LICENSE AGREEMENT
This License Agreement ("Agreement") is entered into as of this 16th day
of February, 2001 ("Effective Date") by and between Xxxxx Computer Aided
Technologies GMBH, a limited liability company organized under the laws of
Germany with an address at Xxxxxxxxxxxxx 00 X, 00000 Xxxxxx, Xxxxxxx ("Xxxxx")
and GiveMePower Inc., a corporation organized under the laws of Alberta, with
an address of Xxxxx 000, 0000 00xx Xxxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
("GMP").
Agreement. For good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Xxxxx and GMP agree as follows.
1. License.
(a) Grant. Subject to the terms and conditions of this Agreement,
Xxxxx grants to GMP a license to distribute the software in object code form
identified in Exhibit A attached hereto and made a part hereof (the
"Software") to end users and OEMs whose principal place of business is in
North America. Software shall also include all documentation and technical
support materials provided by Xxxxx relating to such software. The term
Software as used in this Agreement includes Updates and Upgrades to the
Software developed after the Effective Date that (i) are released by Xxxxx to
its customers generally; (ii) are internally developed by Felix's employees;
and (iii) run on a Windows desktop operating system. For the purposes of this
Agreement, (i) the term "Update" means a software fix or compilation of fixes
which correct functional defects in the Software; and (ii) the term "Upgrade"
means a revision to the Software which provides for some new and different
functions, and/or which increases the capacity of the Software to process
information or do meaningful work. GMP shall have the option to acquire a
license to Updates and Upgrades to the Software that do not meet these three
criteria, subject to payment by GMP of such fees as may be determined by
Xxxxx, acting reasonably (it being understood that such fees shall be in
addition to the Maintenance Fees set forth in Section 6 below). For the
purposes of this Agreement, an "OEM" is a customer of either party that
integrates, merges, combines or otherwise incorporates all or any part of the
Software into an application of its own design. The resulting product(s)
developed by such OEM (i.e., a product resulting from the OEM's integration,
merger, combination or other incorporation of the Software into an application
of the OEM's design) is hereinafter referred to in this Agreement as a "Value
Added Product."
(b) Restrictions. GMP shall not knowingly distribute the Software
outside of North America. This restriction shall not, however, prohibit GMP's
OEM customers from distributingValue Added Products outside of North America.
Nor shall this restriction prohibit GMP from distributing Value Added Products
outside North America.
(c) Exclusivity. Subject to the terms and conditions of this
Agreement, the license rights granted in Section 1(a) above shall be exclusive
within North America. Accordingly, Xxxxx shall not knowingly distribute the
Software within North America. This Section 1(c) shall not, however, prohibit
Felix's OEM customers from distributing Value Added Products within North
America. If a developer in North America does not wish to order Software
through GMP ("Rogue OEM") for reasons beyond GMP's control, GMP agrees that
Xxxxx can sell Software directly to such Rogue OEM. Except with respect to
MicroSurvey Software Inc., Xxxxx agrees to provide GMP with complete ordering
details as received from Rogue OEMs, and to pay GMP a commission for Felix's
sales resulting from Rogue OEM Software purchases, upgrade purchases, and
support contracts. Such commissions shall be calculated as follows: For any
OEMS that are customers of Xxxxx as of the date of this Agreement and that
become Rogue OEMs, the commission shall be 40% of sales. For any OEMs that
are not customers of Xxxxx as of the date of this Agreement and that become
Rogue OEMs, the commission shall be determined by mutual
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agreement of the parties. For Felix's sales to MicroSurvey Software Inc.,
notwithstanding anything in this Agreement to the contrary, Xxxxx will not be
obligated to pay any commissions to GMP. In all other cases, Xxxxx and GMP
will endeavor to have all current and future North American OEM's deal with
GMP. Each party agrees to notify the other should additional Rogue OEM
situations arise, and to openly discuss and resolve each case in an effort to
avoid interrupting the smooth flow of business with OEMs.
