WEBSITE HOSTING AND LICENSE AGREEMENT
EXHIBIT
10.1
This
WEBSITE HOSTING AND LICENSE AGREEMENT (the “Agreement”) is made and
entered into this 20th day of May, 2008 (the “Effective Date”), by and
between ZZPartners, Inc., a Nevada corporation (“Licensee”), and ZenZuu, Inc.,
a Nevada corporation (“Licensor”). Licensee
and Licensor may be referred to herein individually as a “Party” and, collectively, as
“Parties.”
RECITALS
WHEREAS, Licensor has
developed and is the sole and exclusive owner of a global social network
database (the “Database”) and an advertising
revenue-sharing model (the “Revenue-Sharing Model”), which
it promotes and markets on Licensor’s Internet website located at xxx.xxxxxx.xxx (the
“Site,” together with
the Database and the Revenue-Sharing Model, the “Products”);
WHEREAS, Licensor developed
and is the sole and exclusive owner of all know-how and information relating to
the Products, together with all trade secrets, knowledge, technology, software,
means, methods, processes, practices, formulas, instructions, skills,
techniques, procedures, experiences, ideas, designs, drawings, assembly
procedures, computer programs, apparatuses, specifications, data, results and
other material, including manufacturing procedures and test procedures and
techniques, (whether or not confidential, proprietary, patented or patentable),
that Licensor utilizes or later acquires in connection with the operation of
Licensor’s business (“Licensor
Technology”), which Licensor Technology, together with and all
improvements, whether to the foregoing or otherwise, and other discoveries,
developments, inventions, and other intellectual property (whether or not
confidential, proprietary, patented or patentable), industrial rights and other
intellectual property rights related to the Products, including, without
limitation, all (i) patents, reissues of and reexamined patents, and patent
applications, whenever filed and wherever issued, including, without limitation,
continuations, continuations-in-part, substitutes and divisions of such
applications and all priority rights resulting from such applications, (ii)
rights associated with works of authorship, including, without limitation,
copyrights, moral rights, copyright applications and copyright registrations;
(iii) rights associated with trademarks , service marks, trade names, logos,
trade dress, goodwill and the applications for registration and registrations
thereof; (iv) rights relating to the protection of trade secrets and
confidential information; (v) rights analogous to those set forth in this
Recital and any and all other proprietary rights relating to intangible
property, and (vi) divisions, continuations, renewals, reissues and extensions
of the foregoing now existing, hereafter filed, issued or acquired, shall
constitute the “Intellectual
Property Rights” for all purposes of this Agreement; and
WHEREAS, for the mutual
benefit of the Parties, Licensor desires to (i) provide to Licensee certain
website hosting and related services in connection with the operation of the
Site, as described in Article 1 below (collectively, the “Site Services”); and (ii) grant to
Licensee certain exclusive license rights to further develop and Exploit (as
defined below in Section 2.1) the Intellectual Property Rights and/or the
Products, pursuant to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties mutually agree as follows:
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ARTICLE
1
SITE
SERVICES
1.1 Description of
Services. During the term of this Agreement, Licensor agrees
to provide to Licensee the Site Services, pursuant to the terms and conditions
as set forth in this Agreement, including, without limitation, the Service Level
Agreement attached hereto as Exhibit
A (the “SLA”). Except as
otherwise expressly set forth herein, Licensor solely shall be responsible for
all methods, means, techniques, sequences and procedures and for coordinating
all portions of the Site Services. Any change in the scope of the
Site Services shall be made only in writing executed by authorized
representatives of both Parties. The applicable terms and conditions
of this Agreement will apply to any and all additional services agreed to by the
Parties. The Site Services will include the following:
(a) Licensor
will be solely responsible for housing, maintaining, supporting and operating
the Site for all functions pertaining to this Agreement.
(b) Licensor
will be solely responsible for maintaining, supporting and developing software
necessary to operate the Site and perform the Site Services
hereunder.
(c) Licensor
will be solely responsible for providing, updating, uploading and maintaining
any and all files, pages, data, works, information and/or materials on, within,
displayed, linked or transmitted to, from or through the Site, including,
without limitation, trade or service marks, images, photographs, illustrations,
graphics, audio clips, video clips, e-mail or other messages, metatags, domain
names, look and feel of the Site, software and text (collectively, the “Content”). Licensor
shall retain all right, title and interest in and to the Content and all legally
protectable elements, derivative works, modifications and enhancements thereto,
whether or not developed by Licensor, Licensee or any contractor, subcontractor
or agent for either Party. To the extent that ownership of the
Content does not automatically vest in Licensor by virtue of this Agreement or
otherwise, Licensee agrees to transfer and assign to Licensor all right, title
and interest in and to such Content. Notwithstanding the foregoing,
Licensor shall comply with requests of Licensee to immediately remove Content
that Licensee deems, in its reasonable discretion, objectionable or
offensive.
(d) Each of
Licensor and Licensee will be solely responsible for designating a system
administrator and maintaining a dedicated database server and related computer
equipment necessary for providing and/or accessing the Site Services, as
applicable. In the event that additional hardware, firm xxxx, server
capacity, or equipment becomes necessary (collectively, the “Equipment”) in providing
and/or accessing the Site Services, as applicable, each of Licensor and Licensee
shall be solely responsible for their individual respective costs in acquiring
such Equipment.
