LICENSE AND SERVICE AGREEMENT
THIS LICENSE AND SERVICE AGREEMENT ("Agreement") is dated effective
as of the 4th day of May, 1999, between AXIS TECHNOLOGIES CORP., a Texas
corporation ("Axis"), and HOUSTON INTERWEB DESIGN, INC., a Texas corporation
("Interweb").
WHEREAS, both Axis and Interweb are in the business of providing a
variety of Internet related services including, among other things, web site
design, storage, maintenance and Internet access to its customers;
WHEREAS, Interweb is the owner of a certain proprietary Internet
web site generating process (the "Application") that has the capability of
creating a multi-page, custom web site (the "SiteBlazer Web Site" or
"Product") and is the owner of the SiteBlazer trademark/servicemark (the
"Trademark"), which Interweb uses in connection with the sale of such web
sites to end user customers;
WHEREAS, Axis desires to engage Interweb to provide it with the
services as herein described and to acquire a nonexclusive license from
Interweb to use the Application and to distribute, market and sell the
Product to its existing and future customers located in the United States
("Territory"), under the Trademark; and
WHEREAS, Interweb is willing provide the services to Axis as
described herein and to grant a license to Axis subject to the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, Interweb and Axis hereby agree as follows:
SECTION 1. GRANT OF LICENSE BY INTERWEB TO AXIS
1.1 LICENSE. Interweb hereby grants to Axis a nonexclusive license to
(i) provide the Product to its existing customers within the Territory, (ii)
market and sell the Product within the Territory, and (iii) use the Trademark
in connection therewith, strictly limited to the license, rights, privileges,
and reservations set forth in this Agreement. Interweb reserves the right to
use, market, provide and sell the Application and SiteBlazer Web Sites, to
authorize or license other parties to use, market, provide and sell the
Application and SiteBlazer Web Sites, and to use, authorize or license other
parties to use the Trademark within and outside the Territory. No sublicense
by Axis is permitted and Axis may not authorize or license any other party to
use, market, provide or sell the Application, SiteBlazer Web Sites or the
Trademark within or outside the Territory without Interweb's prior written
consent.
1.2 USE OF TRADEMARK. Axis is authorized and licensed to use the
Trademark on and in connection with the use, distribution, market and sale of
the Product and on documents relating to or used in connection with the such
use, market, sale or distribution of the Product, and to display the
Trademark on Axis's stationery, advertising, promotional materials and other
documents used in connection with the use, distribution, market and sale of
the Product, in the form and manner in
which the Trademark presently is used by Interweb and in such other form and
manner as Interweb may in its discretion approve from time to time.
1.3 REGISTRATION OF TRADEMARK IN UNITED STATES. Interweb shall
exercise its commercially reasonable good faith efforts to cause the
Trademark to be and remain registered in the United States Patent and
Trademark Office.
1.4 STANDARDS. The Product shall be provided by Interweb to Axis in
strict accordance with the standards and procedures established and revised
by Interweb from time to time and communicated to Axis.
SECTION 2. SERVICES TO BE PROVIDED BY INTERWEB TO AXIS
2.1 SCOPE OF SERVICES. During the term of this Agreement, Interweb
shall devote such time as is necessary to diligently provide to Axis the
following services (the "Services"):
(a) convert the web sites of existing Axis customers as of the date of
this Agreement to SiteBlazer Web sites;
(b) host Axis's corporate web site, those certain customized web sites
of Axis customers, and all other web sites of Axis customers (web
sites of all Axis customers being "Axis Customer Web Sites"), be
they web sites designed by Axis or SiteBlazer Web Sites;
(c) register Axis Customer Web Sites with at least ten (10) major
Internet search engines; and
(d) those certain additional related services listed on the attached
Exhibit A.
SECTION 3. AXIS'S COVENANTS
3.1 AXIS'S BUSINESS OPERATIONS. Axis agrees that, in using the
Application, providing to its existing customers, and marketing, selling and
distributing the Product, it will comply in all material respects with all
applicable laws, regulations, and ordinances pertaining to the operation of
its business and the provision, sale and marketing of the Product. Axis will
comply with all instructions, formulae, standards, manufacturing and service
specifications, quality control criteria and procedures, and production and
service procedures in the marketing, sale and provision of the Product that
are from time to time prescribed by Interweb for the purpose of assuring
marketing, sale and provision of SiteBlazer Web Sites of uniform standards
and quality.
3.2 QUALITY CONTROL SAMPLING. At Interweb's request Axis shall comply
promptly with any quality control sampling and reporting procedures
prescribed by Interweb.
