EXHIBIT 10.19
SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (this "AGREEMENT") is entered into as
of August 29, 2003 (the "EFFECTIVE DATE") by and between SearchHelp, Inc., a
Delaware corporation ("LICENSOR"), and Family Trusted Products, LLC, a Delaware
limited liability company ("LICENSEE").
RECITALS
A. Licensor owns the exclusive rights to the "Browser Software" and the
"Remote Software" identified on EXHIBIT A attached hereto (the "PRODUCTS") and
the trademarks identified on EXHIBIT B attached hereto (the "TRADEMARKS").
B. Licensee desires to obtain the right to access and use the Products
and the Trademarks under the terms and conditions of this Agreement.
C. Licensor and Licensee now desire to enter into this Agreement,
whereby Licensor will grant to Licensee certain rights and licenses in and to
the Products and the Trademarks.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the receipt, adequacy and legal sufficiency of
which Licensor and Licensee hereby acknowledge, the parties hereby agree as
follows:
1. LICENSE GRANT.
1.1. LICENSE GRANT. Subject to the terms and conditions of this
Agreement and Section 4.4, Licensor hereby grants to Licensee an exclusive
right and license, under all intellectual property rights applicable to the
Products and the Trademarks, to access, use, execute, display, market,
sell, transfer, distribute and sublicense the Products and to use the
Trademarks. Licensor shall, at its expense, upon request from time to time,
provide the Products on a master CD-ROM to be used for duplication for sale
by Licensee.
1.2. RESTRICTIONS. Except as expressly permitted under this Agreement,
Licensee shall not, without the prior consent of Licensor, (a) use the
Products or Trademarks to violate any law or regulation, or facilitate the
violation of any law or regulation, or (b) modify, decompile, disassemble
or reverse engineer the Products.
1.3. TRANSFER EVENTS. Licensee shall acquire, subject to Section 3.1,
a perpetual right and license to access, use, execute, display, modify,
market, sell, transfer, distribute, develop and sublicense the Products
without restriction and notwithstanding Article 4, either: (a) upon the
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bankruptcy (whether voluntary or involuntary and which shall not have been
dismissed or a stay obtained within 60 days thereafter) of, dissolution or
liquidation of, assignment for the benefit of creditors of, or imposition
of a receiver with respect to, Licensor, or (b) in the event Licensor is
incapable of providing to Licensee the services required by this Article 1,
and such incapability continues for a period in excess of 60 days
subsequent to Licensee's notice to Licensor. In such event, Licensor (or
its legal representative(s), as applicable) shall take all actions
necessary to enable Licensee to exercise such right and license in the
continuation of Licensee's business and operations, including providing to
Licensee the source code and object code and all compiled web programming
language that underlies the Products and all related documentation.
Notwithstanding the provisions of Section 1.4 below, Licensee shall acquire
all right, title and interest in and to all developments and modifications
of the Products undertaken by Licensee subsequent to the occurrence of any
of the events described in the first sentence of this Section.
1.4. OWNERSHIP. Except as set forth in Sections 1.3, 1.5 and 1.6,
Licensor shall retain all right, title and interest (including copyright
and other proprietary or intellectual property rights) in and to the
Products and the Trademarks and any and all derivative works, modifications
or enhancements thereto. Without in any manner limiting the foregoing,
Licensor shall retain all right, title and interest in and to the source
code, development code/programming language, functions and features
developed by Licensor that are now, or may in the future, be, integrated
into the Products or may, in the future, be used to enhance the Products
subsequent to the Effective Date or improve the management of processes
associated with the Products; provided, however, in no event will Licensor
receive any right, title or interest in any other software, as it may be
modified, which is currently, or may in the future be, owned by or licensed
by Licensee from any third party, including Licensee's Family Trusted
Digital ID and Family Trusted Family Protection Edition.
1.5. LIMITATION ON LICENSOR. Licensor acknowledges and agrees that the
right and license granted pursuant to Section 1.1 constitutes the only
licenses with respect to the Products to be granted by Licensor, except as
expressly permitted herein.
1.6. GRANTS OF LIMITED LICENSES. Notwithstanding anything to the
contrary herein, Licensor hereby acknowledges and agrees that Licensee may
grant to its clients and customers limited licenses and sublicenses to
utilize the Products.