(e) Licensor
will upload and obtain all releases, consents and such other arrangements as may
be necessary in operating the Site and providing the Site Services and the
Content as set forth herein.
(f) Licensor
will use its best efforts to ensure that the Site is correctly tuned and
utilized to provide optimal performance and utilization to at least the minimum
performance standards specified in the SLA.
(g) Licensor
will consult with Licensee as necessary to facilitate the performance of the
Site Services as contemplated in this Article 1, including, without limitation,
evaluating the need on an annual basis, or as otherwise agreed to by the
Parties, to redesign the Site to keep it looking fresh and to utilize the latest
technology to drive advertising revenue and increase the number of members
included in the Database.
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(h) Licensor
will provide to Licensee prompt and responsive customer support in connection
with the Site Services and will designate a support representative to Licensee
for the term of this Agreement. Licensee shall appoint a designated
person as the primary contact for all Site Services to be provided by
Licensor. Such assistance shall be provided by Licensor to Licensee
without charge.
(i) Except as
otherwise set forth herein, Licensor shall have the exclusive right to manage
all resources used in providing the Site Services as Licensor deems appropriate,
including, without limitation, the right to relocate and substitute computer
equipment, personnel and other resources, and to change computer configurations
and procedures.
ARTICLE
2
LICENSE
GRANT
2.1 Exclusive License
Grant. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Licensee, and Licensee hereby accepts, as of the
Effective Date, a perpetual and exclusive right and license: (a) to develop and
Exploit the Intellectual Property Rights and/or the Products in the United
States (the “Territory”)
to increase Database membership within the Territory and generate advertising
revenue in furtherance of the Revenue-Sharing Model; and (b) to use any other
intellectual property rights now held or hereafter acquired or controlled by
Licensor that may be necessary or useful to Licensee in connection with its
Exploitation of the Intellectual Property Rights and/or the Products within the
Territory. “Exploit,” and any form of such
word, shall mean the making, having made, importation, use or development of the
Intellectual Property Rights and/or the Products.
ARTICLE
3
CONSIDERATION
3.1 Initial License
Fee. In consideration of the Services (as defined below in
Section 4.1) to be provided to Licensee and the rights and licenses granted to
Licensee by Licensor under this Agreement, Licensee shall pay to Licensor an
amount equal to One Million Dollars ($1,000,000) (the “Initial License Fee”) in the
aggregate. The Initial License Fee shall be payable as
follows: (a) Five Hundred Thousand Dollars ($500,000) on May 23, 2008
via wire transfer of immediately available funds to an account designated by
Licensor; and (b) an aggregate of Five Hundred Thousand Dollars ($500,000) in
installments that each equal twenty percent (20%) of Licensee’s existing cash
balance effective as of the last day of each calendar month, to be paid on or
before the tenth (10th) day
of each calendar month for the preceding calendar month, as applicable, until
such payment is made in full.
3.2 Monthly Royalty Payments
From Net Local Advertising Revenue.
(a) In
addition to the Initial License Fee, Licensee agrees to pay to Licensor
twenty-five percent (25%) of Licensee’s Net Local Advertising Revenue (“Licensee Royalty
Payments”). Licensee shall determine its Net Local Advertising
Revenue on a monthly basis, with all Licensee Royalty Payments to be made by
Licensee to Licensor on or before the tenth (10th) day
of each calendar month for the preceding calendar month. “Net Local Advertising Revenue”
shall mean Licensee’s gross advertising revenues derived from its Exploitation
of the Intellectual Property Rights and/or the Products on a local scale, less
commissions equal to fifteen percent (15%) of such gross advertising revenues
payable to members in the Territory that assisted Licensee in generating such
revenues.
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(b) Licensor,
or its duly authorized representative, shall be entitled, at its own expense and
during normal business hours, to conduct an audit of Licensee’s books and
records related to Licensee’s Net Local Advertising Revenue to verify the amount
due to Licensor for each such month. Any such audit shall be
commenced within thirty (30) days following Licensor’s receipt of the Licensee
Royalty Payment for the applicable calendar month, or such audit right shall be
deemed waived.
3.3 Monthly Royalty Payments
From Gross National Advertising Revenue.
(a) In
consideration for Licensee’s efforts in Exploiting the Intellectual Property
Rights and/or the Products, Licensor agrees to pay to Licensee twenty-five
percent (25%) of Licensor’s Gross National Advertising Revenue (“Licensor Royalty
Payments”). Licensor shall determine its Gross National
Advertising Revenue on a monthly basis, with all Licensor Royalty Payments to be
made by Licensor to Licensee on or before the tenth (10th) day
of each calendar month for the preceding calendar month. “Gross National Advertising
Revenue” shall mean any and all gross advertising revenues
derived from Licensor’s global business operations and/or Licensee’s
Exploitation of the Intellectual Property Rights and/or Products on a national
scale within the Territory, which amounts shall be received directly and
determined by Licensor.
