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EXHIBIT 10.4
TECHNOLOGY ACCESS LICENSE AND SUPPORT SERVICES
AGREEMENT
THIS AGREEMENT is made as of the 31st day of December, 1998
BETWEEN:
YORK REGION E-PROPERTY LIMITED PARTNERSHIP, a limited partnership registered
under the laws of the Province of Ontario (hereinafter called the
"Partnership");
AND:
PLANET TODAY INC., a company incorporated under the laws of Canada (hereinafter
called "Licensor");
WHEREAS:
A. Licensor is in the business of providing access licenses to certain
computer software known as the e-Property Technology; and
B. the Partnership has agreed to acquire from Licensor a technology access
license and support services to the e-Property Technology on the terms and
conditions set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH in consideration of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
I. INTERPRETATION
1.1. DEFINITIONS
In this Agreement, the following terms shall have the following respective
meanings, unless otherwise provided, and the singular or plural of such terms
shall have corresponding meanings:
"ACCESS RIGHTS" means the access rights that the Partnership obtains to the
e-Property Technology as set out in Schedule B;
"AREA" shall have the meaning set out in the Access Rights.
"CONFIGURATION" means third party software, computers, other equipment,
communications and other services and their set up, layout, interconnection,
operating environment and operating procedures;
"E-PROPERTY TECHNOLOGY" means the computer-based software system and facility
owned or licenced by the Licensor called "e-Property(TM)", the functional
specifications for which are described in Schedule A;
"INTELLECTUAL PROPERTY RIGHTS" means patents, trade marks, service marks,
registered designs, applications for any of the foregoing, copyright, know-how,
trade secrets, confidential information, trade or business names and any other
similar protected right in any country;
"LICENSE" means a restricted, non-exclusive, non-transferable license to the
Access Rights, without the right to sublicense;
"SUPPORT SERVICES" means the support services to be provided by Licensor
pursuant to Schedule D;
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"SYSTEM SPECIFICATIONS" are as set out in Schedule A;
"TRADE-MARKS" means the trade-marks that Licensor will license to the
Partnership in connection with the Licence as set out in Schedule E; and
"TRADE-MARKS LICENSE" shall have the meaning set out in Section 6.l.
1.2. SCHEDULES
The following schedules are incorporated into this Agreement and the contents
thereof form part of this Agreement:
SCHEDULE A e-Property Technology Specifications
SCHEDULE B Access Rights
SCHEDULE C License and Support Services Fees
SCHEDULE D Support Services
SCHEDULE E Trade-marks
2. LICENSE GRANT
2.1. LICENSE
In consideration of the payment of the license fee set out in Schedule C hereto,
Licensor hereby grants to the Partnership a License on the terms and conditions
contained in this Agreement.
2.2. TERM
The initial term of the Licence is for ten years, subject to the Partnership's
right to extend the term thereof for two additional terms of five years each
for no additional license fee.
2.3. DELIVERY
Licensor shall use its best efforts to provide the Access Rights to the
Partnership within thirty days of the execution of this Agreement so long as the
Partnership is not in default of any payment due to Licensor in accordance with
this Agreement.
3. PAYMENT TERMS
3.1. PAYMENTS AND OTHER CHARGES
The Partnership shall pay to Licensor the fees described in Schedule C. All
invoices are payable net 30 days. Prices and fees outlined in this Agreement do
not include goods and services tax or other taxes, levies, duties or charges
imposed by local, provincial, federal or other government authorities.
3.2. SALES AND OTHER TAXES
The Partnership shall pay any and all applicable federal, provincial or local
sales, use, property and/or value added taxes, excluding any taxes payable on
Licensor's income, required by law immediately upon receipt of an invoice from
Licensor or any earlier demand by any taxing authority therefore.
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3.3. LATE PAYMENT CHARGE
The Partnership is obliged to pay to Licensor the invoiced amount within thirty
(30) days of receipt of an invoice from Licensor. The Partnership will be levied
a late payment charge of up to 1.5% per month (18% per annum) on amounts overdue
by more than thirty (30) days of the date of receipt of an invoice from
Licensor.
4. SUPPORT SERVICES
4.1 SUPPORT SERVICES
Licensor shall provide Support Services to the Partnership in consideration of
the Support Services fee set out in Schedule C.
4.2 SUBCONTRACTING OF SUPPORT SERVICES
The Partnership acknowledges that Licensor hereby reserves the right to
subcontract the Support Services to third parties.
