereunder resulting from or in
connection with any claim or legal proceedings by a third party, the notice
shall specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The Indemnified Party shall not settle or
compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent, which shall not be
unreasonably withheld or delayed, of the Indemnifying Party; provided, however,
that if suit shall have been instituted against the Indemnified Party and the
Indemnifying Party shall not have taken control of such suit after notification
thereof as provided in Section 14.4 of this Agreement, the Indemnified Party
shall have the right to settle or compromise such claim upon giving notice to
the Indemnifying Party as provided in Section 14.4.
14.4 Defense of any Claim. In connection with any claim which may give
rise to indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a third party, the Indemnifying Party may, upon written notice to
the Indemnified Party, assume the defense of any such claim or legal proceeding.
If the Indemnifying Party assumes the defense of any such claim or legal
proceeding, the Indemnifying Party shall select counsel reasonably acceptable to
the Indemnified Party to conduct the defense of such claims or legal proceedings
and at the sole cost and expense of the Indemnifying Party shall take all steps
necessary in the defense or settlement thereof. The Indemnifying Party shall not
consent to a settlement of, or the entry of any judgment arising from, any such
claim or legal proceeding, without the prior written consent of the Indemnified
Party (which consent shall not be unreasonably withheld or delayed). The
Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its own counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom within 30 days after the date such claim is made or pursue
such claim in a reasonably prudent manner: (a) the Indemnified Party may defend
against such claim or litigation in such manner as it may deem appropriate,
including, but not limited to, settling such claim or litigation, after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense. If the Indemnifying Party thereafter seeks to question
the manner in which the Indemnified Party defended such third party claim or the
amount or nature of any such settlement, the Indemnifying Party shall have the
burden to prove by a preponderance of the evidence that the Indemnified Party
did not defend or settle such third party claim in a reasonably prudent manner.
14.5 Survival of Representations; Claims for Indemnification. All
representations and warranties made in this Agreement, and in the schedules and
exhibits hereto, and in all certificates delivered pursuant hereto shall survive
through and until the expiration of the 12th full calendar month following the
Management Assumption Date (the "TERMINATION DATE"). After the Termination Date,
all such representations and warranties shall immediately
11
expire except with respect to claims, if any, asserted in writing on or prior to
the Termination Date. All claims and actions for indemnity hereunder shall be
asserted and maintained in writing by a party hereto on or prior to the
Termination Date.
14.6 Payment of Indemnification Claims. All indemnification hereunder
shall be effected by payment of cash or delivery of a cashier's check to the
Indemnified Party in the amount of the indemnification liability.
14.7 Exclusion for Certain Indemnity Obligations. Notwithstanding
anything to the contrary in this Section 15 or elsewhere in this Agreement an
Indemnifying Party shall not be obligated to pay any Losses suffered by the
appropriate Indemnified Party unless and until the aggregate amount of all such
Losses exceeds [*] (the "RECOVERABLE"). Once the aggregate amount of such Losses
exceeds the Recoverable, such Indemnifying Party shall be required to pay Losses
only in excess of the Recoverable and in an aggregate amount not to exceed, in
any event [*] (the "CAP"). In no event shall either party be liable under this
Agreement, whether pursuant to this Section 15 or otherwise, for any amount in
addition to, or from sources other than, those specified in this Section 14.7.