(b) Licensee,
or its duly authorized representative, shall be entitled, at its own expense and
during normal business hours, to conduct an audit of Licensor’s books and
records related to Licensor’s Gross National Advertising Revenue to verify the
amount due to Licensee for each such month. Any such audit shall be
commenced within thirty (30) days following Licensee’s receipt of the Licensor
Royalty Payment for the applicable calendar month, or such audit right shall be
deemed waived.
3.4 Taxes. Licensee
shall be responsible for the payment of any federal, state, local or withholding
taxes, which may apply to the transactions contemplated by this Agreement;
provided, however, Licensor shall be responsible for the payment of any such
taxes in connection with Licensor Royalty Payments. Under no
circumstances will Licensee be responsible for any franchise-related taxes or
taxes based on Licensor’s gross or net income.
ARTICLE
4
SUPPORT
SERVICES
4.1 Support
Services. Promptly following the Effective Date and throughout
the term of this Agreement, in addition to the Site Services, Licensor agrees to
provide to Licensee certain support services necessary and/or useful for
Licensee’s Exploitation of the Intellectual Property Rights and/or the Products
and the maximization of its Net Local Advertising Revenue (collectively, the
“Support Services,”
together with the Site Services, the “Services”). Except
as otherwise expressly set forth herein, Licensor solely shall be responsible
for all methods, means, techniques, sequences and procedures and for
coordinating all portions of the Support Services. Any change in the
scope of the Support Services shall be made only in writing executed by
authorized representatives of both Parties. The applicable terms and
conditions of this Agreement will apply to any and all additional support
services agreed to by the Parties. The Support Services will include
the following:
(a) Licensor
will be solely responsible for creating and maintaining applicable terms and
conditions and other features that enable potential advertisers to efficiently
register and purchase advertising (the “Advertising
Procedures”).
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(b) Licensor
will create and maintain a secure, online payment account to directly receive
Gross National Advertising Revenue from advertisers that register for and
purchase national advertising. Licensor will pay to Licensee the
Licensor Royalty Payments from such account, pursuant to Section
3.3(a).
(c) Licensor
will be solely responsible for tracking registered advertisers and all
advertising revenue that corresponds to each advertiser. Licensor
further shall collect any and all sales tax attributed to Gross National
Advertising Revenue.
(d) Licensor
shall determine members’ advertising revenue share and make any and all
distributions of such advertising revenue to members, pursuant to its
Revenue-Sharing Model.
(e) Licensor
shall be solely responsible for issuing any and all 1099 tax forms to members
within the Territory that received distributions from Licensor pursuant to the
Revenue-Sharing Model
(f) Licensor
will consult with Licensee and will consider Licensee’s input on an ongoing
basis (i) regarding the Support Services described in Subsections (a) through
(e); and (ii) to further create, develop and/or improve, as applicable, the
Database, the Revenue-Sharing Model and the future business enterprises
model.
4.2 Licensee’s
Obligations. During the term of this Agreement, Licensee’s
obligations in connection with the Database, the Revenue-Sharing Model and
related matters will include the following:
(a) Licensee
shall be solely responsible for collecting any and all sales tax attributed to
Gross Local Advertising Revenue.
(b) Licensee
shall be solely responsible for issuing any and all 1099 tax forms to members
within the Territory that received commissions from Licensee pursuant to the
member commission program.
(c) Licensee
will create and maintain a secure, online payment account to directly receive
Gross Local Advertising Revenue from advertisers that register for and purchase
local advertising. Licensee will pay to Licensor the Licensee Royalty
Payments from such account, pursuant to Section 3.2(a).
(d) Licensee
will consult with Licensor and will consider Licensor’s input on an ongoing
basis (i) regarding Licensee’s obligations described in Subsections (a) through
(c); and (ii) to further create, develop and/or improve, as applicable, the
Database, the Revenue-Sharing Model and the future business enterprises
model.
ARTICLE
5
COMPLIANCE
WITH LAWS
5.1 Compliance.
(a) Licensor
will perform the Services in conformance with applicable federal, state and
local laws, regulations and rules.
(b) Licensee
will Exploit the Intellectual Property Rights and/or the Products in conformance
with (i) applicable federal, state and local laws, regulations and rules; and
(b) standard operating guidelines established by Licensor and conveyed to and
agreed upon by Licensee.
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5.2 No False or Misleading
Statements. Without limiting the generality of the other
provisions of this Article 5, each Party agrees not to make any false or
misleading statements to or concerning the other Party, including, but not
limited to, the other Party’s performance and commitments, or engage in any
illegal, deceptive, unethical or improper acts in connection with performing its
obligations hereunder.
