Exhibit 10.14
SUBLICENSING AGREEMENT
This SUBLICENSING AGREEMENT ("Agreement") is made this __ day of January,
2000, (the "Effective Date") by and between The XxxXxx.xxx, Inc., a Florida
corporation ("Company") and Xxxxxxxxxxxx.xxx Inc., a Florida corporation
("Xxxxxxxxxxxx.xxx Inc."), with reference to the following recitals.
WHEREAS, Xxxxxxxxxxxx.xxx Inc., is a technology company engaged in
providing services that include personalized web pages, e-mail and electronic
commerce.
WHEREAS, The XxxXxxxx.xxx, Inc. ("BigStore") has developed an
infrastructure, which includes certain proprietary technology which enables
BigStore, among other things, to be able to process e-commerce transactions on
the Internet in an efficient and effective manner and to track customer orders
from the time the order is placed through delivery to the consumer's designated
ship to address ("Back-end Processing Technology"); and
WHEREAS, Company licenses the Back-end Processing Technology from the
BigStore pursuant to the terms and conditions of an Exclusive Master Licensing
Agreement dated November 12 1999.
WHEREAS, Xxxxxxxxxxxx.xxx Inc., desires to sublicense the Back-end
Processing Technology from Company upon the terms and conditions set forth
below; and
WHEREAS the parties desire to enter into this Agreement to more clearly
define their respective duties and responsibilities.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this
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Agreement, the Company hereby grants to Xxxxxxxxxxxx.xxx Inc., a
perpetual, non-exclusive, worldwide right and sublicense to use the
Back-end Processing Technology to be operated by Xxxxxxxxxxxx.xxx
Inc., on the Internet in connection with a Xxxxxxxxxxxx.xxx Inc.,
mall (the "Sublicense"). The Sublicense will be a turnkey sublicense
of a total backend e-commerce solution which will include transaction
processing, credit/debit card validation, fraud detection, order
tracking, transaction accounting, reporting and records retention,
vendor communications and management, customer profiles, maintenance,
and such other capabilities as may be necessary in order to operate a
complete e-commerce business. The parties agree that during the term
of this Agreement the Company shall operate the mall to be established
by Xxxxxxxxxxxx.xxx Inc., which shall incorporate the Backend
Processing Technology being sublicensed herein.
Notwithstanding the foregoing, the parties agree that Xxxxxxxxxxxx.xxx
Inc., shall be solely responsible for providing and maintaining all
applicable and necessary web servers necessary to facilitate all e-commerce
transactions contemplated herein and on the Xxxxxxxxxxxx.xxx Inc., Inc.'s
mall web site. Xxxxxxxxxxxx.xxx Inc. further agrees not to use the services
of any other e-commerce provider that directly competes with and/or is
substantially similar to the service provided herein during the term of
this agreement.
2. Company's Representations and Obligations
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2.1 Representation of Company. The Company represents and warrants to
Xxxxxxxxxxxx.xxx Inc., that:
(a) The Company licenses the Back-end Processing Technology from The
BigStore;
(b) The Company has the right to sublicense the Back-end Processing
Technology; and
(c) The Back-end Processing Technology does not, to the knowledge of
Company, infringe any on patent, copyright, trademark, trade secret or
other intellectual property rights, or similar rights of any third
party.
2.2 Disclaimer. Except as expressly provided herein, the Company makes no
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representations or warranties, either express or implied, with respect to the
Back-end Processing Technology. Without limiting the generality of the
foregoing, the Company specifically disclaims any implied warranty or
representation that the use of the Back-end Processing Technology or will
provide to Xxxxxxxxxxxx.xxx Inc., any particular result or will be suitable for
Xxxxxxxxxxxx.xxx Inc., Inc.'s purposes.
3. Terms and Termination
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3.1 The term of this Agreement shall commence as of the Effective Date and
continue for a period of five (5) year(s) (the "Initial Term"), unless sooner
terminated as provided below. Within sixty (60) days prior to the expiration of
the Initial Term, the parties agree to negotiate the terms of any Additional
Term(s), which negotiations shall take into consideration the value of the
services provided and compensation paid to date, the services being provided to
and compensation being paid by affiliated companies, and the current market rate
for such services (including anticipated services). The Initial Term and each
Additional Term are collectively referred to herein as the "Term."