(d) Modifications. GMP shall have the right, at its expense, to modify
the Software to make stylistic and cosmetic changes to the Software; provided,
however, that all such modifications shall be subject to Felix's prior written
approval, which approval shall not be unreasonably withheld. In addition,
Xxxxx and GMP intend to jointly develop a limited function CAD system to be
branded as POWERCAD LT ("Power CAD LT") for free distribution by GMP. Xxxxx
will have the right to make all final decisions regarding Power CAD LT,
including without limitation its specifications, functionality, performance
and any modifications that may be made after its initial release, all such
final decisions to be provided on a timely basis. Xxxxx agrees that it will
act reasonably in making all final decisions regarding modifications made by
GMP to Power CAD LT. Xxxxx shall own all right, title and interest in and to
all modifications made by GMP (including, without limitation, Power CAD LT),
and GMP hereby assigns to Xxxxx all right, title and interest, including all
patent, trade secret, copyright and other intellectual property rights, in
such modifications. All such modifications shall be deemed Software as such
term is defined in this Agreement. Except as specifically provided in this
Section 1(d), or unless first agreed to in writing by Xxxxx, GMP shall not
modify the Software. GMP also agrees that it will not reverse engineer,
decompile, translate or disassemble the Software.
(e) Reservation of Rights. Nothing in this Agreement shall be deemed to
convey any title or ownership interest in the Software to GMP. GMP
acknowledges that (i) the Software contains valuable trade secrets, (ii) Xxxxx
reserves all rights, title and interest in the Software not expressly granted
to GMP herein, and (iii) that Xxxxx is the sole and exclusive owner of all
copyrights, under the laws of all applicable countries, to the Software
regardless of whether a copyright notice appears on the Software or whether
the Software has been registered with any country's copyright office. GMP
agrees to place all such proprietary rights notices on the Software as may be
requested by Xxxxx. Except as expressly permitted in this Agreement, GMP
shall not market, transfer, sell, lease, loan, sublicense, disclose or
otherwise transfer the Software to others.
2. Source Code Escrow. Within 14 days of execution of this Agreement, the
parties shall enter into a source code escrow agreement pursuant to which
Xxxxx shall deposit the Software in source code form with DSI Technology
Escrow Services Inc. or another mutually agreed-to third party escrow agent.
Xxxxx shall update the deposit with additional source code for each major
release or Upgrade of the Software but not less than annually. The escrow
account shall be maintained for the term of this Agreement, with all fees of
the escrow agent being the responsibility of GMP. The source code escrow
agreement shall provide that if Xxxxx becomes insolvent, ceases to carry on
business on a regular basis, or discontinues support to GMP for the Software,
then the escrow agent shall release the source code for the Software to GMP,
and Xxxxx will be deemed to have granted to GMP the right to use the source
code for the Software, subject to restrictions, limitations and other
provisions of the escrow agreement. The Agreement shall provide that customers
of GMP having licenses to the Software shall have the right to access such
source code in the event (i) GMP becomes insolvent or otherwise breaches its
obligation to provide maintenance for the Software for an applicable customer;
and (ii) Xxxxx is unwilling to provide maintenance (at the customer's
expense).
3. Trademarks. GMP will have the right to market the Software under the
names "PowerCAD" and "PowerEngine," or such other names as selected by GMP
with Felix's prior written consent, which consent shall not be unreasonably
withheld. It is understood, however, that GMP shall not use any name that is
confusingly similar to any name, tradename, trademark or slogan used by Xxxxx.
GMP will not use
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any names used to identify Software on any other product, either prior to or
following any termination of this Agreement. Notwithstanding anything in this
Agreement to the contrary, GMP shall own all right, title and interest in the
trademarks "PowerCAD," "Power Engine" and "PowerCAD LT" or other trademarks
designated by GMP with Felix's prior written consent, which consent shall not
be unreasonably withheld.
4. Sales Price; Sales & Efforts.
(a) GMP shall at all times be free to set the price for the Software;
provided, however, that the published price in any format (website, trade
magazines, trade shows, etc.) for PowerCAD and PowerEngine, or any other brand
name designated by GMP pursuant to Section 3 above, shall be no less than U.S.
$250.00 per license, unless previously agreed to in writing by Xxxxx.
Notwithstanding the foregoing, subject to the provisions of Section 1(d)
above, GMP shall have the right to distribute PowerCAD LT for free within
North America.
(b) GMP will charge a premium over and above the prices it generally
charges for developers who wish to use the Software for products other than
English ("Alternate Language Products"). Xxxxx and GMP will mutually agree on
an Alternate Language Products pricing schedule prior to sales by GMP, such
schedule to be provided by Xxxxx to GMP within 30 days of execution of this
Agreement, and to be attached as Exhibit B, made a part hereof by its
inclusion herein. Should GMP negotiate an agreement with a developer wishing
to use pricing different than defined in the Alternate Language Products
pricing schedule, GMP shall require approval from Xxxxx in advance, such
approval not to be unreasonably withheld.