15. Disclaimer Regarding Representations and Warranties; Warranty.
15.1 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. FURTHER, ANY OF THE
FOREGOING REPRESENTATIONS IN SECTION 9 OR SECTION 10 OF THIS AGREEMENT THAT ARE
UNTRUE OR INACCURATE, THE UNTRUTHFULNESS OR INACCURACY OF WHICH THE OTHER PARTY
OR ANY OF THE OTHER PARTY'S MANAGEMENT HAVE KNOWLEDGE ON THE DATE HEREOF AS A
RESULT OF OR THROUGH THE LICENSEE'S OPERATION OF THE MEETING MAKER BUSINESS
SINCE THE MANAGEMENT ASSUMPTION DATE, SHALL BE DEEMED TO BE AMENDED OR MODIFIED
TO THE EXTENT NECESSARY TO RENDER IT CONSISTENT WITH SAID PARTY'S KNOWLEDGE. THE
TERM "SAID PARTY'S KNOWLEDGE" SHALL MEAN THE ACTUAL KNOWLEDGE OF THE PARTY'S
SENIOR LEVEL MANAGEMENT, REGARDING THE NATURE, SCOPE AND DEGREE OF THE
UNTRUTHFULNESS OR INACCURACY OF ANY OF THE REPRESENTATION OR WARRANTIES PROVIDED
IN THIS AGREEMENT.
15.2 THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE LIMITED WARRANTIES
AND ARE THE ONLY WARRANTIES MADE BY THE PARTIES. EACH PARTY MAKES AND THE OTHER
PARTY RECEIVES NO OTHER REPRESENTATION OR WARRANTY, WHETHER EXPRESSED OR
IMPLIED, AND ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. THE LICENSEE
AGREES THAT THE PRODUCT IS LICENSED "AS IS." THE STATED WARRANTIES ARE PROVIDED
IN PLACE OF ALL LIABILITIES OR OBLIGATIONS FOR ANY DAMAGES ARISING OUT OF OR IN
ANY WAY RELATED TO THE OWNERSHIP, DELIVERY, USE, DISTRIBUTION, OR PERFORMANCE OF
THE PRODUCT.
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15.3 EACH PARTY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES
MADE TO ANY PERSON OR ENTITY OTHER THAN THE OTHER PARTY AND PERMITTED
SUCCESSORS, OR MADE TO THE OTHER PARTY BY ANY PERSON OR ENTITY.
15.4 ALL OF THE LICENSOR'S REPRESENTATIONS AND WARRANTIES REGARDING THE
PRODUCT ARE LIMITED TO THE PRODUCT IN THE FORM IN WHICH IT WAS DELIVERED TO THE
LICENSEE BY THE LICENSOR IN CONNECTION WITH THE ASSET ACQUISITION AGREEMENTS.
15.5 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE ENTITLED TO RECOVER
FROM THE OTHER PARTY ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION
NEGLIGENCE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
16. Post-Effective Date Agreements.
The Licensor and the Licensee, as applicable, agree that from and after
the Effective Date:
16.1 Cooperation.
(a) The Licensor will cooperate with the Licensee in furnishing
information or other assistance reasonably requested in connection with any
actions, proceedings, arrangements or disputes involving the Meeting Maker
Business and based upon contracts, arrangements, property rights, acts or
omissions of the Licensor which were in effect or carried on prior to the
Management Assumption Date. The Licensee shall reimburse the Licensor, upon
demand, for all reasonable out of pocket expenses incurred in providing such
cooperation.
(b) The Licensee will cooperate with the Licensor in furnishing
information or other assistance reasonably requested in connection with any
actions, proceedings, arrangements or disputes involving the business of the
Licensee and based upon contracts, arrangements, property rights, acts or
omissions of the Licensee which were in effect or carried on or after the
Management Assumption Date, but only to the extent involving any potential
liability of the Licensor. The Licensor shall reimburse the Licensee, upon
demand, for all reasonable out of pocket expenses incurred in providing such
cooperation.
16.2 Non-Competition. During the Initial License Term and any Renewal
License Term neither the Licensor nor any of its affiliates will, directly or
indirectly in the United States or elsewhere in the world, engage in any
business that provides any calendar or scheduling services or software products
that are competitive with the Product or the Meeting Maker Business.
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16.3 Non-Solicitation. Unless the Licensee consents in writing, neither
the Licensor nor any of its affiliates will, for a period of [*] years from the
Effective Date, directly or indirectly, solicit for employment or employ any of
the Licensee's employees, including the Transferred Employees. Unless the
Licensor consents in writing, neither the Licensee nor any of its affiliates
will, for a period of [*] years from the Effective Date, directly or indirectly,
solicit for employment or employ any of the Licensor's employees.
