Exhibit 10.2
XXXX SOFTWARE LICENSE
This Xxxx Software License Agreement (the "Agreement") is entered into as
of the 16th day of October 2001 (the "Effective Date") between Xxxx Interactive
Services, Inc., a Colorado corporation ("Xxxx") and Nextron Communications,
Inc., a California corporation ("Licensee"), (Xxxx and Licensee individually, a
"Party" and collectively, the "Parties").
1. General Background. Xxxx owns certain software as set forth in Exhibit A
hereto (the "Software") and associated documentation, including without
limitation the documentation set forth on Exhibit A hereto (the
"Documentation"). Xxxx desires to license to Licensee (i) the Software, in
object and source code form, and (ii) the Documentation ((i) and (ii)
collectively, the "Licensed Materials") for any purpose anywhere in the world.
2. Statement of Agreement. In consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree to the terms,
conditions and obligations contained in this Agreement.
3. Grant of License. Xxxx hereby grants to Licensee and its affiliates,
successors and assigns an exclusive (subject only to the Existing Licenses (as
defined below)), irrevocable, transferable, worldwide, perpetual, royalty-free
license to use, operate, reproduce, display, perform, sell, assign, sublicense,
transfer, maintain, improve, modify, adapt, enhance and make derivative works of
all or a portion of the Licensed Materials in any manner and for any purpose.
The exclusivity of the foregoing license is subject only to the non-exclusive
licenses of the Software by Xxxx prior to the Effective Date that are listed in
Exhibit B hereto (the "Existing Licenses"). Xxxx represents and warrants that it
has provided Licensee with accurate and complete copies of the Existing Licenses
prior to the Effective Date. Xxxx shall not amend or extend the terms of any of
the Existing Licenses without Licensee's prior written consent, which consent
Licensee may withhold in its sole discretion.
4. Exclusions from Grant of License. There are no exclusions or restrictions on
this license of the Licensed Materials.
5. Ownership of Modifications. Any improvements, modifications, adaptations,
enhancements or derivative works of or to the Licensed Materials or made from
the source code to the Software (the "Source Code"), including without
limitation all intellectual property rights with respect thereto, (collectively,
"Modifications") shall be owned by Licensee or its successors or assigns. Xxxx
hereby assigns to Licensee all rights, title and interests in and to
Modifications. Xxxx shall deliver to Licensee all copies of Modifications.
6. Export Control. Licensee will comply with all relevant laws regarding export
of the Licensed Materials by Licensee.
7. Deliverables and Shipping. On the Effective Date, Xxxx shall deliver to
Licensee all copies of the Licensed Materials (except for copies of the Software
in object code form in the possession of licensees pursuant to the existing
licenses), including without limitation instructions for generating any per-copy
identifying information, computer programs, materials, tapes, know-how, object
and source codes, written materials, know-how and processes related to the
Software, with bug fixes, enhancements and upgrades as of the Effective Date.
Xxxx shall destroy or delete all copies and files containing the Licensed
Materials stored electronically or by other means. Xxxx shall provide
Documentation in both electronic and printed hard copy form, including without
limitation artwork if appropriate. Xxxx shall pay for all costs of shipping,
delivery and related insurance. Xxxx shall bear the risk of loss until
acceptance by Licensee at Licensee's facilities.
8. Fees. In consideration for the rights granted under this Agreement, Licensee
agrees to pay Xxxx $1 million on the Effective Date, such funds to be
transferred to Xxxx by wire transfer in accordance with instructions provided by
Xxxx.
9. Right to Prosecute Infringers. Xxxx hereby grants to Licensee, and Licensee
shall have, the sole and exclusive right to prosecute and xxx persons or
entities that infringe or misappropriate the Licensed Materials or violate any
copyright or other proprietary right of or associated with the Licensed
Materials. Xxxx shall cooperate with Licensee in such prosecution to the extent
requested by Licensee. Xxxx shall immediately notify Licensee of any
infringement, misappropriation or violation of the Licensed Materials. Xxxx
represents and warrants that it is under no obligation under contract or
otherwise to prosecute infringers of the Licensed Materials.