(c) GMP shall use its best efforts to sell the Software within North
America. During the term of this Agreement, GMP shall neither develop nor
sell any product that competes with the Software, unless previously agreed to
in writing by Xxxxx.
5. Net Sales. For the purposes of this Agreement, the term "Net Sales" shall
mean the total of all sales by GMP of products that include any portion of the
Software, calculated as the final selling price of the Software to any and all
customers by GMP, after deducting any credits for returns actually made and
allowed by GMP. In computing Net Sales, no direct or indirect expenses
incurred in manufacturing, selling, distributing or advertising (including
cooperative and other advertising and promotion allowances) the Software shall
be deducted, nor shall any deduction be made for uncollectible accounts. Net
Sales shall not include any deduction for Maintenance Fees. Any taxes
actually paid may be deducted. Unless otherwise agreed to in writing by
Xxxxx, sales to any party directly or indirectly related to or affiliated with
GMP shall be computed using a price based on arms length sales to third
parties. Software shall be deemed to have been sold when invoiced by GMP, or
if not invoiced, then when delivered, shipped or paid for, whichever is first.
6. Maintenance Fees. Maintenance Fees as used in this Agreement includes
Software Updates and Upgrades, and Technical Support during the term of this
Agreement. Software Updates and Upgrades as used in this Agreement includes
all Updates and Upgrades to the Software developed after the Effective Date
that (i) are released and supported by Xxxxx to its customers generally; (ii)
are internally developed by Felix's employees; and (iii) run on a Windows
desktop operating system. For the purposes of this Agreement, (i) the term
"Update" means a software fix or compilation of fixes which correct functional
defects in the Software; and (ii) the term "Upgrade" means a revision to the
Software which provides for some new and different functions, and/or which
increases the capacity of the Software to process information or do meaningful
work. Software Updates and Upgrades shall also include all documentation and
technical support materials provided by Xxxxx relating to such Updates and
Upgrades. Technical Support as used in this Agreement means Xxxxx will provide
an Internet mailbox to GMP, and will
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provide support with respect to the use and implementation of the Software,
Updates, and Upgrades, in the form of email, telephone consultation and/or
website postings during the term of this Agreement.
During the term of this Agreement and in consideration of Xxxxx providing GMP
with Software Updates, Upgrades, and Technical Support as described in this
Section 6, GMP will pay Xxxxx minimum Maintenance Fees or 10% of Net Sales,
whichever is greater.
The first such minimum Maintenance Fee payment shall be in the amount of US
$25,000 and shall be due upon execution of this Agreement. Following the
Effective Date and continuing through and including June 30, 2001, GMP shall
pay Xxxxx minimum Maintenance Fees in the following amounts on the following
dates:
Minimum Maintenance Fees Due Date
--------------------------------------------------
US$25,000 March 31, 2001
US$25,000 June 30, 2001
All Maintenance Fee payments under this Section 6 are the absolute obligation
of GMP and are not subject to offset.
7. Late Payments. In the event that any Maintenance Fees are not received
by Xxxxx when due, GMP agrees to pay Xxxxx interest charges at an annual rate
of either (i) ten percent (10%), or (ii) five percent (5%) plus the prime rate
of interest published by the Wall Street Journal on the date the payment was
due, whichever is greater. Such interest shall be calculated from the date
payment was due until actually received by Xxxxx.
8. Assignment. GMP shall have no right to assign, sublicense or otherwise
transfer, directly or indirectly, any of its rights under this Agreement
unless it obtains the prior written consent of Xxxxx, which consent maybe
given or withheld by Xxxxx in its sole discretion. Notwithstanding the
foregoing, GMP shall have the right to assign its rights and obligations under
this Agreement, without such consent, to a third party provided that (i) the
third party is owned or controlled, directly or indirectly, by Xxxx Xxxxxx;
(ii) Xxxxx has the option to exchange its ownership interest in GMP for an
ownership interest in such third party that has a value equal to or greater
than the value of its ownership interest in GMP; and (iii) such third party
specifically agrees in writing to be bound by the terms and conditions of this
Agreement.
9. Term. The initial term of this Agreement shall be for a period of six
(6) months beginning on the Effective Date (the "Initial Term"). Upon the
expiration of the Initial Term, the term of this Agreement can only be renewed
upon the written approval of Xxxxx.
