SALE OF TECHNOLOGY AGREEMENT Exhibit 10.1
This Sale of Technology Agreement ("Agreement") is made and
effective this 30th day of November 1998, by and between Axiom Communications
Group, Inc., a New York Corporation ("Buyer"), and Guibert Englebienne
("Seller").
Seller has developed and owns all rights, including the
copyright, to certain computer software and related documents;
Buyer wishes to purchase, and Seller wishes to sell, such
software and documentation, the related goodwill and all other associated
property rights, including all copyrights and all rights to enhanced, modified
and updated versions and derivative works related thereto.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants contained herein, the parties agree as follows:
1. Transfer.
A. Software. Seller hereby sells, assigns, conveys and
transfers to Buyer all of Seller's right, title and interest in and to the
following described computer software (the "Software"): The software consists of
a set of scripts, applications and database stored procedures which are either
embedded or executed from a web page and interact with the corporate database
and telecommunications switch in order to provide the following features through
the Company's web site.
Automatic sign up of customers.
Includes:
Credit card authorization (interfacing with third party
program).
Customer account creation on the corporate database.
Sub accounts to allow the usage from several locations.
Activation on the telecommunications switch for these accounts
(interfacing with a third party program).
Retrieval of call detail information directly from the corporate
database.
Retrieval of invoices.
Callback trigger directly from the web page.
These scripts are built using CGI scripting and Java applications that
are connected to the database using the Sybase's Jconnect libraries.
The Software includes:
(i) The first version of the Software and all subsequent versions
thereof in all versions delivered to Axiom on March 15, 1998
and all forms of expression thereof, including any Software
source code, object code, flow charts, and block diagrams, and
programmer documentation, previous versions, notes, other
information relating to the Software; and all copyrights,
trade secrets, patentable inventions, proprietary rights and
intellectual property contained therein including Seller's
copyright in the Software.
(ii) A demonstration version of Sybase Jconnect. Buyer agrees to
purchase, at its own expense, the full working version for
each computer on which the Software is installed and Seller
agrees to install, for no additional compensation, said
working version of Sybase.
B. Delivery. The Software has been delivered to Buyer
prior to execution of this Agreement. Seller shall from time to time, but
without further consideration, execute and deliver such instruments or documents
and take such other action as is reasonably necessary which Buyer may request in
order to more effectively carry out this Agreement and to vest in Buyer the
Software and title thereto.
2. Purchase Price. In consideration for the transfer of the
Software, Buyer shall pay to Seller, (A) $175,000 payable in four equal
installments commencing thirty days after the closing of any initial public or
private financing by Buyer but, in any event, not later than January 1, 1999 and
every six months thereafter. (B) an additional $25,000 payable in one
installment ninety days after the last payment set forth in 2 (A) or, at
Seller's option, exercisable upon his receipt of the first payment called for in
section (A) hereof, an option to purchase up to 10,000 shares of Buyer's stock
of the same class and value provided to employees (but not officers of the
Company) of the Company (most favored nation class) at the discounted price of
$2.50 a share. The option to purchase up to 10,000 shares of Buyer's stock will
expire within one (1) month of the date option is vested. It is expressly agreed
that none of the payments set forth herein is contingent upon Buyer obtaining
public or private financing.
3. Default.
(1) In the event that Buyer fails to make any payment due
hereunder on the date due, interest shall, without further notice, accrue on the
unpaid balance due at the rate of 9% per annum.
(2) Upon written notice of default in payment, Buyer shall
have the right to cure as follows: 45 days from the date payment was due within
which to pay 30% of the amount in default, plus accrued interest, and an
additional 45 days from the date payment was due within which to pay the
remaining 70% of the amount in default, plus accrued interest;
(3) If Buyer fails to cure the default as set forth above,
then, at Seller's sole option, Seller shall be entitled to (1) immediate payment
of the full amount remaining unpaid and Buyer shall not have any right to use
the Software until such payment is made, or (2) return of all right title and
interest to the Software an any related copyrights or patents in which case
Buyer shall not have any further right to use the Software;
(4) If Seller fails to provide the Manuals (as defined in the
Consulting Agreement) as set forth in paragraph 9 of the Consulting Agreement
dated November 30, 1998, then for each day of delay, payment due under this
agreement shall be deferred two days , without interest.