ARTICLE
6
CONFIDENTIAL
INFORMATION; NON-DISCLOSURE
6.1 Confidential
Information. Each Party may provide to the other certain of
its confidential, proprietary and trade secret business or technical information
in connection with this Agreement (collectively, "Confidential
Information"). Confidential Information includes, but is not
limited to, technical data, know-how, information relating to research,
products, software, services, development, inventions, processes, engineering,
marketing, techniques, clients and their customers, pricing, internal
procedures, business and marketing plans or strategies, finances, employees and
business opportunities disclosed by a Party to the receiving Party, either
directly or indirectly, in any form whatsoever (including, but not limited to,
in writing, in machine readable or other tangible form, orally or visually): (a)
that is a trade secret under applicable law; (b) that has been marked as
"confidential" or "proprietary" or similar legend; (c) whose confidential nature
has been made known by the disclosing Party, orally or in writing, to the
receiving Party; (d) that due to its character and nature, a reasonable person
under like circumstances would treat as confidential; or (e) discussions
relating to such information whether these discussions occur prior to,
concurrent with, or following disclosure of such information. The
receiving Party will preserve the confidentiality of all Confidential
Information that is provided by the disclosing Party or obtained by the
receiving Party in connection with the Agreement, and shall not, without the
prior written consent of the disclosing Party, disclose or make available to any
person, or use for its own or any other person's benefit, other than as
necessary in connection with this Agreement, any Confidential Information of the
disclosing Party. The receiving Party shall exercise a commercially
reasonable level of care to safeguard Confidential Information of the other
Party against improper disclosure or use, commensurate with the sensitivity of
such information. All Confidential Information and the results
derived in any way from Confidential Information will at all times remain the
sole property of the disclosing Party.
6.2 Exclusions. Information
will not be considered Confidential Information if it is: (a) already available
to the public other than by a breach of this Agreement; (b) rightfully received
from a third party not in breach of any obligation of confidentiality; (c)
independently developed by personnel or agents of one Party without access to
the Confidential Information of the other; or (d) proven to be already known to
the recipient at the time of disclosure.
6.3 Non-Disclosure. The
receiving Party will not disclose any Confidential Information without the
disclosing Party’s prior written consent, unless such action: (a) is required by
law or regulation, but only to the extent and for the purposes of such law or
regulation; (b) is in response to a valid order of a court or other governmental
body but only to the extent of and for the purposes of such order, and only if
the receiving Party first notifies the disclosing Party of the order and permits
the disclosing Party to seek an appropriate protective order; or (c) is with
written permission of the disclosing Party, in compliance with any terms or
conditions set by the disclosing Party regarding such disclosure.
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6.4 Return. Upon
termination or expiration of this Agreement for any reason, each Party shall
return to the other Party all Confidential Information of the other Party. The
obligations in this Article 6 will survive any termination of this
Agreement.
ARTICLE
7
INTELLECTUAL
PROPERTY RIGHTS
7.1 Title. The
Parties hereby acknowledge and agree that Licensor owns any and all right, title
and interest in and to the Intellectual Property Rights and the Products,
subject only to the license granted to Licensee under this Agreement, and
Licensor shall be solely responsible for the Site, the Content and complying
with all applicable laws in providing the Services.
7.2 Ownership of Pre-Existing
Intellectual Property Rights. The Parties hereby acknowledge
and agree that any Intellectual Property Rights owned by Licensor prior to the
Effective Date shall remain owned by Licensor following the Effective
Date.
7.3 Ownership of Future
Intellectual Property Rights. The Parties hereby acknowledge
and agree that all right, title and interest in and to any and all intellectual
property rights that arise after the Effective Date and are related to the
Products shall be owned by Licensor, regardless of which Party creates,
discovers or invents the same, and shall constitute “Intellectual Property
Rights” subject to the license rights granted to Licensee
hereunder.
7.4 Disclosure of Additional
Intellectual Property. The Parties acknowledge and agree that
Licensor shall provide to Licensee written reports summarizing, among other
things, improvements, enhancements, modifications, discoveries, inventions and
additions to the Intellectual Property Rights and/or the
Products. Such additional intellectual property shall be subject to
the license grants set forth herein at no additional cost to
Licensee.
7.5 Unauthorized Use;
Infringement. If, at any time after during the term of this
Agreement, Licensee becomes aware of any unauthorized use, or suspected
unauthorized use, of any aspect of the Intellectual Property Rights and/or the
Products, Licensee shall promptly notify Licensor in writing.
7.6 Prosecution of Intellectual
Property Rights. Licensor shall have the sole right, at its cost and
expense, to obtain, prosecute and maintain throughout the world the Intellectual
Property Rights, as applicable. Licensee shall cooperate fully with
Licensor in the preparation, filing, prosecution, enforcement and maintenance of
the Intellectual Property Rights, as applicable, throughout the
Territory. Such cooperation includes (a) promptly executing all
papers and instruments and requiring employees to execute such papers and
instruments as reasonable and appropriate so as to enable Licensor to file,
prosecute, enforce and maintain its Intellectual Property Rights in the
Territory; (b) promptly informing Licensor in reasonable detail of any
improvements or modifications of Licensee; and (c) promptly informing Licensor
of any matters of which Licensee may be aware that may affect the preparation,
filing, prosecution or maintenance of any Intellectual Property Rights in the
Territory. Licensee agrees that it will not take any action that
jeopardizes Licensor’s intellectual property rights or acquire any rights, other
than as set forth herein, in the Intellectual Property Rights and/or the
Products.