3.3 Notwithstanding Section 3.2 above, Xxxxxxxxxxxx.xxx Inc., may
terminate this agreement at any time by delivering thirty (30) days written
notice to the Company, but will be subject to the following early termination
fees:
(a) Eighty thousand dollars ($80,000) where termination is within
twelve (12) months of the Effective Date;
(b) Sixty thousand dollars ($60,000) where termination is within
thirteen (13) to twenty four (24) months of the Effective Date;
(c) Forty thousand dollars ($40,000) where termination is within
twenty five (25) to thirty six (36) months of the Effective Date;
(d) Twenty thousand dollars ($20,000) where termination is within
thirty seven (37) to forty eight (48) months of the Effective Date;
(e) Ten thousand dollars ($10,000) where termination is within forty
nine (49) to sixty (60) months of the Effective Date.
3.4 Either party may terminate this Agreement immediately if:
(a) The other party has breached a material term of this Agreement
and, after written notice and a reasonable opportunity, not to exceed fifteen
(15) days, the other party fails to cure such breach; or
(b) The other party has committed any act or omission that materially
injures the reputation of the other party.
3.5 This Agreement shall automatically terminate upon the occurrence of
any of the following events:
(a) The bankruptcy or insolvency of either party; or
(b) The liquidation or dissolution of either party.
3.6 Upon any termination of this Agreement, each party shall promptly
deliver to the other party all Confidential Information (defined below) and
property belonging to the other party that is in its possession or under its
control, and neither party shall retain copies or reproductions of such
Confidential Information.
4. Compensation. As compensation for the Back-end Processing Services and
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Order Processing to be rendered by the Company under this Agreement,
Xxxxxxxxxxxx.xxx Inc., agrees to pay to the Company the following:
4.2 In consideration for the Sublicense, the parties agree that all Net
Sales Revenue generated from the Xxxxxxxxxxxx.xxx Inc., mall shall be
paid to the Company, from which, within 5 days following the end of
each month, the Company shall pay to Xxxxxxxxxxxx.xxx Inc., an amount
equal to six percent (6%) of the Net Sales, defined as gross sales,
less refunds, cancellations, and return costs.
4.3 Set-up fee $ 0
4.4 Monthly maintenance fee $ 0
4.5 At any time after the first ninety (90) days from the Effective
Date of this Agreement and where Xxxxxxxxxxxx.xxx Inc., can
satisfactorily establish to the Company that Xxxxxxxxxxxx.xxx Inc.,
has in place the necessary vendor credit, customer support, merchant
accounts, credit lines, and other capabilities necessary to operate
an e-commerce web site, as determined by the Company in its sole
discretion, which consent to satisfaction shall not be unreasonably
withheld, the parties agree that Starting Point, Inc., Inc. shall
thereafter be entitled to all Net Sales Revenue, as previously
defined in Section 4.2 above, generated from the sales in the
Starting Point, Inc., Inc. mall. Thereafter, Xxxxxxxxxxxx.xxx Inc.,
shall be obligated to pay to the Company, within five (5) days
following the end of each month, an amount equal to six percent (6%)
of Net Sales Revenue and Section 4.2 above shall no longer be of
force and effect.
5. Independent Contractor Relationship. This Agreement shall in no way be
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construed to constitute either party as a partner, joint venturer, agent, or
employee of the other party, and neither party shall act or attempt to act or
represent itself, directly or by implication, as a partner, joint venturer,
agent or employee of the other party. Neither party nor any of its respective
employees shall have any authority to enter into contracts, make commitments or
otherwise bind the other party to any obligations without the other party's
prior written consent.
6. Confidentiality
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(a) Each party acknowledges and agrees that it will have access to or be
provided with confidential information of the other party during the term of
this Agreement. As used herein, the term "Confidential Information" shall mean
any and all proprietary or confidential information of a party, including,
without limitation such party's business plan, business presentation or related
proprietary and financial information as well as other confidential or
proprietary information of such party regarding that party's business, plans,
financial results and statements, markets, projected activities, customers and
results of operations, requirements and sources, contracts, means, methods and
processes of providing services, copyrights, patents, trademarks, trade secrets,
and financial information. Xxxxxxxxxxxx.xxx Inc. will not have access to the
computer source code that runs Company's proprietary systems, i.e., The Back-end
Processing Technology.
(b) Each party agrees to keep the Confidential Information of the other
party in the strictest confidence, and agrees that it will not, directly or
indirectly, publish or disclose, or authorize the publication or disclosure of,
or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than its employees or consultants, but only to the
extent necessary for the fulfillment of its obligations under this Agreement and
subject in each case to the party using its best efforts to ensure that persons
to whom Confidential Information is disclosed keep such information confidential
and do not use Confidential Information except for the purposes for which the
disclosure is made. Each party agrees to comply with the other party's policies
and regulations, as may be reasonably established from time to time, for the
protection of its Confidential Information.