4. Representations and Warranties of Seller. Seller
represents, warrants and covenants as follows:
A. Title; Infringement. Seller has good and
marketable title to the Software, including copyright to the Software, and has
all necessary rights to enter into this Agreement without violating any other
agreement or commitment of any sort. Seller does not have any outstanding
agreements or understandings, written or oral, concerning the Software.
B. No Liens. The software is not subject to any lien,
encumbrance, mortgage or security interest of any kind.
C. Authority Relative to this Agreement. This
agreement is a legal, valid and binding obligation of Seller. The execution and
delivery of this Agreement by Seller and the performance of and compliance by
Seller with the terms and conditions of this Agreement will not result in the
imposition of any lien or other encumbrance on any of the Assets, and will not
conflict with or result in a breach by Seller of any of the terms, conditions or
provisions of any order, injunction, judgement, decree, statute, rule or
regulation applicable to Seller, the Software, or any note, indenture or other
agreement, contract, license or instrument by which any of the Software may be
bound or
affected. No consent or approval by any person or public authority is required
to authorize or is required in connection with, the execution, delivery or
performance of this Agreement by Seller.
D. Warranty. Seller hereby warrants that for a period
of twelve (12) months from the date hereof the Software shall (1) be free of
defects in programming and operation, (2) function in accordance with the
specifications set forth in the Functional Specifications in Schedule A attached
hereto; and (3) be merchantable and fit for the purpose of selling,
provisioning, invoicing and charging communication services on-line in its
current configuration. In the event that the Software fails to perform in
accordance with this warranty, Buyer shall inform Seller of such fact and Seller
shall provide, free of charge, such programming, design, and installation
services as may be necessary to correct such errors. In the event that the
Software error can not be corrected by Seller within a reasonable time, then, at
Buyer's discretion, Buyer may return the Software and Seller will return any
payments made up to the date the Software is returned, and neither party will
have any further obligation to the other party. In the event that the Software
error can not be corrected by Seller within a reasonable time and Buyer does not
wish to return the Software, the purchase prices in paragraph 2 herein shall be
reduced, by an amount equal to the cost to the Company to have the error
corrected by a third party.
E. Limitation of Liability. THE WARRANTIES IN THIS AGREEMENT
ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED, AND ARE THE
SOLE WARRANTIES MADE BY SELLER WITH RESPECT TO THE SOFTWARE. SELLER SHALL HAVE
NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES.
5. Acceptance. The Software was integrated into Buyer's
English version Web Site for the purpose of testing the Software. The Buyer has
accepted the Software.
6. Training. Seller shall provide all instructions and
training reasonably necessary to train one entry level engineer hired and paid
by Buyer to maintain and operate the Software. Nothing herein shall make Seller
an employer of said person.
7. No Brokers. All negotiations relative to this Agreement
have been carried on by Buyer directly with Seller, without the intervention of
any person as the result of any act of Buyer or Seller (and, so far as known to
either party, without the intervention of any such person) in such manner as to
give rise to any valid claim against the parties hereto for brokerage
commissions, finder's fees other like payment.
8. Consents, Further Instruments and Cooperation. Buyer and
Seller shall each use their respective best efforts to obtain the consent or
approval of each person or entity, if any, whose consent or approval shall be
required in order to permit it to consummate the transactions completed hereby,
and to execute and deliver such instruments and to take such other action as may
be required to carry out the transaction contemplated by this agreement. Seller
shall execute, or cause its employees and agents to execute, any patent or
copyright application or other similar document or instruments, following
Buyer's reasonable request.
9. Buyer's Use of the Software. Buyer may, at its sole
discretion, market, license and sell the Software under names and trade names of
its own choosing, and may develop updated and modified versions and derivative
works of the Software without attribution of authorship to Seller as long as it
is not in breach under the terms of this Agreement. Buyer shall own all rights
and title, including copyrights, in and to updated and modified versions and
derivative works of the Software without requiring permission from Seller and
without incurring payment obligations in addition to those provided herein.
Buyer may market or use the Software in whatever manner and at whatever prices
it sees fit.
10. Seller's Non-Use of the Assets. Seller retains no rights
whatsoever in the Software and does not retain the right to use the Software or
any material relating to the Software for any purpose, personal, commercial, or
otherwise. Seller furthermore shall maintain all information relating to the
Software or use of the Software in confidence and shall not disclose any aspect
of the Software to any third party without the prior written consent of Buyer.