3.3 SALES PROMOTION AND ADVERTISING. Axis shall submit all sales
promotional and advertising materials not prepared by Interweb and depicting
the Trademark in writing to Interweb
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for its prior written approval.
3.4 BOOKS AND RECORDS. Axis shall maintain full and accurate books and
records showing those existing customers of Axis that were provided with the
Product, sales of the Product by Axis and of the recurring revenues generated
from such existing customers and sales, and shall furnish reports with
respect thereto as required by Interweb. Interweb's representatives shall be
permitted to inspect Axis's books, records and other information relating to
the use and sale of the Product at reasonable times during business hours.
3.5 CONFIDENTIALITY. It is understood and agreed that any Interweb
proprietary engineering, software, processes, techniques, know-how, survey
data, trade secrets and financial and other information (collectively,
"Interweb Information") that may from time to time be made available or
become known to Axis is to be treated as confidential, and shall not to be
used or disclosed by Axis except in the performance of Axis's duties under
the terms of this Agreement. Reasonable measures shall be taken to protect
the confidentiality of the Interweb Information and any memoranda or papers
containing trade secrets of Interweb that Axis may receive in connection
herewith are to be returned to Interweb upon request. Axis's obligations and
duties under this Section shall survive any termination of this Agreement.
3.6 INJUNCTIVE RELIEF. Interweb shall have the right to injunctive
relief to enforce the covenants hereinabove set forth, in addition to any
other relief to which it may be entitled at law or in equity.
SECTION 4. INTERWEB'S COVENANTS
4.1 THE PRODUCT. Interweb hereby represents and warrants to Axis that
it owns and has the unrestricted right to grant the license for the
Application and SiteBlazer Web Sites granted to Axis hereunder.
4.2 TRADEMARK.
(a) Interweb hereby represents and warrants to Axis that it owns
and has the unrestricted right to grant the license for the Trademark
granted to Axis hereunder.
(b) Interweb agrees that it will indemnify and hold harmless Axis
from and against any and all costs, losses, and liabilities, including
reasonable attorney's fees, arising out of or resulting from any claims
that the authorized use by Axis of the Trademark pursuant hereto, and any
and all other of Interweb's distinctive markings, designs, labels, or other
marks used by Axis pursuant to this Agreement infringe the trademarks of
another, and Interweb will defend any such trademark infringement claim,
suit, action, or proceeding by any person, entity, firm, or corporation
against Axis; provided, that prompt notice is given to Interweb of any such
trademark infringement claim, suit, action, or proceeding which Axis
expects that Interweb will be called upon to indemnify or defend Axis.
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(c) Subject to the foregoing, Axis acknowledges the validity of
and ownership by Interweb of the Trademark and in connection with the use
and sale of the Product agrees to take no action that would prejudice or
interfere with that validity or ownership. All use of the Trademark by
Axis under this Agreement shall inure to the exclusive benefit of Interweb
and Interweb's Trademark.
4.3 CONFIDENTIALITY. It is understood and agreed that any Axis
proprietary engineering, software, processes, techniques, know-how, survey
data, trade secrets and financial and other information (collectively, "Axis
Information") that may from time to time be made available or become known to
Interweb in connection with its provisions of the Services is to be treated
as confidential, and shall not to be used or disclosed by Interweb except as
reasonably necessary in connection with the performance of Interweb's duties
under the terms of this Agreement. Reasonable measures shall be taken to
protect the confidentiality of the Axis Information and any memoranda or
papers containing trade secrets of Axis that Interweb may receive in
connection herewith are to be returned to Axis upon request. Interweb's
obligations and duties under this Section shall survive any termination of
this Agreement.
4.4 INJUNCTIVE RELIEF. Axis shall have the right to injunctive relief
to enforce the covenants hereinabove set forth, in addition to any other
relief to which it may be entitled at law or in equity.
SECTION 5. COVENANTS OF BOTH PARTIES
5.1 FORCE MAJEURE. Neither Interweb nor Axis shall be held liable for
any failure to comply with any of the terms of this Agreement when that
failure is caused directly or indirectly by fire, strike, union or other
labor problems, declared or undeclared war, riots, insurrection, government
restrictions or other acts, or other causes beyond the control of or without
fault on the part of either of them; provided, however, that Axis shall
continue to be obligated to pay to Interweb any and all amounts that it shall
have duly become obligated to pay in accordance with the terms of this
Agreement prior to the occurrence of an event of the type referred to herein.