7.7 Further Assurances;
Cooperation. Each Party further agrees to execute, acknowledge
and deliver to the requesting Party such other instruments of conveyance and
transfer and will take such other actions and execute, acknowledge and deliver
such other documents, certifications and further assurances as the requesting
Party may reasonably require in order to: (a) vest more effectively in the
requesting Party any rights transferred hereby, including but not limited to,
obtaining registration or regulatory approval of any rights granted hereunder or
derivative works thereof; or (b) better enable the requesting Party to exercise
the rights acquired by such Party hereunder. Each of the
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Parties
hereto will cooperate with the other and execute and deliver to the other Party
such other instruments and documents and take such other actions as may be
reasonably requested from time to time by any other Party as necessary to carry
out, evidence and confirm the intended purposes of this
Agreement. Licensor will not take any action that jeopardizes
Licensee’s rights granted hereunder. Licensor further will not assert
any rights it now holds or may later acquire against Licensee, and shall be
deemed to have waived the right to assert any claim, for any alleged
infringement in connection with Licensee’s development or Exploitation of the
Intellectual Property Rights and/or the Products.
7.8 Non-Circumvention. Licensor
shall not at any time following the Effective Date attempt in any manner to
circumvent or adversely affect, whether directly or indirectly, Licensee as it
relates to Licensee’s Exploitation of the Intellectual Property Rights and/or
the Products in the Territory.
ARTICLE
8
REPRESENTATIONS
AND WARRANTIES
8.1 Licensor’s Representations
and Warranties. Licensor
hereby represents and warrants to Licensee, as of the Effective Date, as
follows:
(a) Licensor
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada.
(b) The
execution, delivery and performance of this Agreement by Licensor and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action.
(c) This
Agreement is a legally valid and binding obligation of Licensor, enforceable in
accordance with its respective terms.
(d) There are
not any orders, judgments, injunctions or directives of any court or any
government agency that would restrain, limit or otherwise interfere with
Licensor’s performance of the Services or any of its obligations
hereunder.
(e) Licensor
further represents and warrants to Licensee that: (i) Licensor is the lawful
owner of the Intellectual Property Rights and the Products, free and clear of
all liens, claims, security interests, charges and encumbrances of any kind, and
has the full legal right to grant to Licensee the license as set forth herein
and in accordance with this Agreement; (ii) there are no claims, litigation or
proceedings pending or threatened against Licensor with respect to the
Intellectual Property Rights and/or the Products, or any component thereof,
alleging infringement of any person’s or entity’s intellectual property rights
(including interference, cancellation or other protest); (iii) there are no
claims, litigation or proceedings pending or threatened alleging infringement of
any intellectual property rights of any person or entity that could impact
Licensor’s ability to grant the license as set forth herein; (iv) Licensor has
no knowledge of any misrepresentations, omissions or other inequitable conduct
that may have an adverse effect on the Intellectual Property Rights and/or the
Products; and (v) to Licensor’s knowledge, neither the performance of the
Services or any of its obligations hereunder, nor the furnishing or Exploitation
of the Intellectual Property Rights and/or the Products, will in any way
infringe or otherwise violate any intellectual property rights, non-disclosure
agreement, or other rights of any third party.
(f) Licensor
has no knowledge of any intellectual property rights other than its Intellectual
Property Rights that may be necessary or useful to Exploit the
Products.
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(g) Licensor
has not filed any patent applications or been issued any patents in connection
with the Intellectual Property Rights and/or the Products. Licensor
reserves its right to obtain a patent(s) with respect to the Intellectual
Property Rights and/or the Products.
8.2 Licensee’s Representations
and Warranties. Licensee hereby represents and warrants to
Licensor, as of the Effective Date, as follows:
(a) Licensee
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada.
(b) The
execution, delivery and performance of this Agreement by Licensee and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action.
(c) This
Agreement is a legally valid and binding obligation of Licensee, enforceable in
accordance with its respective terms.
(d) There are
not any orders, judgments, injunctions or directives of any court or any
government agency that would restrain, limit or otherwise interfere with
Licensee’s performance of its obligations hereunder.
(e) The
consummation of the transactions contemplated hereunder will not alter, impair
or modify any of Licensor’s rights in the Intellectual Property Rights and/or
the Products, except to the extent provided for in this Agreement.
ARTICLE
9
INDEMNIFICATION
9.1 Indemnification by
Licensor. Licensor hereby agrees that it shall be responsible
for, indemnify, hold harmless and defend Licensee, its affiliates and their
respective directors, officers, employees, consultants, licensees, agents,
representatives and other persons acting under Licensee’s authority, and their
respective heirs, successors and assigns (collectively, “Licensee Indemnitees”), from
and against any and all damages suffered or incurred by any Licensee Indemnitees
arising out of, relating to, resulting from or in connection with any third
party claims arising out of or relating to:
(a) The
breach of any representation or warranty by Licensor herein.
(b) The
default by Licensor in the performance or observance of any of its obligations
to be performed or observed hereunder.
(c) Any
complaint alleging facts inconsistent with Licensor’s representation and
warranty set forth in Section 8.1(d)(i).