1.7. SALES RESTRICTIONS. Licensee shall obtain the approval of
Licensor to sell the Browser Product for a sales price netting Revenues (as
defined below) below $10.00 per Browser Product from a retail sale or $3.00
per Browser Product from a Sponsorship sale. A "SPONSORSHIP" sale is a sale
where a Product is bundled with another software or hardware product or is
otherwise part of a non-retail sales promotion. If Licensee wishes to sell
at a price lower than the price set forth in the first sentence, Licensee
may, at its option at any time, sell at such lower price if Licensee timely
remits the amount of royalty and customer support payments to Licensor as
if the Licensee sold at the prices set forth in the first sentence. If
Licensor's customer service costs are more significant than currently
expected, Licensor may prospectively increase these minimum prices by
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reasonable amounts upon 90 days notice to Licensee; provided, however, that
no such increase shall affect sales that have occurred or been agreed upon
prior to the effective date of such increase.
1.8. ENHANCEMENTS, MODIFICATIONS AND CUSTOM DEVELOPMENT. From time to
time, subsequent to the Effective Date, Licensee may request Licensor to,
or Licensor may in its discretion, make enhancements or modifications to or
perform custom development of one or more of the Products, and Licensor
shall make such enhancements, modifications and changes and undertake such
development at its expense; provided, however, Licensor shall be under no
obligation to make such enhancements or modifications or undertake such
development except if reasonably requested by Licensee to (a) reflect names
and logos (and changes thereto) chosen by the Licensee for each Product
(including Family Trusted, The National Center for Missing and Exploited
Children, Good Housekeeping, and large customers), (b) reorganize the
layout or main page or other pages or layout of a Product if Licensee
reasonably believes change is needed for marketing purposes or ease of use,
(c) meet reasonable marketing requirements or (d) comply with reasonable
objections or requests of The National Center for Missing and Exploited
Children or large customers. Licensee intends to use the Family Trusted
name on the Products where feasible. Any modifications or changes made, or
development undertaken, by Licensor shall be made available to Licensee
hereunder.
1.9. SUPPORT. Licensor shall provide customer support for the Products
at its expense, subject to the Help Account provisions in this Agreement.
The customer support provided shall be at the level customarily provided
for similar software.
1.10.PRODUCT PACKAGING AND MARKETING. Product packaging, reproduction,
manufacturing, marketing and distribution shall be at the expense and under
the control of Licensee. Licensor shall, however, assist Licensee as
reasonably requested.
1.11.CUSTOMER LISTS. Notwithstanding anything to the contrary herein,
all rights to any lists of customers of any kind developed as a result of
any of Licensee's direct or indirect sales or marketing efforts, including
customer support names and information and such lists maintained by
Licensor, shall be and remain forever the property of Licensee and not
Licensor and shall not be used by Licensor for any purpose without the
prior consent of Licensee. This Section 1.11 shall survive termination of
this Agreement for any reason.
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1. Licensor hereby represents, warrants and covenants to Licensee
that:
(a) Licensor is the lawful owner, free of all debts and encumbrances,
of each of the assets, properties and rights licensed, transferred or
assigned to Licensee hereunder, including the Products and Trademarks, that
it has the lawful right to license, sell and transfer the same, and that
the same are not subject to any lien or encumbrance.
(b) Licensor is duly authorized to execute and deliver this Agreement,
to comply with its terms, and to make the transfers and assignments
provided for herein.
(c) No portion of the Products contains or will contain any protection
feature designed to prevent its use. This includes, without limitation, any
computer virus, worm, Trojan-horse routine, trap door, time bomb or any
other codes or instructions that may be used to access, modify, delete or
damage Licensee's software, the Products or any user's computer system. The
Products and portions thereof may, however, contain a disabling device that
will protect the software from unauthorized use, as requested by Licensee
or as part of the Product's purpose.
(d) Licensor has no contractual commitment which may prevent or
interfere with the performance of Licensor's obligations under this
Agreement.
(e) Licensor's development work anticipated to be performed pursuant
to this Agreement will be original, Licensor (through its employees,
officers and agents) will be the sole author thereof, and Licensor will not
assign or pledge any rights thereto, except as otherwise provided or
permitted in this Agreement.
(f) The Products and the development work performed and to be
performed by Licensor pursuant to this Agreement will not contain any
unlawful, libelous or defamatory matter.
(g) To the best of Licensor's knowledge and belief, the Products do
not infringe upon or violate the rights, including patent and copyright, of
any other person or entity.