Upon the occurrence of any event of the type referred to herein, the party
affected thereby shall give prompt notice thereof to the other party,
together with a description of the event and the duration for which the party
expects its ability to comply with the provisions of this Agreement to be
affected thereby. The party affected shall thereafter devote its best
efforts to remedy to the extent possible the condition giving rise to that
event and to resume performance of its obligations hereunder as promptly as
possible.
5.2 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to
constitute Axis and Interweb as partners, joint venturers, or otherwise
associated in or with the business of the other, except as specifically
provided herein. Interweb is and shall always remain an independent
contractor, and neither party shall be liable for any debts, accounts,
obligations, or other liabilities of the other party, its agents, or
employees. Neither party is authorized to incur debts or other obligations
of any kind on the part of or as agent for the other except as may be
specifically
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authorized in writing. It is expressly recognized that no fiduciary
relationship exists between the parties.
5.3 CORPORATE AUTHORITY. Both Interweb and Axis have full power and
legal authority to execute and perform their respective obligations under
this Agreement. This Agreement is a legal, valid and binding obligation of
Interweb and Axis, enforceable in accordance with its terms (except that
enforcement may be subject to any applicable bankruptcy, insolvency or
similar laws generally affecting the enforcement of creditors' rights).
SECTION 6. TERM, CONDITION PRECEDENT AND TERMINATION
6.1 TERM. The license of the Application, Product and Trademark
granted hereunder and the term of the Services to be provided by Interweb to
Axis shall commence on the later of (i) the date hereof, or (ii) the date the
condition precedent set forth in Section 6.2 is met and continue indefinitely
until terminated in accordance with the provisions hereof.
6.2 CONDITION PRECEDENT. Inteweb shall enter into separate employment
arrangements with each of Xxxxxxx Xxxxx and Xxxx Xxxx, the terms of which
respective arrangements are acceptable to Interweb and the employee entering
into same.
6.3 TERMINATION UPON MUTUAL CONSENT. This Agreement may be terminated
at any time upon the mutual written consent of Interweb and Axis.
6.4 TERMINATION WITHOUT NOTICE. This Agreement and any and all rights
of Axis and Interweb hereunder and any and all obligations of Axis and
Interweb hereunder shall immediately terminate, without the requirement of
any notice, in the event Axis sells, transfers and assigns to Interweb all of
its web site customers and such termination shall be effective as of the
closing of such transaction;
6.5 TERMINATION FOR CAUSE. Either party may terminate this Agreement
for Cause, by providing the non-terminating party 45 days prior written
notice thereof (the 45th days following the date of receipt of such notice by
the non-terminating party as provided in Section 10.2 being the "For-Cause
Termination Date"). For purposes of this Agreement, "Cause" means any
material breach of any covenant contained in this Agreement. In the event
this Agreement is terminated for Cause, such termination shall be without
prejudice to any rights or obligations of the parties accruing prior to such
termination and shall not limit the parties in any way from asserting any and
all available remedies which the parties may have against one another;
provided, however, that if this Agreement is terminated for Cause, the
license granted to Axis by Interweb as provided in Section 1 herein shall
continue for a period of 180 days following the For-Cause Termination Date
(the "License Extension Period") and Axis's obligation to Interweb during the
License Extension Period shall only be to pay to Interweb the commission as
provided in Section 7.1.
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6.6 UPON TERMINATION.
(a) Upon the termination of this Agreement, except as otherwise
provided herein, the license and all rights and privileges granted
to Axis under this Agreement shall immediately cease and terminate
and Axis in the absence of a renewal or replacement agreement shall
thereupon immediately discontinue forever (a) the use of the
Application, (b) the provision, sale and marketing of the Product,
and (c) the use of the Trademark in connection therewith or for any
other use.
(b) Upon termination of this Agreement, except as otherwise provided
herein, Axis shall have no further obligation to Interweb with
respect to the payment of monies under this Agreement other than
paying Interweb any commissions (as hereinafter defined) actually
accrued and payable pursuant to the provisions of Section 7 hereof,
less any amounts owing by Interweb to Axis, as of the close of
business on the day prior to the termination date. The provisions
of this Agreement concerning confidentiality shall survive
termination of this Agreement.
6.7 RETURN OF INFORMATION. Upon the termination of this Agreement
without execution of a renewal or replacement agreement by the parties
hereto, at either party's request the nonrequesting party shall immediately
return to the requesting party all information, survey data, software
products, documents, materials, advertising and promotional material, all
copies (documentary, magnetic, tape, electronic or otherwise) and any and all
other documents, materials, information, technology, techniques and know-how
of the requesting party that is in the possession of the nonrequesting party.