16.4 Enforceability. If any court determines that any of the
restrictive covenants set forth in Section 16.2 or Section 16.3, or any part of
such covenants, is unenforceable because of the duration of such provision or
the area covered thereby, such court shall have the power to reduce the duration
or area of such provision and, in its reduced form, such provision shall then be
enforceable and shall be enforced. It is further understood and agreed that
money damages would not be a sufficient remedy for any breach of the provisions
of Section 16.2 or Section 16.3 by the Licensor or any of its affiliates and
that Licensee shall be entitled to equitable relief, including injunction and
specific performance, as a remedy for any such breach. Such remedies shall not
be deemed to be the exclusive remedies for a breach by the Licensor of the
provisions of Section 16.2 or Section 16.3 but shall be in addition to all other
remedies available at law or equity to Licensee.
16.5 Use of Name. For a period of 60 days following the date of this
Agreement, the Licensee shall be entitled to use the Licensor's name and
trademarks on all products, sales brochures and other documentation which
constitute a portion of the Licensed/Acquired Assets. Upon expiration of such 60
Business Day period, the Licensee shall immediately cease to have any rights
with regard to such name and trademarks (except as such name or trademark is
used on items or materials already deployed or in the distribution channel of
Licensee).
16.6 Confidentiality.
(a) The Licensee shall use reasonable efforts (equivalent to those
efforts used to maintain confidentiality of its own information) to maintain the
confidentiality of any confidential information regarding the Product, the
Licensor, the Licensor's employees and contractors, and the Licensor's past,
present, or future products. Information shall be deemed confidential only if it
is marked "Confidential" in writing. The Licensee shall indemnify the Licensor
for any loss or damage the Licensor may sustain as a result of the wrongful use
or disclosure by the Licensee (or any employee, agent, contractor, licensee, or
distributor of the Licensee) of confidential information regarding the Licensor,
the Licensor's employees and contractors, and the Licensor's past, present, or
future products.
(b) The Licensor shall use reasonable efforts (equivalent to those
efforts used to maintain confidentiality of its own information) to maintain the
confidentiality of any confidential information regarding the Product, the
Licensee, the Licensee's employees and contracts, and the Licensee's past,
present, or future products, and any audit results which it may receive pursuant
to this Agreement. Information shall be deemed confidential only if it is marked
"Confidential" in writing. The Licensor shall indemnify the Licensee for any
loss or damage the Licensee may sustain as a result of the wrongful use or
disclosure by the Licensor (or any employee, agent, contractor, licensee, or
distributor of the Licensor) or confidential
14
information regarding the Licensee, the Licensee's employees and contractors,
and the Licensee's past, present , or future products.
(c) The obligations described in Sections 16.6(a) and (b) shall
not apply to any information that (i) is or becomes publicly known under
circumstances involving no breach of the obligations imposed by Sections 16.6(a)
and (b); (ii) is generally disclosed to third parties by a party with the right
to disclose such information without restrictions on its use or disclosure;
(iii) was already known by the party to whom it was disclosed prior to such
disclosure; (iv) is independently developed by the party to whom it was
disclosed; or (v) is approved for use or disclosure in writing by the owner of
such confidential information.
(d) The obligations described in Sections 16.6(a) and (b) shall
have a duration of five (5) years from the date of disclosure.
17. Dispute Resolution.
17.1 General.
In the event that after the date of this Agreement any dispute should
arise between the parties hereto with respect to any matter covered by this
Agreement, the parties hereto shall resolve such dispute in accordance with the
procedures set forth in this Section 17.
17.2 Consent of the Parties. In the event of any dispute after the date
of this Agreement between the parties with respect to any matter covered by this
Agreement, the parties shall first use their best efforts to resolve such
dispute among themselves. If the parties are unable to resolve such dispute
within 30 calendar days after the commencement of efforts to resolve such
dispute, such dispute will be submitted to arbitration in accordance with this
Section 17 (excepting always that either party may in its sole discretion
institute legal action in any court to enjoin or obtain equitable relief with
respect to any claim of violation or threatened violation of Sections 16.3, 16.4
or 16.7 of this Agreement).