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2.2. Licensee hereby represents, warrants and covenants to Licensor
that:
(a) Licensee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all powers
and all governmental licenses, authorizations, consents and approvals
required to carry on its business as each is now being conducted. The
Licensee is duly qualified to do business and is in good standing in all
jurisdictions in which the conduct of its business makes such qualification
necessary.
(b) The execution, delivery and performance of this Agreement is
within the power and authority of Licensee and has been authorized by all
necessary action, and requires no action by or in respect of, or filing
with, any governmental authority.
(c) Licensee has no contractual commitment which may prevent or
interfere with the performance of Licensor's obligations under this
Agreement.
3. ROYALTY AND CUSTOMER SUPPORT PAYMENTS.
3.1. In exchange for the grant of the license and rights contemplated
by this Agreement, Licensee shall make royalty payments to Licensor of 10%
of Licensee's gross receipts from the Products (including any modifications
or derivatives of the Products notwithstanding Section 1.3) net of sales
taxes, duties, refunds, credit card transaction fees, and shipping and
handling charges separately charged (the "REVENUES").
3.2. Licensee shall deposit an amount equal to 5% of Revenues into an
account (the "HELP ACCOUNT") to be used by Licensor for direct Product help
and customer support expenses approved by both parties. If there is an
amount left in the Help Account 30 days after the end of each calendar
quarter, excluding amounts paid into the Help Account for the preceding
month, then that excess shall be paid to Licensee (which obligation shall
survive termination of this Agreement); provided, however, that this shall
be computed on a cumulative basis, so that if amounts in the Help Account
have been insufficient to pay for permitted expenses in prior periods, then
any excess in future Help Account amounts shall first be applied for that
purpose (either to pay such prior period bills or to reimburse Licensor
therefor).
3.3. Royalty and Help Account payments shall be made monthly, within
thirty days from the end of each month. Licensee agrees to provide Licensor
with quarterly reports with respect to the Revenues. Licensor agrees to
provide Licensee with quarterly reports with respect to the Help Account
and the amounts, description and purposes of expenses relating thereto and
the payees.
3.4. Licensor shall be entitled to review, or to have its independent
auditors review, no more frequently than once in each six month period,
during normal business hours, with four business days' advance notice,
Licensee's records and information relating to the calculation of
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Licensee's payment obligations hereunder. If the audit reveals that
Licensee has paid Licensor less than the sum to which Licensor is entitled
under this Agreement, Licensee shall pay Licensor, within five business
days after written notice of such underpayment, the additional sums due.
The expenses of such audit shall be borne by Licensor unless such audit
reveals an underpayment of more than 10%, in which case Licensee shall bear
the reasonable costs and expenses of the audit in addition to any shortfall
in payment.
3.5. Licensee shall be entitled to review, or to have its independent
auditors review, no more frequently than once in each six month period,
during normal business hours, with four business days' advance notice,
Licensor's records and information relating to calculations relating to the
Help Account. If the audit reveals that Licensor has paid Licensee less
than the sum to which Licensee is entitled under this Agreement from the
Help Account, Licensor shall pay Licensee, within five business days after
written notice of such underpayment, the additional sums due. The expenses
of such audit shall be borne by Licensee unless such audit reveals an
underpayment of more than 10%, in which case Licensor shall bear the
reasonable costs and expenses of the audit in addition to any shortfall in
payment.
3.6. Royalties due to The National Center for Missing and Exploited
Children shall be paid by Licensee.
4. TERM AND TERMINATION.
4.1. TERM. The term of this Agreement shall commence on the Effective
Date and shall continue until January 15, 2005 unless renewed or earlier
terminated in accordance with the terms of this Article 4.
4.2. RENEWALS. This Agreement shall be renewed automatically
indefinitely for 12-month terms so long as Revenues have been at least: (a)
$1,500,000 during the initial term for the first renewal (b) $2,500,000
during the preceding calendar year for the second renewal, and (c)
$3,500,000 during the preceding calendar year for each renewal thereafter.
The parties may agree in writing to renew even if the level of Revenues
above for that renewal has not been met (the "RENEWAL REVENUE LEVEL").
Licensee may, at its option at any time, make additional royalty and
customer support payments based on greater Revenues than actually received,
in which case such greater Revenues shall be deemed to have been earned for
the purposes of this Article 4 and therefore applied to the designated
Renewal Revenue Level.