10. Termination.
(a) If either party should fail to perform any material provision of
this Agreement, the non-breaching party shall give written notice of such
default to the breaching party. If the breaching party should fail to cure
such default within sixty (60) days of receipt of written notice (provided,
however, that such cure period shall be only thirty (30) days in the event GMP
commits a breach of Section 6 above), the non-breaching party shall have the
right to terminate this Agreement by sending to the breaching party a notice
of termination. This Agreement shall automatically terminate on the date
indicated in the notice. Prior to sending such a notice, however, the
non-breaching party agrees to meet in person or by telephone
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conference with the breaching party to discuss a possible amicable resolution
to the matter short of termination of this Agreement. However, such
termination shall not impair or affect any accrued rights of either party. By
way of example and not limitation, it is expressly agreed and understood that
any failure by GMP to pay Xxxxx the Maintenance Fees required under Section 6
above shall constitute a failure to perform a material provision of this
Agreement, entitling Xxxxx to terminate this Agreement if all Maintenance Fees
are not paid in full within thirty (30) days of Felix's delivery of written
notice of such breach to GMP.
(b) In addition to the termination rights of the parties under Section
10(a) above, Xxxxx may immediately terminate this Agreement by giving written
notice to GMP if GMP does any of the following:
(i) files a petition of bankruptcy (or makes a filing under any
analogous law), is adjudicated as bankrupt, is insolvent, or makes an
assignment for the benefit of creditors, or makes an arrangement
pursuant to any bankruptcy law or any analogous law, or if a receiver is
appointed for GMP for GMP's business and such receiver is not discharged
within sixty (60) days;
(ii) substantially ceases to operate its business; or
(iii) breaches any obligation under Section 1(d) or 1(e) above.
11. Effect of Termination.
(a) Upon termination of this Agreement, all license rights granted to
GMP shall immediately terminate, and without impact on any other rights Xxxxx
may have, GMP agrees to:
(i) immediately discontinue distribution of all Software; and
(ii) immediately return to Xxxxx at GMP's cost all materials
relating to the Software, whether created by Xxxxx or GMP, including all
copies of the Software, and all marketing materials relating to the
Software.
12. Indemnification.
(a) GMP shall defend, indemnify, and hold harmless Xxxxx, its officers,
employees, and agents from and against any losses and expenses (including
attorneys' fees), claims, suits, or other liability, including product
liability, resulting from injury to or death of any person or damage to
tangible personal property arising out of or in any way connected with the
exercise of the license granted by this Agreement, except for injuries to
persons or damage to tangible personal property that are due to the negligence
or willful misconduct of Xxxxx, its officers, employees or agents.
(b) Xxxxx shall defend, indemnify, and hold harmless GMP, its officers,
employees, and agents from and against any losses and expenses (including
attorneys' fees), claims, suits, or other liability, including product
liability, resulting from injury to or death of any person or damage to
tangible personal property arising out of or in any way connected with Felix's
breach of this Agreement, except for injuries to persons or damage to tangible
personal property that are due to the negligence or willful misconduct of GMP,
its officers, employees or agents.
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(c) Intellectual Property Indemnification.
(i) Defense or Settlement of Claims. Xxxxx shall indemnify and
defend, or at its option, settle, any claim, suit or proceeding brought
against GMP based on an allegation that the Software infringes upon any
United States or Canadian copyright or violates any trade secret rights
of any party ("Infringement Claims"), provided GMP notifies Xxxxx in
writing within seven (7) days of its notification or discovery of an
Infringement Claim. Xxxxx shall pay reasonable attorney's fees, court
costs, and damages finally awarded in such Infringement Claim and the
reasonable costs associated with its settlement of any Infringement
Claim. In no event shall Xxxxx be liable for any losses of GMP arising
from any Infringement Claim. Xxxxx will have sole control over the
defense or settlement of any Infringement Claim, and GMP will provide
reasonable assistance in the defense of same (Xxxxx will reimburse GMP
for reasonable expenses incurred in providing such assistance). Any
favorable monetary award, judgment, or settlement will belong
exclusively and entirely to Xxxxx.
(ii) Infringement Cures. Following notice of a claim involving
allegations of infringement, or if Xxxxx believes such a claim is
likely, Xxxxx will, at its sole expense and option: (i) procure for GMP
the right to continue to use the allegedly infringing Software; (ii)
replace or modify the allegedly infringing Software to make it
non-infringing; or (iii) accept return of said Software and refund as
appropriate Maintenance Fees made therefore by GMP, for any historic Net
Sales for which GMP was required to make refunds to its customers.