17.3 Arbitration.
(a) Either the Licensee, on the one hand, or the Licensor on the
other hand, may submit any matter referred to in Section 17.1 hereof to
arbitration by notifying the other party hereto, in writing, of such dispute.
Within ten (10) Business Days after receipt of such notice, the Licensee and the
Licensor shall designate in writing one arbitrator to resolve the dispute;
provided, however, that if the parties hereto cannot agree on an arbitrator
within such ten (10)-Business Day period, the arbitrator shall be selected by
the American Arbitration Association. The arbitrator so designated shall not be
a current or former employee, consultant, officer, director or stockholder of
any party hereto or any affiliate of any party to this Agreement.
(b) Within ten (10) Business Days after the designation of the
arbitrator, the arbitrator, the Licensee and the Licensor shall meet, at which
time the Licensee and the Licensor shall be required to set forth in writing all
disputed issues and a proposed ruling on each such issue.
15
(c) The arbitrator shall set a date(s) for a hearing(s), which
shall be no later than 45 days after the submission of written proposals
pursuant to paragraph (b) above, to discuss each of the issues identified by the
Licensee and the Licensor. Each such party shall have the right to be
represented by counsel. The arbitration shall be governed by the rules of the
American Arbitration Association; provided, however, that the arbitrator shall
have sole discretion with regard to the admissibility of evidence.
(d) The arbitrator shall use his best efforts to rule on each
disputed issue within 30 days after the completion of the hearings described in
paragraph (c) above. The determination of the arbitrator as to the resolution of
any dispute shall be binding and conclusive upon all parties hereto. All rulings
of the arbitrator shall be in writing and shall be delivered to the parties
hereto.
(e) The arbitrator may, in his or her discretion, award attorneys'
fees and expenses in connection with the arbitration determination.
(f) Any arbitration pursuant to this Section 17 shall be conducted
in Boston, Massachusetts. Any arbitration award may be entered in and enforced
by any court having jurisdiction thereover and the parties hereby consent and
commit themselves to the jurisdiction of the courts of The Commonwealth of
Massachusetts for purposes of the enforcement of any arbitration award.
18. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or sent by
telecopy, overnight courier, registered or certified mail, postage prepaid,
addressed as follows or to such other address of which the parties may have
given notice:
To the Licensor: ON Technology Corporation
000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: President
With a copy to: Xxxxx Xxxxx-, Esq.
Xxxxxxx Xxxxxx & Green, P.C.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
To the Licensee: Meeting Maker, Inc.
P.O. Box 219, First Home Tower,
British American Centre,
Xxxxxx Town, Grand Cayman
With copies to: Meeting Maker - United States, Inc..
000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: Corporate Counsel
00
Xxxxxx X. Xxxxx, Xxx.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Unless otherwise specified herein, such notices or other communications shall be
delivered by a recognized overnight delivery courier such as DHL or Federal
Express and shall be deemed received on the date of actual receipt.
19. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Licensee, on the one hand, and the Licensor, on the
other hand, may not assign their respective obligations hereunder without the
prior written consent of the other party. Any assignment in contravention of
this provision shall be void. No assignment shall release the Licensee or the
Licensor from any obligation or liability under this Agreement. Each party (an
"ASSIGNING Party") may, without the other party's consent, assign its rights and
obligations hereunder in connection with the sale of all or substantially all of
the Assigning Party's assets or stock, or in connection with the merger or
consolidation of the Licensor with a third party; provided, however that such
assignee assumes the Assigning Party's obligations hereunder.