9.2 Indemnification by
Licensee. Licensee hereby agrees that it shall be responsible
for, indemnify, hold harmless and defend Licensor, its affiliates and their
respective directors, officers, employees, consultants, licensees, agents,
representatives and other persons acting under Licensor’s authority, and their
respective heirs, successors and assigns (collectively, “Licensor Indemnitees”), from
and against any and all damages suffered or incurred by any Licensor Indemnitees
arising out of, relating to, resulting from or in connection with any third
party claims arising out of or relating to:
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(a) The
breach of any representation or warranty by Licensee herein.
(b) The
default by Licensee in the performance or observance of any of its obligations
to be performed or observed hereunder.
(c) The
Exploitation by Licensee of the Intellectual Property Rights and/or the
Products; provided, however, that Licensor is named as a party in such
applicable lawsuit and such lawsuit is does not result from a breach of any
representation or warranty by Licensor.
ARTICLE
10
DISPUTE
RESOLUTION
10.1 Negotiation. Prior
to engaging in any formal dispute resolution with respect to any dispute,
controversy or claim arising out of or in relation to this Agreement or the
breach, termination or invalidity of this Agreement, an executive officer of
each Party shall attempt to resolve such dispute for a period of not less than
thirty (30) days.
10.2 Arbitration. Failing
an amicable settlement pursuant to Section 10.1, any dispute will finally be
settled by binding arbitration before a single arbitrator (the “Arbitrator”) who will be
jointly appointed by the Parties. The Arbitrator shall self-administer the
arbitration proceedings utilizing the Commercial Rules of the American
Arbitration Association (the “Association”); provided,
however, the Association shall not be involved in administration of the
arbitration. The Arbitrator must be a retired judge of a state or
federal court of the United States or a licensed lawyer with at least ten (10)
years of corporate or commercial law experience from a law firm with at least
ten (10) attorneys and at least an AV rating by Martindale
Xxxxxxx. If the Parties cannot agree on an Arbitrator, either Party
may request a state or federal court in Las Vegas, Nevada to appoint an
Arbitrator which appointment will be final.
The
arbitration will be held in Las Vegas, Nevada. Each Party will have
discovery rights as provided by the United States Federal Rules of Civil
Procedure within the limits imposed by the Arbitrator; provided, however, that
all such discovery will be commenced and concluded within sixty (60) days of the
selection of the Arbitrator. It is the intent of the Parties that any
arbitration will be concluded as quickly as reasonably
practicable. Once commenced, the hearing on the disputed matters will
be held four (4) days a week until concluded, with each hearing date to begin at
9:00 a.m. and to conclude at 5:00 p.m. The Arbitrator will use all
reasonable efforts to issue the final written report containing award or awards
within a period of five (5) business days after closure of the
proceedings. Failure of the Arbitrator to meet the time limits of
this Section 10.2 will not be a basis for challenging the award. The
Arbitrator will not have the authority to award punitive damages to either
Party. Each Party will bear its own expenses, but the Parties will
share equally the expenses of the Arbitrator. The Arbitrator shall
award attorneys’ fees and other related costs payable by the losing Party to the
successful Party as it deems equitable. This Agreement will be
enforceable, and any arbitration award will be final and non-appealable, and
judgment thereon may be entered in any court of competent
jurisdiction. Notwithstanding the foregoing, claims for injunctive
relief may be brought in a state or federal court in Las Vegas,
Nevada.
10
ARTICLE
11
TERM;
TERMINATION
11.1 Term. This
Agreement shall remain in full force and effect for a period of ten (10) years
commencing on the Effective Date and continuing thereafter and shall be
automatically renewed for additional ten (10) year periods, unless earlier
terminated during the then-current term pursuant to Section 11.2
below. Upon the effective date of each renewal term, as applicable,
Licensee shall be required to pay to Licensor the Initial License Fee, as
adjusted for interim changes in the Consumer Price Index as determined by the
United States Department of Labor for such applicable period.
11.2 Termination. This
Agreement may be terminated by (a) the non-breaching Party as a result of a
material breach of this Agreement by the other Party, but only after the
breaching Party is given written notice of the non-breaching Party’s intent to
terminate and the breaching Party fails to cure such breach within thirty (30)
days of such notice; (b) by either Party if the other Party ceases to actively
conduct its business, files a voluntary petition for bankruptcy or has filed
against it an involuntary petition for bankruptcy, becomes unable to pay its
debts as they become due, makes a general assignment for the benefit of its
creditors, or applies for the appointment of a receiver or trustee for
substantially all of its property or assets or permits the appointment of any
such receiver or trustee who is not discharged within thirty (30) days of such
appointment; or (c) upon written agreement by the Parties.
11.3 Effect of
Termination. Upon the effective date of termination of this
Agreement, and in addition to the requirements set forth in Section 6.4,
Licensor shall cease providing the Services and Licensee shall immediately cease
Exploiting the Intellectual Property Rights and/or the Products, except as may
be specifically approved in writing by the Parties. Upon termination,
this Agreement will continue to govern the Parties’ rights and obligations with
respect to the Services provided by Licensor and the Exploitation of the
Intellectual Property Rights and/or the Products by Licensee prior to
termination.