(iii) Limitation. Notwithstanding any other provision of this
Agreement, Xxxxx assumes no liability, and shall have no liability, for
any Infringement Claim or allegation of infringement based on: (i) GMP's
use of any product after notice that GMP should cease use of such
product due to an Infringement Claim or allegation of infringement;
(ii) any modification of the Software by GMP or at its direction; (iii)
GMP's combination of Software with non-Xxxxx programs, data, hardware,
or other materials, if such Infringement Claim would have been avoided
by the exclusive use of the Software alone; or (iv) any trademark
infringement involving any marking or branding not applied by Xxxxx or
involving any marking or branding applied at GMP's request.
(iv) Entire Liability. THE FOREGOING PROVISIONS OF THIS
SECTION 12(c) STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF XXXXX, AND
THE EXCLUSIVE REMEDY OF GMP, WITH RESPECT TO ANY ALLEGED OR ACTUAL
INTELLECTUAL PROPERTY INFRINGEMENT.
13. Warranty.
(a) Warranty of Performance. For a period of ninety (90) days after
delivery to GMP, Xxxxx warrants that the Software will perform substantially
in accordance with Software specifications provided by Xxxxx to GMP. GMP's
exclusive remedy and the entire liability of Xxxxx under this warranty (which
is subject to GMP's returning the Software to Xxxxx) will be, at Felix's
option, to replace the Software or refund any Maintenance Fees received by
Xxxxx that are attributable to the defective products. Xxxxx makes no
warranty with respect to any other software, nor does Xxxxx make any warranty
regarding the functionality or performance of the Software when combined or
integrated with any other software. Xxxxx makes no warranty with respect to
any Software that has been modified by GMP or any third party. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION 13, XXXXX DISCLAIMS ALL EXPRESS AND
IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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(b) Intellectual Property Warranty. Xxxxx warrants that it has the
right to license the Software licensed to GMP hereunder, and to the best of
Felix's knowledge, no part of the Software infringes any intellectual property
rights of any third party. Felix's sole liability and GMP's sole remedy for
any breach of this Section 13(b) shall be as provided in Section 12(c) above.
14. Limitation of Liability. XXXXX SHALL NOT BE LIABLE TO GMP UNDER ANY
CIRCUMSTANCES (EVEN IF THIS AGREEMENT IS TERMINATED) FOR ANY CONSEQUENTIAL,
SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT
LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS
ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY,
NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION,
INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FELIX'S
AGGREGATE MONETARY LIABILITY FOR ANY CAUSE OR CAUSES (REGARDLESS OF THE FORM
OF ACTION) UNDER OR RELATING TO THE LICENSED SOFTWARE OR THIS AGREEMENT,
WHETHER PRIOR OR SUBSEQUENT TO ITS TERMINATION, SHALL IN NO EVENT EXCEED THE
TOTAL OF ALL AMOUNTS PAID TO XXXXX BY GMP PURSUANT TO THIS AGREEMENT.
15. Possible Sale of Source Code. In the event an unrelated third party seeks
to acquire substantially all of the business of GMP, whether by asset
purchase, stock acquisition, merger or other transaction, and such third party
requires ownership of the source code to the Software as a condition precedent
to its acquisition of GMP, Xxxxx agrees that it will transfer ownership of the
source code to the Software to such third party subject, however to the
following provisions of this Section 15. Such third party shall initially
transmit its written offer for the source code to the Software to GMP, and GMP
will subsequently submit to Xxxxx such written offer. Xxxxx agrees to
consider such offer and to accept it or reject it within thirty (30) days of
receipt. Xxxxx shall have the right to accept or reject such offer in its
sole discretion. This Section 15 shall have no impact on Felix's rights to
sell, license or otherwise dispose of the source code to the Software to any
other party at any time (it being therefore understood that Xxxxx may not have
the right to sell the source code to the third party seeking to acquire GMP).
16. Training. Xxxxx will provide, as needed, training sessions to GMP
employees for the Software, Updates, and Upgrades at no charge at Felix's site
in Berlin, Germany (GMP employees must schedule, make, and pay for their own
travel and accommodation).
17. Co-Development. GMP agrees that, subject to Felix's and GMP's mutual
agreement, it will fully cooperate with Xxxxx regarding the co-development of
the Software.