5. WARRANTIES
5.1. LICENSOR WARRANTIES
Licensor hereby warrants to the Partnership as follows:
(a) Licensor has full right and authority to grant the License;
(b) in the course of carrying out any provision of this Agreement, neither
Licensor nor any person for whom Licensor is responsible has taken or
shall take any action that results or would result in an infringement of
any copyrights, patents, trade-marks, trade secrets or other rights or
interests of any other person or result in a violation of any instrument
or agreement to which Licensor or any such person is bound; and
(c) the provision of the License hereunder shall be in compliance with all
laws and regulations applicable to Licensor.
5.2. LICENSOR WARRANTIES
Licensor hereby warrants to the Partnership as follows:
(a) the provision of the Support Services hereunder shall be in compliance
with all laws and regulations applicable to Licensor; and
(b) Licensor has full right and authority to grant the Trade-marks License.
5.3. NO OTHER WARRANTIES
LICENSOR DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
LICENSE, THE TRADE-MARKS LICENSE AND SUPPORT SERVICES. LICENSOR DOES NOT WARRANT
THAT THE LICENSE OR THE TRADE-MARKS LICENSE OR THE SUPPORT SERVICES WILL SATISFY
THE PARTNERSHIP'S REQUIREMENTS OR THAT EACH OF THE LICENSE, TRADE-MARKS LICENSE
AND SUPPORT SERVICES IS WITHOUT DEFECT OR ERROR OR THAT THE PARTNERSHIP'S USE OF
THE LICENSE OR SUPPORT SERVICES WILL
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BE UNINTERRUPTED. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE LICENSE OR
SUPPORT SERVICES IS YEAR 2000 COMPLIANT.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. USE OF TRADE-MARKS
Licensor hereby grants the Partnership a non-exclusive right to use the
Trade-marks in the Area for the purpose of marketing the Partnership's services
("Trade-marks License"). The Partnership agrees to use the style and format
specified by Licensor, as amended from time to time, and in accordance with
Licensor's specifications and guidelines for the use of the Trade-marks. The
Partnership shall not alter, obscure, remove, interfere with or add to any
of the Trade-marks, markings, trade names, copyright or other notices without
the prior written approval of Licensor, which approval shall be in Licensor's
sole discretion.
6.2. IDENTIFIERS
Partnership shall not alter, obscure, remove, interfere with or add to any of
the trade-marks, markings, trade names, copyright or other notices that are
accessible pursuant to the License without the prior written approval of
Licensor, which approval shall be at the Licensor's sole discretion.
6.3. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or relating to: (a) the License are and
shall remain the property of Licensor, its affiliates, and third party
licensors; (b) the Trade-marks License are and shall remain the property of
Licensor and its affiliates. The Partnership acknowledges and agrees that the
License grants access to copyrighted material, trade secrets and other
proprietary material of Licensor, its affiliates and third party licensors. The
Partnership shall immediately notify Licensor if the Partnership becomes aware
of any illegal or unauthorized use of: (a) the License or any of the
Intellectual Property Rights therein or relating thereto; and (b) the
Trade-marks License or any of the Intellectual Property Rights therein or
relating thereto. The provisions of this section shall survive the termination
of this Agreement.
Partnership acknowledges that the e-Property Technology is unique and has
particular value as proprietary information, the unauthorized use or disclosure
of which cannot be reasonably or adequately compensated in damages alone. In
addition to any and all remedies available at law, the Partnership agrees that
Licensor and/or Licensor shall also be entitled to equitable relief, including
injunction and specific performance in the event of any breach of this
Agreement.
6.4. LICENSOR'S COPYRIGHT INDEMNITY
Licensor will defend or settle at its own expense any action brought against the
Partnership to the extent that it is based on a claim that the e-Property
Technology supplied by Licensor infringes any third party's copyright and will
pay any costs and damages finally awarded against the Partnership in any such
action which are attributable to any such claim or incurred by the Partnership
through settlement of such claim. However, such defence and payments are subject
to the conditions that:
(a) Licensor will be notified promptly in writing by the Partnership of
any such claim;
(b) Licensor will have sole control of the defence and all negotiations
for any settlement or compromise;
(c) the Partnership will reasonably assist Licensor in the defence of
any such claim; and
(d) should the e-Property Technology become (or in Licensor's opinion be
likely to become) the subject of any such claim, the Partnership
will permit Licensor, at Licensor's option and expense, to: (i)
procure for the Partnership the right to continue having the Access
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Rights: or (ii) replace or modify the e-Property Technology so
that it becomes noninfringing while providing functionally
equivalent performance; or (iii) grant the Partnership a refund of
the price paid for the Licence as depreciated. Such depreciation
will be an equal amount per month over a five year period for the
e-Property Technology based on Canadian generally accepted
accounting practice.