ARTICLE
12
LIMITATION
OF LIABILITY
EXCEPT
FOR ANY DAMAGES ARISING PURSUANT TO ARTICLE 8 (REPRESENTATIONS AND WARRANTIES),
NO PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF OR RELATED TO THIS
AGREEMENT, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES
AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
ARTICLE
13
MISCELLANEOUS
13.1 Notices. All
notices or other communications required or permitted to be given under this
Agreement shall be in writing and addressed to the other Party as follows and
shall be deemed effectively given on the earliest of: (a) when
delivered, if personally delivered; (b) on the third (3rd) business day
following the date of mailing if delivered by certified or registered mail,
return receipt requested; (c) on the date of transmission, if delivered by
facsimile or email transmission; or (d) when received by the Party to whom
notice is intended or required to be given.
11
|
|
If
to Licensee:
|
ZZPARTNERS,
INC.
|
|
|
000
Xxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxx
Xxxx Xxxxx, XX 00000
|
|
|
Attn: Xxxxx
Xxxxxxxxx, Chief
Financial Officer
|
Facsimile: 000-000-0000
Email: xxxxxxxxxx@xxx.xxx
|
|
with
a copy to:
|
Xxxxxx
Xxxxxxx Xxxxxx & Brand, LLP
|
|
|
00
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
|
Attn: Xxxxxxx
X. Xxxxx, Esq.
|
|
|
Facsimile: (000)
000-0000
|
|
|
Email: xxxx.xxxxx@xxxxxx.xxx
|
|
|
If
to Licensor:
|
ZENZUU,
INC.
|
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
|
|
Attn: Xxxxx
Xxxxxxxx
|
|
|
Facsimile:
000-000-0000
|
|
|
Email: xxxxxxx@xxxxx.xxx
|
13.2 Force
Majeure. In no event will either Party be liable to the other
for any delay or other failure to perform under this Agreement that is solely
caused by the other Party, acts of God, acts of the public enemy, floods, fires,
wars and is not a result of such non-performing Party’s
negligence. Such a condition shall not be grounds for termination, as
long as the non-performing Party takes reasonable steps to remedy the problem
causing such non-performance, as applicable.
13.3 Relationship. The
performance of each Party hereunder is undertaken as an independent contractor
and not as an agent or partner of the other Party. Neither Party
shall enter into or incur, or hold itself out to third parties as having
authority to enter into or incur on behalf of the other Party, any contractual
obligation, expense, or liability whatsoever.
13.4 Nomination of Board of
Directors. Noteholders holding certain convertible promissory
notes (collectively, the “Notes”) that are issued
pursuant to the terms of that certain Confidential Offering Memorandum of the
Company dated May 14, 2008 shall have the right to appoint fifty percent (50%)
of the directors to serve on Licensee’s Board of Directors until such Notes are
satisfied, either through conversion or redemption. Upon any such
conversion or redemption of the Notes, Licensor shall have the right to nominate
a majority of its Board of Directors.
13.5 Advertising and Promotional
Materials. Licensee shall provide to Licensor samples of any
and all advertising and promotional materials that refer or relate to the
Products (the “Promotional
Materials”) prior to Licensee’s distribution of such Promotional
Materials. If Licensor fails to affirmatively disapprove of the
Promotional Materials within five (5) business days of Licensor’s receipt of
Licensee’s submission, the right of which shall be in Licensor’s sole
discretion, Licensor will be deemed to have approved such Promotional Materials
in the form as submitted and Licensee will be permitted to use such Promotional
Materials. Upon Licensor’s reasonable request from time to time
during the term of this Agreement, Licensee will provide to Licensor samples of
then-current Promotional Materials that Licensee is utilizing in connection with
its efforts to Exploit the Intellectual Property Rights and/or the
Products.
12
13.6 Assignment. This
Agreement, and all applicable rights and obligations hereunder, are personal to
Licensee and shall not, without Licensor’s prior written approval (which may be
withheld in Licensor’s sole discretion), be assigned, sublicensed, mortgaged or
otherwise encumbered by Licensee, except that Licensee may freely assign any of
its rights or obligations hereunder (a) to a wholly-owned subsidiary of
Licensee; provided, however, in such instance, Licensee shall remain fully
liable for all obligations imposed on Licensee under this Agreement; or (b)
pursuant to a merger or other business combination. Any attempt by
Licensee to grant a sublicense or to assign, mortgage or encumber the Agreement,
other than as contemplated by this Section 13.6, shall be void and constitute a
material breach of this Agreement. This Agreement and any and all
rights and obligations of Licensor may be assigned by Licensor without the prior
written consent of Licensee; provided, however, no such assignment shall release
Licensor from its obligations hereunder.
13.7 Governing
Law. This
Agreement shall be interpreted and construed, and the legal relationships
created hereby shall be construed in accordance with the laws of the State of
Nevada, without regard to its conflicts-of-law principles.
13.8 Successors. This
Agreement shall be binding upon and inure to the benefit of the successors or
permitted assigns of a Party hereto.