18. Termination of Existing Agreement With Xxxx Xxxxxx and FCAD Canada
Software Inc. Upon execution of this Agreement, GMP agrees that it shall
cause the existing agreement between Xxxxx and Xxxx Xxxxxx and FCAD Canada
Software Inc. (collectively, "FCAD") to terminate, GMP will cause FCAD to
cease all sales of Xxxxx products, and Xxxxx will make no further payments to
FCAD. In addition, upon execution of this Agreement, GMP will cause FCAD to
assign to Xxxxx all of its right, title and interest in and to the trademark
"FCAD," and FCAD will thereafter make no use of such trademark. Upon any
termination of this Agreement, GMP will cause FCAD to assign to Xxxxx all of
its right, title and interest in and to the domain name "XXXX.XXX" to Xxxxx.
During the term of this Agreement, GMP guarantees that neither FCAD nor any
other entity owned or controlled, directly or indirectly, by Xxxx Xxxxxx will
take any action that would prevent FCAD from making such assignment (for
example, FCAD shall not assign "XXXX.XXX" to any other person during the term
of this Agreement). During the term of this Agreement, the website at
XXXX.XXX will be maintained by GMP and will direct non-North American visitors
to Felix's websites.
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19. Right of First Offer. In the event the shareholders of Xxxxx intend to
solicit purchasers for the sale of substantially all of the business Xxxxx to
an unrelated third party, they shall first give notice to GMP, and upon
delivery of such notice, GMP shall have the right to submit a written offer
for the purchase of substantially all of the business Xxxxx within 14 days of
delivery of such notice, which offer may be accepted or rejected by the
shareholders of Xxxxx in their sole discretion. GMP grants Xxxxx a first
right of refusal to match any third party acquisition of GMP, whether in whole
or in part, with such right to be exercised within 14 business days of
receiving pertinent details of the pending acquisition.
20. Survival. The following Sections of this Agreement shall survive any
termination or expiration of this Agreement: Section 1(d) (excluding,
however, the first three sentences of such Section), Section 1(e), Section 6,
Section 7, Section 11, Section 12, Section 13, Section 14, Section 18, Section
21, Section 22 and Section 23.
21. Arbitration. If a dispute arises as to the interpretation or
performance of this Agreement, the dispute will be settled by arbitration,
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Such arbitration may be initiated by either party
making a written demand for arbitration on the other party. The demand shall
contain a statement setting forth the nature of the dispute, the amount of
damages involved, if any, and the remedies sought. Within ten (10) business
days of that demand, each party will appoint an arbitrator and the two
arbitrators so appointed will appoint a mutually agreed upon third arbitrator.
If the two arbitrators cannot agree on the third arbitrator, the American
Arbitration Association shall appoint one. All discovery will be completed
within sixty (60) days of the appointment of the third arbitrator. The three
arbitrators shall hold one or more hearings and decide the matter within
thirty (30) days after completion of discovery. The arbitration shall take
place in Phoenix, Arizona. The results of the arbitration shall be final and
binding on both parties. The substantially nonprevailng party shall pay (i)
all reasonable attorneys fees incurred by the substantially prevailing party
in connection with the arbitration and (ii) costs of the arbitration,
including any fees of the arbitrators. Notwithstanding the mandatory
arbitration contemplated by this Section 21, either party shall at all times
have the right and option to seek temporary and preliminary injunctive relief
for disputes arising under this Agreement, solely pending receipt of a final
determination by the arbitrators as contemplated by this Agreement.
22. Confidentiality. The Parties acknowledge that confidential information
provided under this Agreement, including all software, all financial
information, and all schedules and scheduling information constitutes a trade
secret and, as such, shall be held and maintained in confidence. The Parties
agree they will protect the confidentiality of any confidential information
provided by the other in a manner consistent with the way they protect their
own proprietary information, and shall implement policies and procedures to
ensure the privacy of the other's confidential information. For the purposes
of this Agreement, "confidential information" shall include only (i) such
information disclosed in tangible form that is labeled or marked with the
legend "confidential"; and (ii) such information disclosed in oral or visual
form, provided that such information is identified by the discloser as
confidential at the time of disclosure and is followed up within thirty (30)
days of disclosure by a written communication from the discloser to the
recipient confirming the disclosure as confidential and summarizing the
contents of the disclosure. Confidential information shall not include
information that: (a) was in the recipient's possession before receipt from
the discloser; (b) is or becomes a matter of public knowledge through no fault
of the recipient; (c) is rightfully received by the recipient from a third
party without a duty of confidentiality; (d) is disclosed by the discloser to
a third party without a duty of confidentiality on the third party; (e) is
independently developed by the recipient; (f) is disclosed under operation of
law; or (g) is disclosed by the recipient with the discloser's prior written
approval.