Seller agrees not to participate in any activities relating to the business of
providing telecommunications services which competes, directly or indirectly,
with Buyer's marketing or distribution of the Software for a period of one (1)
year following the expiration of the Consulting Agreement, provided, however,
that Buyer is not in breach hereunder.
11. Confidentiality. It is anticipated by the parties hereto
that during the design implementation, development, and testing of the Software,
Seller will necessarily acquire knowledge of the business, trading practices,
financial structure, operations and fiduciary relationships of Buyer, and Buyer
will acquire knowledge of the business practices, customer contacts and similar
trade secrets of Seller (collectively, the "Confidential Information"). Each
party hereby agrees to maintain the confidentiality and to instruct its
employees to maintain the confidentiality of the Confidential Information. Each
party shall, upon Acceptance of the Software, upon termination of this
Agreement, or upon demand of the other party, whichever is sooner, return any
and all documents containing Confidential Information, or from which
Confidential Information could be inferred, including any copies or
reproductions thereof, to the other. The
obligation to maintain the confidentiality of the Confidential Information as
provided hereunder shall survive the termination of this Agreement.
12. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York.
13. Assignment. Neither Buyer nor Seller may assign this
Agreement or any obligation herein without the prior written consent of the
other party. This Agreement shall be binding upon and inure to the benefit of
the parties named herein and their respective heirs, executors, personal
representatives, successors and assigns. Buyer may assign this Agreement to a
subsidiary or affiliate or as part of the sale of the Buyer's business. Seller
may assign to a corporation or limited liability Company of which Seller is the
controlling principal.
14. Entire Agreement. This Agreement contains the entire
understanding of the parties, and supersedes any and all other agreements
presently existing or previously made, written or oral, between Buyer and Seller
concerning its subject matter. This Agreement may not be modified except by a
writing signed by both parties.
15. Severability. If any provision of this Agreement is
declared by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement nevertheless will
continue in full force and effect without being impaired or invalidated in any
way.
16. Notices. All notices, requests, demands, and other
communications hereunder shall be deemed to have been duly given and received if
delivered or mailed, certified or registered mail, or the equivalent in
Argentina, with postage prepaid:
If to Buyer:
Xxxxxxxxx Xxxxxxxxxxx
c/o Axiom Communications Group, Inc.
00 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
If to Seller:
Guibert Englebienne
Xx. Xxxxx 0000, 0xx Xxxxx
Xxx xxx XXXXX 0000
Xxxxxxxxx
17. Relationship of the Parties. The relationship between
Buyer and Seller under this Agreement is intended to be that of buyer and
seller, and nothing in this Agreement is intended to be construed so as to
suggest that the parties hereto are partners or joint venturers, or either party
or its employees are the employee or agent of
the other. Except as expressly set forth herein, neither Buyer nor Seller has
any express nor implied right or authority under this Agreement to assume or
create any obligations on behalf of or in the name of the other or to bind the
other to any contract, agreement or undertaking with any third party.
18. Headings. Headings used in this Agreement are provided for
convenience only and shall not be used to construe meaning or intent.
19. Waiver. Failure of either party to exercise in any respect
any of the rights provided herein shall not be deemed a waiver of any right
hereunder.
20. Arbitration. Any dispute arising out of or relating to
this Agreement shall be resolved pursuant to the rules set forth by the American
Arbitration Association in New York City pursuant to which each party shall have
the right to designate an arbitrator of their choice. The two arbitrators shall
select a third, impartial arbitrator. The parties shall each bear equally the
fees of the arbitrator. Nothing herein shall preclude either party from seeking
or obtaining injunctive relied in aid or arbitration.
21. Survivability. Paragraphs 4, 9 to 12 of this Agreement
will survive the expiration or any termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
AXIOM COMMUNICATIONS GROUP, INC.
By: _/s/ Christian Bardenheuer__________________
Xxxxxxxxx Xxxxxxxxxxx
Co-Managing Director
By: _/s/ Warner X. Xxxxxxx, Xx._________________
Xxxxxx Xxxxxxx,
Co-Managing Director
______/s/ Guibert Englebienne___________________
Guibert Englebienne
Schedule A
The software consists of a set of scripts and programs that enable customers and
the Company to perform a set of tasks in real time.