Licensor will have no liability to the Partnership under any provision of
this Agreement with respect to any claim of copyright infringement which
is based: (a) upon the combination of the e-Property Technology with any
other product, data or program not furnished or approved by Licensors; or
(b) upon the misuse of the Access Rights by the Partnership or any third
parties.
6.5.CONFIDENTIALITY
(a) None of the parties shall disclose, divulge or communicate
to any person:
(i) any confidential information concerning the
e-Property Technology; or
(ii) any of the terms of this Agreement;
other than: (a) those whose position requires the same,
including persons requiring such information in the course
of its business: (b) as permitted or contemplated by this
Agreement; (c) with the written authority of the other
party: or (d) as may be required by law.
(b) Each party shall use its best efforts to prevent the
unauthorized publication or disclosure of any such
information or documents.
(c) Each party shall ensure that its employees are and any
person to whom such information or documents are disclosed
is aware of and comply with the confidentiality and
non-disclosure provisions contained in this Agreement.
(d) If either party becomes aware of any breach of confidence by
any of its employees it shall promptly notify the other
party and give the other party all reasonable assistance in
connection with any proceedings which the other party may
institute against any such employees and any persons to whom
disclosure has been made.
(e) The provisions hereof shall survive the termination of this
Agreement.
(f) The restrictions contained in subsection (a) (i) shall cease
to apply to any information which comes into the public
domain other than through unauthorized disclosure by the
receiving party or its employees.
7. TERM AND TERMINATION
7.1. TERM
This Agreement, the License and Trade-marks License granted
hereunder shall continue in full force and effect until terminated
in accordance with the terms and conditions of this Agreement.
7.2. TERMINATION
This Agreement, the License and the Trade-marks License granted
hereunder may be terminated upon the happening of any of the
following events:
(a) if the Partnership fails to fulfill any of its payment
obligations and the Partnership fails to cure such payment
default within seven (7) days of receiving written notice of
its default:
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(b) if the Partnership breaches any of the terms and conditions
of this Agreement and the Partnership fails to cure such
material breach within five (5) days of receiving written
notice of its default; and
(c) upon the occurrence of any of the following events of
default and the Partnership fails to cure such event of
default within thirty (30) days:
(i) if the Partnership, other than in connection with a
bona fide reorganization, is wound up, dissolved,
liquidated or becomes subject to the provisions of
the Winding Up Act (Canada) or has its existence
terminated unless such existence is immediately
reinstated or has any resolution passed therefor or
makes a general assignment for the benefit of its
creditors or a proposal under the Bankruptcy and
Insolvency Act (Canada) or is adjudged bankrupt or
insolvent; or if it proposes a compromise or
arrangement under the Companies' Creditors
Arrangement Act (Canada) or files any petition or
answer seeking any reorganization, arrangement,
composition, re-adjustment, liquidation, or similar
relief for itself under any present or future law
relating to bankruptcy, insolvency, or other relief
for or against debtors generally; or
(ii) if a court of competent jurisdiction enters an order,
judgment or decree approving a petition filed with
respect to the Partnership seeking any
reorganization, arrangement, composition,
re-adjustment, liquidation, dissolution, winding up,
termination of existence, declaration of bankruptcy
or insolvency or similar relief under any present or
future law relating to bankruptcy, insolvency or
other relief for or against debtors generally, or if
any trustee in bankruptcy, receiver, liquidator, or
any other officer with similar powers is appointed,
whether privately or judicially, with the consent or
acquiescence of the Partnership: or
(iii) if the Partnership shall be or become insolvent.
7.4. EFFECT OF TERMINATION
Upon termination of the Agreement, all the rights and obligations
of the parties under this Agreement with respect to the License and
the Trade-marks License shall automatically terminate, except for:
(a) payments owing by the Partnership to Licensor pursuant to
this Agreement; or
(b) such rights of action as shall have accrued prior to such
termination and any obligations which expressly or by
implication are intended to come into or continue in force.
Partnership shall at its own expense forthwith return to Licensor,
or otherwise dispose of as Licensor may instruct all technical and
promotional materials and other documents and papers whatsoever in
the possession or control of the Partnership and relating to the
License or the business of Licensor (other than correspondence
between the parties) and all property of Licensor in the
Partnership's possession or under its control.