23. Miscellaneous. This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by the parties to this Agreement
shall be deemed to be an original, and all of which
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counterparts together shall constitute one and the same instrument; (ii) shall
be governed by and construed under the laws of Nevada applicable to contracts
made, accepted, and performed wholly within Nevada, without application of
principles of conflicts of laws; (iii) constitutes the entire agreement of the
parties with respect to its subject matter, superseding all prior oral and
written communications, proposals, negotiations, representations,
understandings, courses of dealing, agreements, contracts, and the like
between the parties in such respect; (iv) may be amended, modified, or
terminated, and any right under this Agreement may be waived in whole or in
part, only by a writing signed by each of the parties; and (v) contains
headings only for convenience, which headings do not form part, and shall not
be used in construction, of this Agreement; and (vi) with respect to temporary
and preliminary injunctive relief under Section 21 above only, may be enforced
exclusively in courts located within the State of Nevada, and the parties
hereby agree that such courts shall have exclusive venue and subject matter
and personal jurisdiction, and consent to service or process by registered
mail, return receipt requested, or by any other manner provided by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXX COMPUTER AIDED TECHNOLOGIES GMBH
By: /s/ Xxxxxxxx Xxxxxxx, President
GIVEMEPOWER INC.
By: /s/ W.V. Xxxxxx, CEO & President
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Exhibit A
Software
FelixCAD and the FCAD Graphic Developer's Engine sold by Xxxxx.
10/10
LICENSE RIGHTS OPTION
This Option Agreement is entered into as of this 16th day of February,
2001 ("Effective Date") by and between Xxxxxxxx Xxxxxxx of Berlin, Germany,
representing Xxxxx Computer Aided Technologies GMBH, a limited liability
company owned and controlled by Xxxxxxxx Xxxxxxx organized under the laws of
Germany with an address at Xxxxxxxxxxxxx 00 X, 00000 Xxxxxx, Xxxxxxx
(collectively "Xxxxx") and GiveMePower Inc., a corporation organized under the
laws of Alberta, with an address of Xxxxx 000, 0000 00xx Xxxxxx XX, Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0 ("GMP").
Option Agreement. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Xxxxx and GMP agree, pursuant to
the GMP/Felix001 License Agreement attached and made a part hereof, as
follows:
IF GMP, IN ITS SOLE DISCRETION,
1. Causes GMP's public parent company, Telnet World Communications, Inc.
("TWCI"), to issue to Xxxxxxxx Xxxxxxx or his nominees, one million
(1,000,000) common shares of TWCI, such common shares to be issued with a
Securities and Exchange Commission Rule 144 twelve-month resale
restriction ("Restricted Shares");
2. Instructs TWCI on or about the Effective Date to issue to Xxxxxxxx
Xxxxxxx or his nominees, a share certificate for the Restricted Shares to
be held in trust by a mutually agreed-to third party escrow agent, and;
3. Causes Xxxxxxxx Xxxxxxx to become a director on the Board of Directors of
TWCI.
THAN
Xxxxx agrees to grant GMP an extended term whereby the Initial Term as defined
in Section 9 of the GMP/Felix001 Agreement shall be extended from six (6)
months to five (5) years, with automatic renewal periods of five (5) years.
Consequently, Section 9 of the GMP/Felix001 Agreement shall be irrevocably
replaced in its entirety with this revised Section 9 as follows:
"9. Term. The initial term of this Agreement shall be for a period of five
(5) years beginning on the Effective Date (the "Initial Term"). Upon the
expiration of the Initial Term, the term of this Agreement shall automatically
renew for successive periods of five (5) years (each, a "Renewal Term")."
AND
Xxxxx agrees to credit the Minimum Fees as defined in Section 6 of the
GMP/Felix001 Agreement against running maintenance fees as defined in the
replacement Section 6 below. Consequently, Section 6 of the GMP/Felix001
Agreement shall be irrevocably replaced in its entirety with this revised
Section 6 as follows:
"6. Maintenance Fees. Maintenance Fees as used in this Agreement includes
Software Updates and Upgrades, and Technical Support during the term of this
Agreement. Software Updates and Upgrades as used in this Agreement includes
all Updates and Upgrades to the Software developed after the Effective Date
that (i) are released and supported by Xxxxx to its customers generally; (ii)
are internally developed by Felix's employees; and (iii) run on a Windows
desktop operating
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system. For the purposes of this Agreement, (i) the term "Update" means a
software fix or compilation of fixes which correct functional defects in the
Software; and (ii) the term "Upgrade" means a revision to the Software which
provides for some new and different functions, and/or which increases the
capacity of the Software to process information or do meaningful work.