(c) Each party's confidentiality obligations shall continue with respect
to each item of Confidential Information, including after the termination of
this Agreement, for a period of five (5) years or until such time as such party
can show that any such item of Confidential Information (i) has legally and
properly entered the public domain through a source other than its own and
through no fault of its own, (ii) has legally and properly been received from an
unrelated third party through no breach of any agreement with the other party
and without an obligation to keep it confidential, (iii) was known to such party
or was in such party's possession, without any obligation to keep it
confidential, prior to the receipt of such item of Confidential Information from
the other party, or (iv) was independently developed by one party without
reference to Confidential Information received hereunder.
(d) Each party acknowledges that the other party's Confidential
Information is of a special, unique and extraordinary character and for that
reason the other party will be irreparably damaged in the event that the
confidentiality obligations imposed herein are not specifically enforced.
Accordingly, each party agrees that the other party shall be entitled, at its
election, to institute and prosecute proceedings against it, as set forth
herein, in any court of competent jurisdiction, either at law or equity, to: (i)
obtain damages for breach of the obligations hereunder; (ii) enforce specific
performance of said obligations, or both. Such remedies are cumulative and not
exclusive and shall be in addition to any and all other remedies which the other
party may have, at law or in equity, in the event the party breaches any of
its obligations hereunder. The parties hereto confirm that the covenants in this
Agreement are expressly deemed to cover acts of negligence and any inadvertent
disclosure or violation of the terms herein.
7. Ownership of Proprietary Information. Xxxxxxxxxxxx.xxx Inc., hereby
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acknowledges and agrees that the Back-end Processing Technology is the sole and
exclusive property of BigStore and that Xxxxxxxxxxxx.xxx Inc., has no, and shall
not obtain by virtue of this Agreement, right, title or interest in or to any of
the Back-end Processing Technology.
8. Limitation of Liability. Notwithstanding anything to the contrary
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contained herein, the limit of each party's liability (whether in contract,
tort, negligence, strict liability in tort or by statute or otherwise) to the
other or to any third party concerning performance or non-performance under this
Agreement, or in any manner related to this Agreement, for any and all claims
shall not in the aggregate exceed the monetary amounts previously paid by that
party to the other party pursuant to this Agreement. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE
LOSS, DAMAGES OR EXPENSES (INCLUDING LOST PROFITS OR SAVINGS) EVEN WHERE THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
9. Indemnification. Each party (the "Indemnifying Party") agrees to defend,
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indemnify and hold harmless the other party and its directors, officers,
employees, shareholders, assigns and agents (the "Indemnified Party") from and
against any and all damages, liabilities, losses, claims, demands, costs and
expenses (including, without limitation, reasonable attorneys' fees) which may
be asserted against or sustained or incurred by any of the Indemnified Party as
a result of,
arising out of or relating to (i) any material breach or default by the
Indemnifying Party of any of the terms or provisions of this Agreement,
including without limitation, any use or misuse of the Back-end Processing
Technology, or any negligence or errors or omissions on the party of a party in
the performance of its duties or obligations hereunder, or (ii) any litigation
involving the Indemnifying Party not relating to this Agreement where the
Indemnified Party has been made a party to such litigation by virtue of the
parties' strategic relationship, including but not limited to third party claims
of intellectual property infringement. In addition, Xxxxxxxxxxxx.xxx Inc.,
specifically agrees to defend, indemnify and hold harmless the Company and
BigStore from an against any and all damages, liabilities, losses, claims,
demands, costs and expenses (including reasonable attorneys' fees) resulting
from, arising out of, or relating to any misrepresentation, misstatement or
omission by Xxxxxxxxxxxx.xxx Inc., with respect to the Back-end Processing
Services, Order Processing Services, including, without limitation, the
capabilities of such services.
10. Force Majeure. Subject to the limitations of this Agreement and except as
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specifically provided in this Agreement to the contrary, neither of the parties
hereto shall be liable for defaults, delays or non-performance of any covenant,
agreement, work, service, or other act required under this Agreement to be
performed by such party, or for any damages, including, without limitation, any
incidental or consequential damages, arising out of the failure to perform any
of its obligations, by reason of any circumstance or condition beyond its
control, including, without limitation, default of third-party vendors,
suppliers or service providers, failure of power or other utilities, strikes,
lockouts and other labor disputes or other industrial disturbances, unavoidable
accidents, acts of terrorism, sabotage, embargoes, blockades, injunction or
other administrative order, governmental law or regulations (including changes
in United States foreign policy) which prevent or substantially interfere with
the required performance, condemnations, riots, insurrections, martial law,
conflicts (declared or undeclared), civil commotion or disorders and any
adverse change in political, economic or social conditions, fire, explosion,
flood, earthquakes and other casualty, acts of God, or any other cause beyond
the control of such party (each, a "Force Majeure Event"). In the event of any
such Force Majeure Event, the performance of any covenant, agreement,
obligation, work or service, or other act of the party affected by such Force
Majeure Event under this Agreement shall be excused for the period of delay and
the period for the performance of the same shall be extended by such period.