SECTION 7. COMMISSIONS AND FEES.
7.1 COMMISSION FOR LICENSE AND SERVICES. The consideration payable to
Interweb by Axis in exchange for the license granted to Axis and the
provision of the Services by Interweb to Axis as provided herein is set forth
on the attached Exhibit B.
7.2 EXPENSES. Unless otherwise stated herein to the contrary, Interweb
shall bear all expenses in connection with its performance of the Services
and in conducting its business, without reimbursement from Axis.
SECTION 8. INDEMNITY
8.1 INDEMNIFICATION OF INTERWEB. Axis shall indemnify and hold
Interweb and its shareholders, officers, directors, employees, agents and
representatives harmless from any and all liability, claim, damage (whether
actual, consequential, punitive, statutory or otherwise), loss, assessment,
right of contribution or indemnity, proceedings, suits, actions, causes of
action, cost or expense (including, without limitation, costs and expenses
incurred in investigating, preparing, defending against, prosecuting or
settling any claim, action, suit, proceeding or demand), whether arising in
tort, in contract, by statute or otherwise, interest or penalty directly or
indirectly
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attributable to or arising out of (i) the actions of Axis's employees or
independent contractors, (ii) the inaccuracy of any of the representations or
warranties of Axis set forth in this Agreement, (iii) the breach of any
covenants of Axis set forth in this Agreement, and (iv) any federal, state or
local tax liabilities, assessments or obligations of Axis. No right or
remedy herein conferred upon or reserved to Interweb is intended to be
exclusive of any other right or remedy available at law or in equity, and all
such rights and remedies shall be cumulative.
8.2 INDEMNIFICATION OF AXIS. Interweb shall indemnify and hold Axis
and its shareholders, officers, directors, employees, agents and
representatives harmless from any and all liability, claim, damage (whether
actual, consequential, punitive, statutory or otherwise), loss, assessment,
right of contribution or indemnity, proceedings, suits, actions, causes of
action, cost or expense (including, without limitation, costs and expenses
incurred in investigating, preparing, defending against, prosecuting or
settling any claim, action, suit, proceeding or demand), whether arising in
tort, in contract, by statute or otherwise, interest or penalty directly or
indirectly attributable to or arising out of (i) the actions of Interweb's
employees or independent contractors, (ii) the inaccuracy of any of the
representations or warranties of Interweb set forth in this Agreement, (iii)
the breach of any covenants of Interweb set forth in this Agreement, and (iv)
any federal, state or local tax liabilities, assessments or obligations of
Interweb. No right or remedy herein conferred upon or reserved to Axis is
intended to be exclusive of any other right or remedy available at law or in
equity, and all such rights and remedies shall be cumulative. Axis may
offset, by notice to Interweb, any amount due from Interweb pursuant to the
indemnification provisions of this Agreement against any payment due to
Interweb under this Agreement.
SECTION 9. MEDIATION
9.1 MEDIATION PROCEDURE. In the event of any dispute arising from or
in any manner connected with this Agreement the parties will first endeavor,
in good faith, to promptly resolve the dispute through informal negotiation.
If the parties are unable to resolve such dispute within a 45 day period (or
within such extended period of time as the parties shall agree upon in
writing), the parties will then submit the matters to mediation to be
conducted in Houston, Texas and will have 5 business days from the end of
such 45 day (or longer if jointly extended) period to submit to each other a
written list of acceptable qualified mediators not affiliated with any of the
parties. Within 10 days from the date of receipt of such list, the parties
shall attempt to agree on a mediator. If no mediator has been selected under
this procedure, the parties agree jointly to request a State or Federal
District Judge of their choosing in Houston, Texas (or if they cannot agree,
the Administrative Judge of Xxxxxx County, Texas) to supply a list of
potential qualified mediators. Within 5 business days of receipt of the
list, the parties shall rank the proposed mediators in numerical order of
preference, shall simultaneously exchange such list and shall select as the
mediator the individual receiving the highest combined ranking. If such
mediator is not available to serve, they shall proceed to contact the
mediator who was next highest in ranking until they are able to select a
mediator. Mediation, as that term is used herein, means a forum in which the
mediator conducts a non-binding conference to facilitate communication
between the parties to promote a voluntary settlement of their dispute. The
parties agree to participate in the mediation procedure to its conclusion.