20. Entire Agreement; Amendments; Attachments.
20.1 This Agreement, all Schedules and Exhibits hereto, and all
agreements and instruments to be delivered by the parties pursuant hereto
represent the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior oral and written
and all contemporaneous oral negotiations, commitments and understandings
between such parties. In connection with the foregoing, the Licensor and
Licensee agree that upon the execution and delivery of this Agreement that each
of the following agreements (collectively, the "ASSET ACQUISITION AGREEMENTS")
executed and delivered in connection with the Asset Acquisition shall be
terminated, shall be of no further force or legal effect, and all obligations of
the parties thereto shall cease as of the Effective Date:
(a) The Asset Purchase Agreement, as amended;
(b) The Management Agreement, as amended;
(c) The Escrow Agreement, as amended, by and among the Licensor,
the Licensee, and Xxxxxxx Xxxxxx & Green, P.C., dated January 3, 2000;
(d) The Security Agreement, by and between the Licensor and the
Licensee, dated January 3, 2000;
(e) The Transition Agreement by and between the Licensor and the
Licensee, dated January 3, 2000; and
(f) Any and all other agreements and arrangements in connection
with any or all of the foregoing.
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In connection with the termination of the Asset Acquisition Agreements, (i) the
parties will cooperate with each other to execute, deliver, and, to the extend
necessary, file appropriate documentation to carry out the intent of such
termination, and (ii) each party releases the other from any and all legal
obligations and releases any and all claims that they have or may have against
the other party under any and all of the Asset Acquisition Agreements, including
without limitation the "Liquidated Damages Payment" (as defined in the Asset
Purchase Agreement).
20.2 The Licensee, by the consent of its Board of Directors or officers
authorized by such Board, on the one hand, and the Licensor by the consent of
its Board of Directors or officers authorized by such Board, on the other hand,
may amend or modify this Agreement, in such manner as may be agreed upon, by a
written instrument executed by the Licensee and the Licensor.
20.3 Except as specifically set forth herein, this Agreement shall not
preclude or supersede any obligation that either the Licensor or the Licensee
may have with respect to the purchase, sales or support of products under
existing agreements.
20.4 If the provisions of any schedule or exhibit to this Agreement are
inconsistent with the provisions of this Agreement, the provisions of the
Agreement shall prevail. The exhibits and schedules attached hereto are hereby
incorporated as integral parts of this Agreement.
21. Severability. Any provision of this Agreement which is invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
22. Expenses. The Licensee, on the one hand, and the Licensor, on the other
hand, will pay all fees and expenses incurred by them in connection with the
transactions contemplated hereunder.
23. Legal Fees. In the event that legal proceedings are commenced by the
Licensee against the Licensor, or by the Licensor against the Licensee, in
connection with this Agreement or the transactions contemplated hereby, the
party or parties which do not prevail in such proceedings shall pay the
reasonable attorneys' fees and other costs and expenses, including investigation
costs, incurred by the prevailing party in such proceedings.
24. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts. Each party hereto
irrevocably consents to the exclusive personal jurisdiction of the state courts
of The Commonwealth of Massachusetts and the federal courts of the United States
resident in The Commonwealth of Massachusetts, and waives any objection which it
might have based on improper venue or FORUM NON CONVENIENS to the conduct of
proceedings in any such court, waives personal service on it, and consents that
all such service of process may be made by mail in accordance with Section 20
hereof.
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25. Taxes and Duties. Unless the Licensee provides the Licensor with a copy
of a valid tax exemption certificate, the Licensee shall pay, or upon receipt of
invoice from the Licensor, shall reimburse the Licensor for all sales, use,
property, customs, excise or other taxes (however designated and whether foreign
or domestic, but not including taxes based upon the Licensor's income) imposed
on the Licensee, or required to be collected by the Licensor, or imposed on the
Product or the use thereof, irrespective of whether included in any invoice sent
to the Licensee at any time by the Licensor
26. Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
IN WITNESS WHEREOF, each of the Licensor and the Licensee has executed this
Agreement as of the day and year first above written.
MEETING MAKER, INC. ON TECHNOLOGY CORPORATION
By:_________________________________ By:______________________
P. Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx
Chief Executive Officer
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