Each of the parties hereto shall take all reasonable steps to resume performance
hereunder with the least possible delay.
11. Access to Information. Xxxxxxxxxxxx.xxx Inc., hereby agrees to provide
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access to Company and its authorized representatives (e.g., its auditors) during
normal business hours to Xxxxxxxxxxxx.xxx Inc.'s accounting books and records in
order to verify the accuracy of fees paid to the Company not more than once per
year. In the event that the Company discovers an underpayment of fees for any
thee-month period in excess of ten percent (10%), then, in addition to promptly
paying to the Company the amount of such underpayment, Xxxxxxxxxxxx.xxx Inc.,
shall reimburse the Company for its reasonable costs incurred in conducting such
audit.
12. Miscellaneous.
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12.1 Entire Agreement. Except as otherwise provided herein, this
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Agreement constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be an
agreement in writing executed by the parties hereto.
12.2 Binding Effect, Assignment. This Agreement shall inure to the
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benefit of and be binding upon the parties and their respective successors and
assigns. Xxxxxxxxxxxx.xxx Inc. may not assign this Agreement without the prior
consent of the Company.
12.3 Notices. All notices, requests, demands, and other communications
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provided for hereunder shall be in writing (or by telex or facsimile
transmission) and shall be deemed to have been duly given:
(i) On the date of service if delivered in person or by telex or
facsimile transmission (with the telex or facsimile
confirmation of transmission receipt acting as confirmation of
service when sent and provided that telexed or telecopies notices
are also mailed by first class, certified or registered mail,
postage prepaid); or
(ii) In seventy-two (72) hours after mailing by first class,
registered or certified mail, postage prepaid, and properly
addressed as follows:
The BigHub, Inc. Xxxxxxxxxxxx.xxx Inc.:
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2939 Xxxx Rock 0000 Xxxx Xxxxx Xx.
Xxx Xxxxxxx, Xxxxx 00000 Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Attn:____________________ Attn:__________________________
Or at such other address as the party affected may designate in a written notice
in compliance with this Section.
12.4 Arbitration. Except for the matters covered by Section 6(d) above,
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all disputes arising out of or in connection with this Agreement shall be
finally settled under the Rules of American Arbitration Association ("AAA") by
one or more arbitrators appointed in accordance with said Rules. The place of
arbitration shall be Orange County, California. The parties hereby renounce any
right of recourse that they may have before the court of any jurisdiction except
to obtain preliminary or injunctive relief or enforce an award of the
arbitrator.
If any award rendered by AAA in accordance with this arbitration clause
would not be capable of being executed in the jurisdiction of a party against
whom a claim for payments made or where that party resides or carries on
business, neither the award nor the said arbitration clause shall bar a party
hereto from taking action before the courts that have jurisdiction over such
other party.
12.5 Attorney Fees. In the event that any party shall bring an action or
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arbitration in connection with the performance, breach or interpretation hereof,
then the prevailing party in such action, as determined by the court or other
body have jurisdiction tion, shall be entitled to recover from the losing party
in such action, as determined by the court or other body having jurisdiction all
reasonably costs and expenses of litigation or arbitration, including reasonable
attorneys fees, court costs and other costs reasonably related to such
proceeding, in such amounts as may be determined in the discretion of the court
or other body having jurisdiction.
12.6 Section Headings. The various section headings are inserted for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
12.7 Severability. In the event that any provisions, or portions thereof,
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of this Agreement are held to be unenforceable or invalid by any court of
competent jurisdiction, the validity and enforceability of the remaning
provisions, or portions thereof, shall not be affected thereby.
12.8 Counterparts. The parties hereto may execute this Amendment
simultaneously, in any number of counterparts or by annexing signature pages
hereto, or on facsimile copies, each of which shall be deemed an original, but
all of which together shall constitute one and the same documents.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
The XxxXxx.xxx, Inc Starting Point, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxx Xxxxxxxxx
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Title: President CEO Title: V.P. Business Development