The mediation shall be terminated (i) by the execution of a settlement
agreement by
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the parties, (ii) by a declaration of the mediator that the mediation is
terminated, or (iii) by a written declaration of a party to the effect that
the mediation process is terminated at the conclusion of one full day's
mediation session. Even if the mediation is terminated without a resolution
of the dispute, the parties agree not to terminate negotiations and not to
commence any legal action or seek other remedies prior to the expiration of
five days following the mediation.
9.2 COSTS OF MEDIATION. All fees and costs of the mediation will be
assessed and paid, in the absence of the parties' agreement to the contrary,
equally by all parties.
9.3 STATUTE OF LIMITATIONS AND EQUITABLE RELIEF. Notwithstanding the
foregoing, any party may commence litigation prior to the expiration of any
applicable time period described above if litigation could be barred by an
applicable statute of limitations or in order to request any equitable
relief, including, without limitation, an injunction to prevent irreparable
harm.
SECTION 10. OTHER PROVISIONS
10.1 ENTIRE AGREEMENT. This Agreement contains the complete agreement
between the parties in respect of the subject matter hereof, and any and all
prior agreements relating to the subject matter hereof are superseded in
their entirety hereby. Except as specifically provided herein, this
Agreement may not be amended or supplemented, nor any of the provisions
hereof waived, except by an agreement in writing signed by the parties hereto
and dated after the date first above written.
10.2 NOTICE. All notices, requests, demands and other communications
under this Agreement or any instrument contemplated hereby shall be in
writing (except where this Agreement authorizes verbal notice, in which case
the party giving notice shall confirm such verbal notice in writing within a
reasonable time) and shall be personally delivered, sent by facsimile
transmission, or mailed by United States registered or certified mail, first
class, postage prepaid, return receipt requested, to the address of the
respective parties hereto as shown under their names on the signature page
hereof and shall be deemed given on the earlier of actual receipt (as
evidenced by return receipt if mailed) or the date three days after mailing.
Any party hereto may change its address for such notices by giving notice of
such change pursuant to this Section.
10.3 GOVERNING LAW. This Agreement shall be interpreted and governed by
the laws of the State of Texas.
10.4 ASSIGNMENT OR OTHER TRANSFER. The grant of the license hereunder
is unique to Axis, and may not be transferred, or in effect transferred, in
whole or in part, whether by independent agreement, acquisition by another
party of Axis's capital stock or assets, mortgage, pledge, lease or other
assignment as security, merger, consolidation or other reorganization, the
succession by another party to Axis's business by operation of law, as a
consequence of any transaction that results in a change in the ownership or
right of control of Axis, or otherwise, unless Interweb has expressly
consented in writing thereto. Interweb may transfer its right to receive the
monetary benefits of this Agreement subject to any rights of offset available
to Axis under this Agreement,
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but may not transfer any of its obligations owing to Axis hereunder without
the prior written consent of Axis.
10.5 WAIVER. The failure of either party to give notice of
nonperformance or termination shall not constitute a waiver of the covenants,
terms, or conditions herein, or of the rights of either party thereafter to
enforce those covenants, terms, or conditions or to terminate this Agreement
upon any subsequent occurrence.
10.6 SEVERABILITY. In the event any provision in this Agreement shall
be invalid, illegal or unenforceable, such provision shall be severable from
the rest of this Agreement and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10.7 OTHER REMEDIES. In addition to the right to terminate this
Agreement, Interweb and Axis shall have all other rights and remedies at law
and in equity, including the right to injunctive relief and specific
performance, for breach by the other party of the terms and conditions of
this Agreement.
10.8 FURTHER ASSURANCES. Each of the parties hereto shall, without
charge to the other, take such additional actions and execute, deliver and
file such additional instruments and other documents as may be reasonably
required to give effect to the transactions contemplated hereby.
10.9 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any person or entity other than the parties to it, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third party to any party to this Agreement, nor shall any
provision give any third parties any right of subrogation or action over
against any party to this Agreement.
10.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto by separate counterparts, each
of which when so executed shall be an original, and all of which shall
constitute one and the same instrument.
10.11 LICENSES MAY VARY. Axis understands and hereby acknowledges that
other licensees of Interweb have been and may be granted licenses at different
times and in different situations, the provisions of which may vary
substantially from those contained in this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized representative as of the date first
above written.
INTERWEB HOUSTON INTERWEB DESIGN, INC.
By:
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Name:
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Title:
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Address: 0000 Xx. Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
AXIS AXIS TECHNOLOGIES CORP.
By:
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Name:
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Title:
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Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
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