8. LIMITATION OF LIABILITY
LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER LEGAL AUTHORITY INCLUDING, BUT NOT LIMITED TO, LOSSES OR
LIABILITIES FOR THE FAILURE OF THE LICENSE, LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR
OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO
USE THE LICENSE, THE TRADE-MARKS LICENSE OR THE SUPPORT SERVICES,
WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY
SUCH DAMAGES. LICENSOR'S ENTIRE LIABILITY AND PARTNERSHIP'S SOLE
REMEDY FOR ALL DAMAGES WITH RESPECT TO THE LICENSE AND THE
TRADE-MARKS LICENSE ACQUIRED BY PARTNERSHIP OR
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THE PROVISION OF SUPPORT SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY
PARTNERSHIP WHICH SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL OF ALL AMOUNTS PAID
BY PARTNERSHIP IN THE PREVIOUS 12 MONTHS FOR THE LICENSE OR SUPPORT SERVICES, AS
APPLICABLE.
9. GENERAL
9.1. FURTHER ASSURANCES
The parties shall execute such further documents and do such further things as
may be necessary to implement and carry out the intent of this Agreement.
9.2. ENTIRE AGREEMENT
This Agreement and documents contemplated hereby to be attached to this
Agreement constitute the entire agreement between the parties and supersede and
replace all previous expectations, understandings, communications,
representations and agreements whether verbal or written between the parties
with respect to the subject matter hereof.
9.3 SEVERABILITY
If any part of this Agreement is unenforceable or invalid for any reason
whatsoever, such part shall be severable from the remainder of this Agreement
and its unenforceability or invalidity shall not affect the enforceability or
validity of the remaining parts of this Agreement.
9.4. AMENDMENTS
This Agreement may only be modified or amended in writing duly executed by both
parties.
9.5. NOTICES
Every notice and every document or copy of a document required or permitted to
be given or delivered hereunder shall be given in writing and delivered by
facsimile transmission followed immediately by: a) registered mail: or b) sent
by courier, addressed to the respective party or parties as identified in the
form following, or to such other address as one party may advise the other in
writing from time to time, and shall be delivered to such address. Any such
notice shall be deemed to have been given at the time of delivery.
PARTNERSHIP: YORK REGION E-PROPERTY LIMITED
PARTNERSHIP
Attn: e-Property Services Corporation
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
Fax No: (000) 000-0000
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LICENSOR: PLANET TODAY INC
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
Fax No.: (000) 000-0000
9.6. TIME OF ESSENCE
Time shall be of the essence hereof.
9.7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws in
effect in the Province of Ontario.
9.8. HEADINGS
The headings in this Agreement and the division of this Agreement into sections
are for convenience of reference only and form no part of this Agreement.
9.9. ENUREMENT AND ASSIGNMENT
Partnership may not assign this Agreement or assign or sub-license any rights
hereunder without the prior written consent of Licensor, which consent may be
withheld, in its sole and absolute discretion. Licensor may assign this
Agreement to an affiliate and/or may assign the payment obligation to a third
party. This Agreement shall enure to the benefit of and shall be binding upon
the parties and their respective permitted assigns and successors.
9.10. ARBITRATION
In the event of any difference or dispute arising under this Agreement, the
disputing party shall give written notice of such dispute (the "Dispute Notice")
to the other party, setting out reasonable details of the dispute. Failing
settlement of the dispute by Licensor and the Partnership within 30 days after
the giving of the Dispute Notice, the dispute shall be determined by a single
arbitrator in accordance with the Arbitrations Act, 1991 (Ontario) as amended
from time to time. All awards pronounced by an arbitrator appointed in respect
of any dispute shall be reasoned awards in writing and shall immediately be
delivered to Licensor and the Partnership. All such awards shall be binding on
Licensor and the Partnership and no appeal from any award shall be allowed or
permitted unless the party appealing shall commence appeal proceedings in a
court of competent jurisdiction within 30 days after the award appealed from is
pronounced. The costs of any arbitration and court proceedings shall be in the
discretion of the arbitrator and, if the arbitration award is appealed, the
court.