10. Warranties. Xxxx represents and warrants that:
(i) Media and Documentation Warranty. The media containing the Licensed
Materials and Modification shall be free of defects. Xxxx shall
replace the defective media as long as any such defect is found
within three months after acceptance by Licensee at Licensee's
facilities. All Documentation has been developed in accordance with
high professional standards.
(ii) Software Warranty. The software for the SiteBuilder, Connect and
Promote products performs in accordance with the documentation for
such products. The Software is in machine-readable and
human-readable form, contains all current revisions of such
software, and includes all computer programs, materials, tapes,
know-how, object and source codes, other written materials, know-how
and processes related to the Software.
(iii) Licensed Materials. Other than the copies of the object code of the
Software in the possession of licensees of Existing Licenses under
Section 3 hereto, there are no copies of the Licensed Materials (in
any form) other than those delivered to Licensee pursuant to Section
7 hereto. The copies of the Licensed Materials delivered to Licensee
pursuant to Section 7 hereto are complete and correct copies and
contains all of the software and documentation necessary to use and
operate the software for the SiteBuilder, Connect and Promote
products.
(iv) Enhancements, New Products. To Xxxx'x knowledge, neither Xxxx nor
any employee or agent thereof has developed or assisted in the
enhancement of the Licensed Materials except for enhancements
included in the Licensed Materials as delivered to Licensee pursuant
hereto or the development of any program or product based on the
Licensed Materials or any part thereof.
(v) Development. No employee of Xxxx is, or is now expected to be, in
default under any term of any employment contract, agreement or
arrangement relating to the Licensed Materials, Software or
noncompetition arrangement, or any other contract or any restrictive
covenant relating to the Licensed Materials or its development or
exploitation. To Xxxx'x knowledge, the
Licensed Materials were developed entirely by either (i) the
employees of Xxxx during the time they were employees only of
Xxxx and such Licensed Materials do not include any inventions of
the employees made prior to the time such employees became
employees of Xxxx nor any intellectual property of any previous
employer of such employee; or (ii) by consultants under agreements
providing that any of the Licensed Materials developed
by such consultants or their employees was the sole and exclusive
property of Xxxx.
(vi) Title. All right, title and interest in and to the Licensed
Materials and Modifications is owned by Xxxx, free and clear of all
liens, claims, charges or encumbrances and no party other than Xxxx
or the Existing Licenses has any interest in the Licensed Materials
and Modifications, including without limitation any security
interest, license, contingent interest or otherwise (except for the
Existing Licenses). To Xxxx'x knowledge, the development, use, sale
or exploitation of the Licensed Materials by Xxxx has not and will
not, and such development, use, sale or exploitation by Licensee as
contemplated by this Agreement will not, violate, any rights of any
other person or entity. Xxxx has not received any communication
alleging such a violation. Xxxx does not have any obligation to
compensate any person or entity for the development, use, sale or
exploitation of the Licensed Materials nor (except for the Existing
Licenses) has Xxxx granted to any other person or entity any
license, option or other rights to develop, use, sell or exploit in
any manner the Licensed Materials, whether requiring the payment of
royalties or not.
(vii) Protection of Proprietary Nature of Software. Xxxx has kept secret
and has not disclosed the Licensed Materials, including without
limitation the source code for the Software, to any person or
entity other than employees of Xxxx and others who are subject to
the terms of a binding confidentiality agreement with respect
thereto. Xxxx has taken appropriate measures to protect the
confidential and proprietary nature of the Licensed Materials,
including without limitation the use of confidentiality agreements
with all of its employees having access to the Software source and
object code. There have been no patents applied for and no
copyrights registered for any part of the Software.
(viii) No Disabling Code or Viruses. To Xxxx'x knowledge, neither Xxxx,
its employees or any third party has (a) introduced or coded any
virus or similar item into the Software or (b) inserted into the
Software any code that would have the effect of disabling or
otherwise shutting down all or a portion of the Software.