Software Updates and Upgrades shall also include all documentation and
technical support materials provided by Xxxxx relating to such Updates and
Upgrades. Technical Support as used in this Agreement means Xxxxx will provide
an Internet mailbox to GMP, and will provide support with respect to the use
and implementation of the Software, Updates, and Upgrades, in the form of
email, telephone consultation and/or website postings during the term of this
Agreement.
In consideration of Xxxxx providing GMP with Software Updates, Upgrades, and
Technical Support as described in this Section 6, GMP will pay Xxxxx minimum
Maintenance Fees and running Maintenance Fees, as follows:
(a) Minimum Maintenance Fees. During the term of this Agreement, GMP
shall pay Xxxxx minimum Maintenance Fees. The minimum Maintenance Fees paid
by GMP shall be creditable against the running Maintenance Fees due under
Section 6(b) below.
(1) Initial Term. The first such minimum Maintenance Fee
payment shall be in the amount of US $25,000 and shall be due upon
execution of the GMP/Felix001 Agreement. Following the Effective
Date and continuing through and including December 31, 2001, GMP
shall pay Xxxxx minimum Maintenance Fees in the following amounts
on the following dates:
Minimum Quarterly Maintenance Fees Due Date
--------------------------------------------------
US$25,000 March 31, 2001
US$25,000 June 30, 2001
US$50,000 September 30, 2001
US$25,000 December 31, 2001
Commencing with the calendar quarter beginning on January 1, 2002, and
continuing for the next seven (7) calendar quarters thereafter, the minimum
quarterly Maintenance Fee due shall increase to US $50,000, and shall be due
on the last day of each of such eight (8) quarters. Commencing with the
calendar quarter beginning on January 1, 2004 and continuing until the end of
the Initial Term, Xxxxx shall have the right to increase such minimum
Maintenance Fees at a rate of increase not to exceed 20% per year.
(2) Renewal Term. During the Renewal Term(s), Xxxxx shall
increase minimum Maintenance Fees at a rate of increase equal to
10% per year.
(b) Running Maintenance Fees. During the term of this Agreement, GMP
shall pay Xxxxx running Maintenance Fees based on Net Sales (as such term is
defined in Section 5 of the GMP/Felix001 Agreement). The running Maintenance
Fees due to Xxxxx shall be calculated as a percentage of Net Sales, such
percentage to vary based on GMP's cumulative aggregate Net Sales, as follows:
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Running Maintenance Fees as
Percentage of Net Sales Cumulative Aggregate of Net Sales
---------------------------- ---------------------------------
10% 0 to US $1,000,000
9% US $1,000,001 to US $3,000,000
8% US $3,000,001 to US $6,000,000
7% Net Sales in excess of US $6,000,000
Running Maintenance Fees shall be paid no later than thirty days following the
end of each calendar quarter for the immediately preceding calendar quarter's
Net Sales. All Maintenance Fee payments under this revised Section 6 are the
absolute obligation of GMP and are not subject to offset."
Option Notification. GMP must notify Xxxxx in writing of its intent to
exercise this Option Agreement within six (6) months of the Effective Date of
this Option Agreement, unless Xxxxx, in its sole discretion, agrees in writing
to extend the exercisable term of this Option Agreement.
Should GMP elect to exercise this Option Agreement and compensate Xxxxxxxx
Xxxxxxx or his nominees with the Restricted Shares referenced in Section 1
above, the escrow agent shall immediately release and deliver the Restricted
Share certificate to Xxxxxxxx Xxxxxxx or his nominees.
In the event this Option Agreement expires without being exercised, the escrow
agent shall immediately return the Restricted Share certificate to GMP for
cancellation.
All other terms and conditions of the GMP/Felix001 Agreement will remain in
effect as defined in the GMP/Felix001 Agreement.
Xxxxxxxx Xxxxxxx warrants he has the authority and legal right to enter into
and honor the terms and conditions of this Option Agreement as controlling
shareholder of Xxxxx Computer Aided Technologies GmbH.
IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the
date first written above.
XXXXXXXX XXXXXXX / XXXXX COMPUTER AIDED TECHNOLOGIES GMBH
By: /s/ Xxxxxxxx Xxxxxxx, President
GIVEMEPOWER INC.
By: /s/ W.V. Xxxxxx, CEO & President
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