13.9 No Third-Party
Beneficiaries. The
Parties intend that this Agreement will not benefit or create any right or cause
of action in or on behalf of any person or entity other than the
Parties.
13.10 Attorneys’
Fees. In
the event of any litigation, arbitration or other legal proceedings arising out
of or related to this Agreement, the prevailing Party shall be entitled to
reasonable attorneys’ fees and all costs of proceedings incurred in enforcing
this Agreement.
13.11 Modification and
Non-Waiver. No
modification of this Agreement and no waiver of any breach of this Agreement
will be effective unless in writing and signed by an authorized representative
of the Party against whom enforcement is sought. The failure of
either Party to insist upon the strict performance of any of the provisions of
this or the failure of either Party to exercise any right or remedy hereby
reserved shall not be construed as a waiver of any such provisions, rights or
remedies, or as a waiver of any subsequent breach thereof.
13.12 Interpretation. Article
and Section headings are provided for convenience only and are not to be used to
construe or interpret this Agreement. Whenever the words “include” or
“including” are uses in this Agreement, they will be deemed to be followed by
the words “without limitation.”
13.13 Severability. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid or unenforceable, such unenforceability or invalidity
shall not render this Agreement invalid as a whole and, in such event, such
provision shall, if possible, be changed and interpreted so as best to
accomplish the objective of such unenforceable or invalid
provision.
13.14 Entire
Understanding. This Agreement, including the Recitals and the
SLA and other exhibits to this Agreement that are incorporated by reference
herein, constitutes the exclusive and entire agreement between the Parties with
respect to the subject-matter hereto and as of the Effective Date supersedes all
prior or contemporaneous agreements, negotiations, representations and
proposals, written or oral, relating to its subject-matter. Neither
Party will be bound or liable to the other Party for any representation, promise
or inducement made by any agent or person in the other’s employ that is not
embodied in this Agreement.
13
13.15 Counterparts;
Facsimile. This Agreement may be executed in counterparts,
each of which shall be considered an original. This Agreement may be
executed by one or more of the parties by facsimile or email transmitted
signature and each party agrees that the reproduction of signatures by way of
telecopying device or by an email transmitted data file (e.g. .pdf file) will be
treated as though such reproductions were executed originals.
Signature
Page Follows
14
IN
WITNESS WHEREOF, the Parties have executed this Website Hosting and License
Agreement as of the Effective Date.
|
LICENSEE:
|
ZZPARTNERS,
INC,
a
Nevada corporation
By: /s/Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx, Chief
Financial Officer
|
|
LICENSOR:
|
ZENZUU,
INC.,
a
Nevada corporation
By:
/s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
|
15
EXHIBIT
A
Terms and
Conditions of Service Level Agreement
Introduction.
Licensor
and Licensee, as Parties to that certain Website Hosting and License Agreement
(the “Agreement”),
hereby acknowledge and agree that the following terms and conditions of this
Service Level Agreement (the “SLA”) shall be incorporated by
reference into the Agreement as of the Effective Date. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Agreement.
Period.
The
service levels set forth in this Exhibit
A shall be effective as of the Effective Date and shall continue
throughout the term of the Agreement.
Availability.
Licensor
will make the Site available, except during periods of Excused Downtime. “Excused Downtime” shall mean
times when the Site is not available solely as the result of the occurrence of
one or more of the following causes, and provided that Licensor is otherwise in
compliance with its obligations hereunder: (i) a security threat that
may cause significant damage to Licensor’s Equipment; (ii) the failure and
replacement of non-redundant Site components; (iii) force majeure events as
described in Section 13.2 of the Agreement; (iv) mutually agreed upon outages;
and (v) the negligence or willful misconduct of Licensee or any third
party.
The
maximum amount of time measured monthly that the Site may be unavailable will
not exceed one percent (1%) per month, excluding Excused Downtime. If
the unavailability exceeds one percent (1%) in any given month, Licensor will
pay to Licensee the applicable percentage of the applicable Licensee Royalty
Payments due Licensor for the month the unavailability occurred, as provided
below in Table
A (referred to herein as an “SLA
Credit”). Licensee shall be responsible for tracking
unavailability and determining applicable SLA Credits, as evidenced by the
system archives and applicable written records. SLA Credits will be
calculated at the end of each month and credited to Licensee within thirty (30)
days. In no case shall the total monthly SLA Credit exceed one
hundred percent (100%) of the applicable monthly Licensee Royalty Payment
payable to Licensor.
Table
A.
|
Availability
Percentage
|
SLA
Credit
|
|
100
- 99
|
0
|
|
98.99
- 97
|
10%
|
|
96.99
- 95
|
25%
|
|
94.99
- 93
|
50%
|
|
92.99
or less
|
100%
|
16
Business
Continuation.
Licensor
represents and warrants to Licensee that it has an industry-standard business
continuity plan and a disaster recovery plan (collectively, the “Plans”) to protect against any
disaster that would affect Licensor’s ability to provide the Services in
accordance with the terms of the Agreement. Licensor shall maintain
backup servers, equipment, software and telecommunications connections that
enable Licensor to provide Services on and from such backup servers promptly
following notice of any disruption of Services.
17