9.11. WAIVERS
The waiver by a party of any of its rights hereunder or of the performance by
the other party of any of its obligations hereunder shall be without prejudice
to all other rights of the party and shall not be considered a waiver of any
other right or, in any other instance, of the rights so waived or a waiver of
performance by the other party of any of its obligations hereunder or of the
performance, in any other instance, of the obligations as waived. No waiver on
behalf of a party shall be effective or binding upon it unless made in writing.
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9.12. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations
hereunder (other than financial obligations) if such delay is caused by
circumstances beyond the reasonable control of the party so delaying and such
party shall be entitled to a reasonable extension of time for the performance of
its obligations.
9.13 CURRENCY
Unless otherwise indicated, all dollar amounts referred to in this Agreement are
in Canadian funds.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date set
forth above.
YORK REGION E-PROPERTY LIMITED PARTNERSHIP BY ITS
GENERAL PARTNER, E-PROPERTY SERVICES CORPORATION
By: [SIG]
-------------------------
Name: XXXXXX X. XXXXXXX
Title: Pres
PLANET TODAY INC.
By: [SIG]
-------------------------
Name: XXXXXX XXXXXXX
Title: Secretary
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SCHEDULE "A"
e-PROPERTY TECHNOLOGY SPECIFICATIONS
The e-Property Technology can be described generally as a shared electronic
platform that is capable of hosting a full range of interactive services,
including collaborative information and file sharing, e-commerce and e-business
transactions, relationship-building, permission marketing and messaging between
individuals, groups, business, governments and associations. It is based on
commercial intranet/extranet models used by corporations to enhance business
activities at local levels by servicing e-commerce, e-business, and information
technology needs of local or regional businesses, governments and organizations.
The e-Property Technology provides a simple and low-cost method for publishing,
sharing, co-editing, integrating, transacting, collecting and messaging
information. This information can include content distributed from a central
location downward, or data collected locally and channeled into a central
database. In terms of an information utility, the flow information is inherently
bi-directional.
The e-Property Technology consists of a custom designed Lotus Notes(TM)/
Domino(TM)(being registered trademarks of IBM) software application and has
embedded within it IBM's Community Point(TM)(being a registered trademark of
IBM), a Lotus Notes(TM)/Domino(TM) based system designed for use by
municipalities in Europe, pursuant to a licensing agreement between Licensor and
IBM. The e-Property Technology also consists, in general terms, of methodologies
and practices related to the generation of revenues through the delivery of
interactive services. The hardware component of the e-Property Technology
consists of a remote Internet server (owned by Planet Today and hosted by IBM)
and several local IBM "production terminals" configured with internet
connections and IBM's Lotus(TM) client software. To interface with the
e-Property Technology, end-users require only a personal computer with web
browser software capable of connecting to the Internet.
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SCHEDULE "B"
ACCESS RIGHTS
Access Rights consist of the right of the Partnership to use the licence rights
to the e-Property Technology, the Trade Marks and other Applications granted
herein within the following area:
The area comprising (i) The Town of Newmarket, which, for greater certainty
comprises, among other areas. The Town of East Gwillimbury and The Town of
Xxxxxxxx, and (ii) The Town of Aurora, which, for greater certainty comprises,
among other areas, The Township of King.
Pursuant to a Supplementary Indenture, the Partnership will be able to acquire
licence rights as granted hereunder upon payment of the appropriate fees for the
following area:
(i) The area comprising The Town of Richmond Hill;
(ii) The area comprising The Town of Markham and The Town of
Whitchurch-Stouffville; or
(iii) The area comprising The City of Xxxxxxx.
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SCHEDULE "C"
LICENSE AND SUPPORT SERVICES FEES
LICENCE FEE:
The Partnership shall pay to Licensor a licence fee of $337,500 per Area to
acquire the License for use and application within one or more of the Areas. The
licence fee shall be payable upon the execution and delivery of the Agreement as
follows:
(i) 1.28% of the licence fee shall be payable in cash;
(ii) 98.72% of the licence fee shall be payable by the assignment and
transfer by the Partnership to Licensor on a non-recourse basis
pursuant to the terms of the Assignment of Promissory Notes
Agreement executed between the Partnership, Licensor and
Licensor.
SUPPORT SERVICES FEE:
Partnership to be invoiced support services fee from time to time by Licensor.
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SCHEDULE "D"
SUPPORT SERVICES
Support services to be provided by Licensor to Partnership shall be negotiated
and agreed to in writing from time to time.
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SCHEDULE "E"
TRADE-MARKS
Please see attached.
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SCHEDULE "E"
TRADE-MARKS
1. [e-PROPERTY LOGO]
2.
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