(ix) Year 2000 Compliance. The Software shall be capable of accounting
for all calculations using a century and date sensitive algorithm
prior to, for and after the year 2000 and the fact that the year
2000 is a leap year.
(x) Authorization. The performance of the rights and obligations set
forth under this Agreement will not breach any other agreement or
arrangement by which Xxxx is bound. Xxxx has the right and
authority to enter into this Agreement and to license the Licensed
Materials to Licensee in accordance with the terms hereof. Xxxx has
all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(xi) Exclusion of Other Warranties. EXCEPT AS PROVIDED IN THIS SECTION,
THE SOFTWARE IS PROVIDED "AS IS," AND NEITHER PARTY MAKES ANY OTHER
WARRANTIES. THE FOREGOING WARRANTY IS EXCLUSIVE OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
11. Indemnity and Limitation of Liability.
(i) Xxxx shall, at its expense, defend any suit or claim brought
against Licensee or its affiliates and shall indemnify Licensee
against any damages, fines, penalties, deficiencies, losses,
liabilities (including without limitation settlements and
judgments) and expenses (including without limitation interest,
court costs, reasonable fees and expenses of attorneys, accountants
and other experts) arising from or in connection with a claim (a)
that the Licensed Materials or Licensee's use of the Licensed
Materials infringes a patent, copyright or other proprietary right
or (b) under or relating to the Existing Licenses, if Licensee: (I)
promptly notifies Xxxx in writing of the suit or claim after
Licensee receives notice; (II) gives Xxxx authority to defend or
settle the suit or claim (subject to the last sentence of this
Section); (III) gives Xxxx all information in Licensee's control
concerning the suit or claim; and (IV) reasonably cooperates and
assists Xxxx with defense of the suit or claim at Xxxx'x expense.
This indemnification shall not apply against any suit or claim of
infringement to the extent based upon the use of the Source Code in
combination, operation or use with any product not furnished by
Xxxx or in a modified state not authorized by Xxxx.
(ii) Limitations on Xxxx'x Liability for Infringement. If the Licensed
Materials become or in Xxxx'x opinion are likely to become the
subject of a suit or claim of infringement of a patent or
copyright, Xxxx shall at its option and expense (a) obtain the
right for Licensee to use the Licensed Materials, or (b) replace or
modify the Licensed Materials so that they become non-infringing or
(c) if it is not possible to do either (a) or (b), terminate this
Agreement to the extent it relates to the infringing software. In
the event that this Agreement is terminated under this section,
Licensee shall cease to use the infringing Software, and Xxxx shall
pay Licensee, as Licensee's sole and exclusive remedy against Xxxx
for said termination, an amount equal to the Fees paid under this
Agreement for the infringing Software less any cumulative
amortization or depreciation of that software by Licensee on its
financial statements as of the date when Xxxx terminates this
Agreement, or portions thereof.
(iii) Other Limitations of Liability. IN NO EVENT SHALL THE PARTIES BE
LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS
INCURRED BY LICENSEE OR ANY OTHER THIRD PARTY. THE FOREGOING
LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION BASED ON
CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Confidentiality. Xxxx shall treat the Licensed Materials, including without
limitation any know-how, processes and concepts relating thereto or contained
therein, as confidential information of Licensee and shall hold the Licensed
Materials in strict confidence and not disclose or otherwise use the Licensed
Materials, except as expressly approved in writing by Licensee.
13. Assignability. Licensee may assign any and all rights or delegate its
obligations under this Agreement and the licenses granted hereunder, whether by
operation of law or otherwise.
14. Term of Agreement. This Agreement and the license is perpetual and
irrevocable.
15. Waiver. The Party entitled to the benefit of any provision of this Agreement
may waive said provision. Neither Party shall be deemed, by any act or omission,
to have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by an authorized officer of such Party. Such a waiver shall
be limited specifically to the extent set forth in said writing. Waiver as to
one event shall not be construed as waiver of any right or remedy as it relates
to any subsequent event
16. Governing Law. This Agreement will be governed by the laws of the State of
Colorado without regard to conflicts of laws principles.