4.3. NON-EXCLUSIVE LICENSE. If the Renewal Revenue Level has not been
met and this Agreement is not renewed by the parties, then this Agreement
shall be renewed automatically indefinitely for 12-month terms with the
exception that the licenses granted under Section 1.1 shall be on a
non-exclusive basis instead of an exclusive basis, with all other
provisions of this Agreement remaining unchanged and in effect except that
Licensor may in such case also terminate this Agreement on the second and
future non-exclusive renewal dates on 120 days' prior notice if Revenues
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have not been at least $1,000,000 during the preceding calendar year for
such renewal. Notwithstanding anything to the contrary herein and in the
event Licensee shall license any of the Products or any other products to
anyone other than Licensee or its assigns, such Products and products must
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be differentiated visually and by name, logo, trademark, supporters,
marketing materials, and look and feel from any Products or products sold
prior thereto by Licensee and so that there will be no market confusion
between them, provided, however, that the trademarks and logos owned by
Licensor, i.e., SPIKE, shall not need to be changed or differentiated by
Licensor in such case.
4.4. TERMINATION RIGHT. Licensee has the right to terminate this
Agreement for any reason at any time on 120 days' prior notice to Licensor.
On 120 days' prior written notice to Licensee, Licensor has the right to
terminate this Agreement: (a) if Licensee shall breach any of the terms or
provisions of this Agreement and shall not correct or remedy such breach
within 60 days of notice thereof (which 60-day period may run concurrently
with such 120-day period) or (b) for any reason on January 15, 2006;
provided, however, that, in the case of Section 4.4(b), Licensee shall have
the right to renew this agreement on a non-exclusive basis for one year.
Licensor may also terminate this Agreement at any time if Licensee shall
fail to remit any of the payments required under this Agreement and such
failure shall continue for a period of 45 days following written notice to
Licensee.
4.5. DISPOSITION OF INVENTORY. Notwithstanding anything to the
contrary herein contained, in the event of any termination of this
Agreement Licensee shall have the right to sell or otherwise dispose of any
inventory of any Products during or after any termination of this Agreement
and to take any actions necessary to do so. All royalty and other payment
obligations of Licensee under this Agreement to Licensor shall continue to
apply to any such sales after termination of this Agreement.
4.6. PROTECTED CHANNELS AND SOURCES. Notwithstanding any termination
of this Agreement or termination of this Agreement's exclusive basis or
anything else contained herein, Licensor and its officers, directors,
employees, assigns and licensees shall not, directly or indirectly, during
the term of this Agreement as it may be renewed and for three years
thereafter, sell to or through any non-retail customer that has purchased a
Product directly or indirectly from Licensee, or sell through any marketing
or sales channel (including retailers and online "stores") that has
purchased a Product from Licensee or sold a Product supplied to it by
Licensee, or seek, publicize or use the support of any entity from which
Licensee has previously obtained support for a Product (for example, The
National Center for Missing and Exploited Children or Good Housekeeping
magazine). Upon termination of this Agreement by the Licensee, and for a
period of 18 months thereafter, the Licensee and its officers, directors,
employees, assigns and licensees shall not, directly or indirectly
(including through or by the National Center for Missing and Exploited
Children, with the proviso that the Licensee cannot restrict the National
Center for Missing and Exploited Children except to the extent of
Licensee's involvement), market, sell, promote or distribute any goods or
products similar to, or which compete with, the Products, provided,
however, that no restriction in this sentence shall apply to Licensee: (a)
if the termination by Licensee is due to the inability of Licensor,
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following reasonable notice and 60 days opportunity to cure, to provide
Licensee with technologically state-of-the-art Products, (b) in the event
of the bankruptcy (whether voluntary or involuntary and which shall not
have been dismissed or a stay obtained within 60 days thereafter) of,
dissolution or liquidation of, assignment for the benefit of creditors of,
or imposition of a receiver with respect to, Licensor, or (c) if Licensor
shall breach any of the terms or provisions of this Agreement and shall not
correct or remedy such breach within 60 days of notice thereof, (d) if this
Agreement is terminated by Licensor other than due to a breach by Licensee,
or (e) if this Agreement is not renewed automatically pursuant to Section
4.2 due to failure to meet a Renewal Revenue Level.