The software allows customers on line to:
o Survey country specific rates
o Sign up new customers in real time and use the call back services
immediately
o Review call detail reports upon hanging up. (Once direct connection to
the switch is established using third party software Solaris. Until then,
within 24 hours.)
o Automatically send monthly modification of invoices to customer's via
e-mail and automatically send invoices from Company's web site.
o Create an account for callback services, including:
o Validating information inputted by customer
The script includes several restrictions in order to ensure that the
information provided by each new customer is valid and that it is
submitted in a manner that is consistent with the standards set in
the corporate database. For internal usage, the script also allows
for the creation of a demonstration (demo or test) account.
o Obtaining credit card authorization
To verify each new credit card, the company uses a third party
program called PCHub by Tellan Software. This program uses a
conventional modem and regular telephone line to connect with the
credit card bureau currently in use by the Company. PCHub currently
verifies cards from Visa, MasterCard and American Express. PCHub
obtains an instant authorization code, which allows the Company to
charge the customer at the end of every billing cycle. The time
required to obtain an authorization depends upon the availability of
the line, modem and network. The system can handle multiple
authorizations simultaneously by submitting the request to PCHub.
These requests are managed by the PCHub.
o Creating customer accounts on the corporate database
Using a third party software, Jconnect libraries from Sybase, the
script, which is written in Java, seamlessly connects to the
administrative database and creates a record on each new customer
based upon the password, personal and payment information provided
by each customer at sign-up. Multiple users can sign-up at the same
time. At the request of the Company, currently the customer is able
to activate call back services for a maximum of three separate
telephone numbers, however, the software is capable of being altered
to activate as many separate telephone numbers as desired. Each
telephone number is stored separately in the DID aisle in the
administrative/corporate database under the customer's account
number. Only the first telephone number requested by a new customer
is automatically activated with a US$20 credit limit, (set in the
credit table within the administrative/corporate database) until the
customer sends signed photocopy of the credit card. When the company
receives the new customer's confirmation fax and credit card
identification has been established, an operator activates the
remaining accounts on the administrative/corporate database and the
switch, and brings the credit limit to the authorized level.
o Activating the account on the switch to enable immediate access to
the service
The telecommunications switch and corporate database that is being
used by the Company stores all the information relating to the
customers' account number, password, return numbers and credit
limits on text files an tables. This enables customers to have
immediate access to the call back
service. The third party switch is currently running under Unix on a
different server than the web server. In order for the script to
update the switch's table with new information, it is necessary for
the web server to have access via a network drive to an NFS exported
subdirectory on the switch. The seller has configured the software
to access the switch tables in the format and location currently in
use at the Company. This format and location must remain the same in
order for the system to run without further modifications. The
script updates the DID table on the switch to enable the use of the
first return number for which the customer required service and
immediately updates the customer's credit table to include the US$20
credit limit.
o OBTAIN A CALL DETAIL REPORT
Using a DID number and the customer's password, the software
immediately initiates a connection to the administrative/corporate
database and generates within minutes a report of all calls recorded
onto the database between the dates specified. The requested report is
shown on the customer's Internet browser.
o VIEW THE MONTHLY INVOICE ONLINE
Every four weeks, the Software automatically e-mails customers
requesting to visit the Company's secure site by hyperlink. Once on
this site, customers are asked to input their account number and
password, and within minutes the customer can retrieve invoices in a
readable format.
o TRIGGER A CALLBACK SERVICE THROUGH THE INTERNET
The switch can initiate a call back session by receiving an e-mail from
an existing customer, which includes in the subject the customer's DID
and the number to call. Within minutes, the third party switch
initiates both calls. For customers without e-mail a page permanently
resides on the Company's web site which is capable of sending the
requisite e-mail on behalf of the customer after instantly verifying
the customer's password and related DID.
The Software requires the following third party software components
that must be installed and correctly configured so that the software
can efficiently and effectively handle signups within 3 minutes of
submitted. The seller shall provide the Company with information on the
hardware and software upgrades required to maintain this response time
as traffic grows and the Company agrees to provide those resources.
o Windows NT Server 4.0 with Internet Information Server version 4.
o Perl 5.0 for Win32
o Java 1.1.6
o Jconnect libraries from Sybase
o NFS client mapping the S: drive to the directory where the switch
tables resides with full access permissions.
o PCHub software properly configured according to manufacturer
specifications and merchant account, running all the time. The web
server must have permission to get authorizations on this PCHub.
The parties agree that processing times may vary negatively as a result
of random external factors and that any standards specified herein can
not be guaranteed to be valid at all times but in most instances.