17. No Agency. The Parties are independent contractors. Neither Party is an
employee, agent, co-venturer or legal representative of the other Party for any
purpose. Neither Party shall have the authority to enter into any legal or
equitable obligation for the other Party. Under no circumstances may either
Party hold itself out to have agency authority for the other Party. The Parties
agree not to make false or
misleading statements, claims or representations about the other Party, its
products or the relationship between the Parties.
18. Severability. If the application of any provision or provisions of this
Agreement to any particular set of facts or circumstances is held to be invalid
or unenforceable by a court of competent jurisdiction, the validity of said
provision or provisions to any other particular set of facts or circumstances
shall not, in any way, be affected. Such provision or provisions shall be
reformed without further action by the Parties to the extent necessary to make
such provision or provisions enforceable when applied to said set of facts or
circumstances.
19. Rules of Construction. As used in this Agreement. all terms used in the
singular shall be deemed to include the plural, and vice versa, as the context
requires. Descriptive headings are inserted for convenience only and shall not
be utilized in interpreting this Agreement. This Agreement has been reviewed by
respective counsel for the Parties and shall be interpreted in accordance with
its terms and without any strict construction in favor or against either Party.
20. Taxes. Xxxx shall be responsible for any sales or other taxes other than
income taxes associated with the license granted pursuant to this Agreement.
21. Amendment. This Agreement may not be modified or amended except in a writing
signed by a duly authorized representative of each Party.
22. Entire Agreement. The Parties, and each of them, represent and warrant that
this Agreement constitutes the complete and exclusive agreement between the
Parties with respect to the subject matter hereof. This Agreement supercedes all
previous or contemporaneous agreements, understandings and representations,
written or oral, with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
date first set above.
XXXX INTERACTIVE SERVICES, INC.:
By
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Its
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NEXTRON COMMUNICATIONS, INC.:
By
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Its
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EXHIBIT A
Description of Xxxx Software and Documentation
Xxxx Interactive Object and Source Code Inclusions:
Know how, all of Seller's modifications, adaptations, enhancements, and
derivative works made prior to the Effective Date, object code and source code
to all of the software required for the development, testing, demonstration,
maintenance, customer support and hosted operation of the following software,
inclusive of design documents, use cases, testing scripts, end-user and
developer documentation.
SiteBuilder
Connect
Promote
Promotions
Sign Up
Contact Center
Multi Services Page
Image Center
Inline Advertising
Common Administration and Provisioning Interface (CAPI)
All customizations developed for Existing Licenses are likewise transferred
herein, and all business, marketing and product planning and support materials
are transferred for all identified products and Existing Licenses.
License Fees: $1,000,000 to be paid by wire transfer on the Effective Date.
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EXHIBIT B
Existing Licenses
Support & Maintenance
Customer Contract Software Product or Service Renewal Date
Date
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Sympatico Lycos, Inc.* 03/13/00 Site Builder Included in monthly fee
Qwest Dex, Inc 05/17/01 Connect 05/16/02
Swiss Online, AG 02/28/01 Site Builder, Request, & Connect 5/31/02
Switchboard Incorporated 07/01/99 Site Builder Included in monthly fee
Promedia GVC (VNU World 07/17/00 Site Builder, Notify, Request, & Promote 7/16/01 - Did not renew
Directories)
British Telecommunications 06/30/00 Site Builder, Notify & Request 7/31/01 - Did not renew
plc (thereafter
transferred to Yell, Ltd.)
(*) Master Publishing Product Licensing Agreement between Xxxx
Interactive Services Inc. and Xxxx ActiMedia, Inc. executed March 17,
2000 and assigned by Xxxx ActiMedia, Inc. to Sympatico-Lycos Inc., an
affiliate of ActiMedia, effective as of May 2, 2000, as amended.
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