5. MISCELLANEOUS.
5.1. GOVERNING LAW AND JURISDICTION; ARBITRATION. This Agreement shall
be governed and construed under the laws of the State of New Jersey,
without regard to the conflict of laws principles of such State. Without
prejudice to the exercise of any right to equitable relief as provided in
this Agreement, any dispute, controversy or claim arising out of or
concerning or relating to this Agreement or its interpretation, breach,
cancellation, performance or non-performance will be settled and determined
by arbitration in New Jersey in accordance with the rules of the American
Arbitration Association. Judgment upon any award rendered by the
arbitrators selected in accordance with this Section may be entered in any
court having jurisdiction thereof. The arbitrators shall award to the
prevailing party, if any, as determined by the arbitrators, all of its
Costs and Fees. "COSTS AND FEES" means all reasonable pre-award expenses of
the arbitration, including the arbitrators' fees, administrative fees,
travel expenses, out-of-pocket expenses such as copying and telephone,
court costs, witness fees, and attorneys' fees. The parties hereby consent
and submit to the jurisdiction of federal and state courts for the State of
New Jersey for the purposes of enforcing any award pursuant to this Section
or any claim for equitable relief under this Agreement and consent that
service of all papers in any proceeding hereunder may be made by certified
or registered first class mail, return receipt requested.
5.2. ASSIGNMENT. This Agreement shall bind and inure to the benefit of
the parties and their successors, legal representatives, heirs and
permitted assigns. Except as permitted by this Agreement, neither party may
assign or transfer any of its rights or obligations hereunder without the
prior consent of the other party, which consent shall not be unreasonably
withheld or delayed.
5.3. ENTIRE AGREEMENT. This Agreement and its exhibits constitute the
entire agreement between the parties hereto relating to the subject matter
hereof and supersede all prior oral and written understandings, discussions
and agreements regarding such subject matter. This Agreement may not be
amended, modified or cancelled except by a written instrument executed by
the parties.
5.4. RELATIONSHIP OF THE PARTIES. The parties hereto are independent
contractors and not partners, joint venturers or otherwise affiliated and
neither has any right or authority to bind the other in any way.
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5.5. NOTICES. Any notices or other communications required or
permitted to be given or delivered under this Agreement shall, unless
otherwise permitted, be in writing and shall be delivered personally, by
courier service, by e-mail, by facsimile machine (with confirmation in
writing to the addresses set forth below) or by registered or certified
mail, return receipt requested, postage pre-paid, as follows:
If to Licensor:
Xxxxxxx Xxxxxxxx, President
SEARCHHELP, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
xxxx@xxxxxxxxxx.xxx
-------------------
Copy to:
Xxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxxx@xxx.xxx
If to Licensee:
Xxxxx X. Xxxxxx, President
FAMILY TRUSTED PRODUCTS, LLC
00 Xxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
-----------------------------
Copy to:
Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
or
00 Xxxx 00 Xxxxxx, xxxxxxxxx 00X
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
-----------------------------
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or to such other address as a party may designate pursuant to this
notice provision. Any notice given shall be deemed to have been received on
the date on which it is delivered personally, by courier service or by
facsimile, or, if mailed, on the fifth business day following the mailing
thereof.
5.6. SEVERABILITY. Should any provision hereof for any reason be
declared invalid or unenforceable by final and unappealable order of any
court of competent jurisdiction, the remaining portions of this Agreement
shall remain in full force and effect. The waiver of any breach of any term
or condition of this Agreement shall not be deemed a waiver of any other or
subsequent breach, whether of like or different nature.
5.7. COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed
in counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
5.8. HEADINGS. The headings herein have been provided for convenience
of reference only and shall not affect the meaning or construction of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
LICENSOR LICENSEE
SEARCHHELP, INC. FAMILY TRUSTED PRODUCTS, LLC,
a Delaware corporation a Delaware limited liability company
By: By:
----------------------------- ------------------------------------
Xxxxxxx Xxxxxxxx, CEO Xxxxx X. Xxxxxx, President
------------------------------------
Xxxxx X. Xxxxxx, Member
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EXHIBIT A
TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
DESCRIPTION OF PRODUCTS
-----------------------
LICENSOR HAS DEVELOPED AND OWNS SOFTWARE
S.P.I.K.E. (SECURE PROTECT IDENTIFY KIDS EVERYWHERE) SOFTWARE PRODUCTS:
SearchHelp software products address varying needs of Internet protection and
monitoring depending upon the age of the child. Younger children will be able to
build their computer usage skills in an "insulated" environment, while older
children will be given the freedom to explore while protected by boundaries
meant to prevent access and exposure to mature content.
SPIKE SOFTWARE/BROWSER
SPIKE Software/Browser reflects the SearchHelp philosophy of helping parents and
families deal with the increasingly complex and threatening aspects of child
Internet usage. This product is meant to address the evolving needs of computer
using children of the youngest age, through that of adult users of shared
computers within the household.
SPIKE was designed to "level the playing field" for parents as it offers many
valuable features to ensure a child's safety online. SPIKE allows parents to
monitor their child's behavior on the Internet and to set security permission
levels for all users, depending upon their age and maturity. Young children surf
the Internet using the secure SPIKE Friendly Browser whereas older children are
monitored and/or blocked from `bad web sites' on major web browsers. SPIKE's
Artificial Intelligence (A.I.) protects children from online predators while
Instant Messaging and it immediately notifies parents of the inappropriate
discussion. Adult users are not monitored on SPIKE and they can lock important
documents on a shared computer.
SPIKE Software can filter, monitor and block four major browsers as well as the
customized Spike browser and the four major instant messaging application
providers.
SPIKE REMOTE SENTRY
SPIKE Remote Sentry addresses the same child computer usage issues and reflects
the reality that families face of needing to monitor their children when the
parent is away from home. This product allows parents to see on their computer
screen, exactly what their child is seeing on their screen. With SPIKE Remote
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Sentry, parents are able to be an active participant in their child's Internet
experience, whether it is from another computer in their home, at their office
or any computer that is online. SPIKE Remote Sentry let's parents stay connected
and it allows them to protect their children. Parents can redirect their child
to another web site, send the child a protective message, shut down their
child's computer or perhaps hide their taskbar or other desktop items. Parents
are also able to view the last 25 web sites visited.
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EXHIBIT B
TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
TRADEMARKS
----------
1. Spike Alert
U.S. Serial Number 78232302
2. Secure Protect Identify Kids Everywhere
U.S. Serial Number 78232313
3. Spikesworld
U.S. Serial Number 78292646
4. Spike Products
U.S. Serial Number 78292648
5. SPIKE
U.S. Serial Number 78292650
6. Spike Remote
U.S. Serial Number 78293809
7. Spike Remote Sentry
U.S. Serial Number 78293818
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AMENDMENT NUMBER 1 TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS AMENDMENT NUMBER 1 (this "AMENDMENT") to the SOFTWARE LICENSE
AGREEMENT, entered into as of August 11, 2003 between the parties hereto (the
"ORIGINAL AGREEMENT" and, together with this Amendment, the "AGREEMENT"), is
entered into as of December 15, 2003 by and between SearchHelp, Inc., a Delaware
corporation ("LICENSOR"), and Family Trusted Products, LLC, a Delaware limited
liability company ("LICENSEE").
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment and the Agreement, the receipt, adequacy and legal
sufficiency of which Licensor and Licensee hereby acknowledge, the parties
hereby agree as follows:
1. Section 4.1 of the Original Agreement is hereby replaced in its entirety
with the following:
4.1 TERM. The term of this Agreement shall commence on the Effective Date
and shall continue until July 30, 2005 unless renewed or earlier terminated in
accordance with the terms of this Article 4.
2. Section 4.2 of the Original Agreement is hereby replaced in its entirety
with the following:
4.2 RENEWALS. This Agreement shall be renewed automatically indefinitely
for 12-month terms so long as Revenues have been at least: (a) $1,500,000 during
the initial term for the first renewal, (b) $2,500,000 during the preceding 12
full calendar months (July 1 - June 30) for the second renewal, and (c)
$3,500,000 during the preceding 12 full calendar months (July 1 - June 30) for
each renewal thereafter. The parties may agree in writing to renew even if the
level of Revenues above for that renewal has not been met (the "RENEWAL REVENUE
LEVEL"). Licensee may, at its option at any time, make additional royalty and
customer support payments based on greater Revenues than actually received, in
which case such greater Revenues shall be deemed to have been earned for the
purposes of this Article 4 and therefore applied to the designated Renewal
Revenue Level.
3. Exhibit A of the Original Agreement is hereby amended as follows. SPIKE
Software can filter, monitor and block the three major browsers as well as the
customized SPIKE browser and the three major instant messaging application
providers.
4. Terms used in this Amendment and defined in the Original Agreement shall
have the meanings set forth in the Original Agreement unless otherwise specified
herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the above date.
LICENSOR LICENSEE
SEARCHHELP, INC. FAMILY TRUSTED PRODUCTS, LLC,
a Delaware corporation a Delaware limited liability company
By: By:
----------------------------- -----------------------------
Xxxxxx Xxxxxx, President Xxxxx X. Xxxxxx, President
-----------------------------
Xxxxx X. Xxxxxx, Member
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