EX-10
2
ex-10.htm
MASTER AGREEMENT FOR LICENSE
MASTER AGREEMENT FOR LICENSE
THIS MASTER
AGREEMENT FOR LICENSE ("Agreement") is made and entered into as of January 30,
2005 (the "Effective Date") by and between Broadband Wireless International
Corporation, a Nevada corporation ("BBAN") having offices at 00000 X. Xxxxxx, #
000, Xxx Xxxxx, Xxxxxx 00000, U.S.A and WorldVuer, Inc., a Nevada corporation
("Provider") having offices at 0000 Xxxx 00000 Xxxxx, Xxxxxxxx, Xxxx 00000.
PURPOSE
-
BBAN has expertise in Internet based marketing concepts,
celebrity access to enhance the market reach of any product and a history of
Broadband wireless communication.
-
Provider has expertise in design and development services
for Internet applications and standalone software development.
-
Provider has developed a bundled Visual Communications
Subscriber Line platform and service model to deliver interactive visual
communications, trade and commerce services via video and/or voice data over
a dedicated Virtual Broadband Network (VBN).
-
BBAN desires Provider to license on a non-exclusive basis
its Visual Communication Subscriber Lines (VCSL) model and distributive
architecture to BBAN.
-
BBAN desires Provider to license on a non-exclusive basis
its Virtual Broadband Network Operator (VBNO) service model, architecture,
and plan to BBAN.
AGREEMENT
NOW THEREFORE, in
consideration of the mutual covenants contained herein, the above described
"purposes", and for other goof and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Definitions.
In this Agreement, the following words and expressions shall
have the following meanings:
1.1 "Confidential Information" means any
information written, transmitted or otherwise disclosed by any medium, by
one party to the other under this Agreement that is marked or otherwise
designated as confidential or which under the circumstances surrounding
disclosure ought to be treated as confidential. Confidential Information
shall not include any information that: (a) is or becomes a part of the
public domain through no act or omission or breach of this Agreement by
either party hereto; (b) was in Provider's lawful possession prior to the
disclosure, as shown by its written records, and had not been obtained by
Provider either directly or indirectly from BBAN.
1.2 "Deliverables" means the specific materials,
devices, products or other deliverables that are provided by the provider to
BBAN as a result of performing the Services and which are specified in this
Agreement and its Exhibits.
1.3 "Individual Project Agreement" ("IPA") means
the task or project specific agreement executed between the parties that
defines the Services, IPR that are to be the subject of the License
hereunder, including the related Statement of Work, deliverables, schedule.
And acceptance criteria, as well as payment amount, terms and schedule, and
all other terms that are specifically related only to that particular task
or project in substantially the same form as Exhibit A attached hereto.
1.4 "Intellectual Property Rights" ("IPR") shall
mean, with respect to any technology, (i) all right, title and interest in
an to any patent, letters patent, industrial model, design patent, xxxxx
patent, patent of importation, utility model, certificate of invention,
and/or other indicia or inventorship and/or invention ownership, and any
application for any of the foregoing, and including any such rights granted
upon reissue, division, continuation, or continuation-in-part applications
now or hereafter filed, related to any such application; (ii) all right,
title and interest in and to all trade secret rights arising under the
common law, state law, federal law or the laws of any foreign country; (iii)
all right, title and interest in and to all semiconductor mask work rights,
trademarks, and service marks; (iv) all copyright rights and all other
literary property and/or other rights of authorship; and (v) all right,
title, and interest in and to all know-how and show-how, in each case, with
respect to the subject technology.
1.5 "Payment Schedule" means the schedule of
payment(s) set forth in each IPA with respect to the provision of the
Services.
1.6 "Project Schedule" means the timetable
relating to the performance of the Services set forth in each IPA.
1.7 "Services" means the services described in the
Statement of Work attached to each IPA.
1.8 "Statement of Work" means the description of
the Services, Deliverables, and Project/Payment Schedules to be provided
under this Agreement and shall be attached to the related IPA.
Section 2. Statement of License.
2.1 Description of License. During the Term of
this Agreement and any renewals thereof, Provider shall, non-exclusively,
license to BBAN its Visual Communication Subscriber Line concept and related
technologies, which are bundled Visual Communication Subscriber Line
platform and service model to deliver interactive visual communications,
trade and commerce services via video and/or voice and data over a dedicated
Virtual Broadband Network (VBN).
2.2 Performance. Provider shall at all times
provide a sufficient number of qualified and skilled personnel to perform
the Services necessary to maintain the product quality of the VCSL. Unless
otherwise specified in writing, Provider shall provide all necessary
equipment, tools and other material, at Provider's own expense, necessary to
complete the technology and maintain its quality of market.
Section 3. Compensation.
3.1 Payment. BBAN shall transfer to Provider Sixty
Million (60,000,000) shares of its free trading stock, in addition, pay
Provider a fifteen percent (15%) annual royalty on the net revenues
generated, payable Quarterly. In addition, any amounts which are in
accordance with the Payment Schedule as provided in the applicable IPA.
Unless expressly provided for in the applicable IPA, Provider assumes the
risk of all other costs and expenses.
3.2 Invoices. Each invoice for Services,
Deliverables, or reimbursable expenses shall be supported by (a) an itemized
description of Service/Deliverable/or expense(s) claimed and (b) attached
receipts, when such receipts are reasonably available. Invoices shall
reference the applicable Purchase Order, or in the absence of a Purchase
Order, the Agreement Number set forth above. With the exception of the
Quarterly Royalty Payment set for the in section 3.1 above, which will be
paid to Provider by regular payment shall be made upon receipt of invoice by
BBAN. Invoices and support documentation should be remitted to:
Broadband
Wireless International Corporation
Attention:
Accounts Payable Department
C/o Xxxxxxx
Xxxxx
3.3 Records. Provider and BBAN shall keep accurate
records of the time spent and work done and all charges, including expenses,
in the performance of Services hereunder. BBAN shall maintain books,
documents, papers and records or Provider involving the License and render
such records to Provider at the request of Provider.
Section 4. Relationship Between the Parties.
4.1 Status. Provider's relationship with BBAN will
be that of an independent contractor and nothing in this Agreement should be
construed to create a partnership, joint venture, or employer-employee
relationship. Provider is not an agent of BBAN and is not authorized to make
any representation, contract, or commitment on behalf of BBAN. Providers
will not be entitled to any of the benefits that BBAN may make available to
its employees, such as group insurance, profit sharing or retirement
benefits. Provider will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state or local
tax authority with respect to Provider's performance of Services and receipt
of payments under this Agreement.
4.2 Non-Exclusive Relationship. Subject to
Provider's strict, continuing compliance with the Terms and conditions of
this Agreement, including without limitation, the confidentiality provisions
stated herein, nothing in this Agreement shall restrict or limit Provider
from rendering services to any other entity in any industry.
4.3 Solicitation of Employment. Both parties agree
not to directly or actively recruit, divert or solicit the employment of
either party's employees during the Term of this Agreement and any renewals
thereof and for a period of twelve months thereafter.
Section 5. Confidential Information.
Both parties hereto agree, for the Term of this
Agreement and any renewals thereof and two years after its expiration or
termination, not to disclose Confidential Information to any third parties
and will disclose Confidential Information only to their employees and
contractors with a need to know Confidential Information and whom have the
obligations of confidentiality not to use Confidential Information for any
purpose except as expressly permitted hereunder. The foregoing prohibition
on disclosure of Confidential Information shall not apply to the extent
certain Confidential Information is required to be disclosed by Provider or
BBAN as a matter of law or by order of a court.
By way of illustration, but not limitation, "Confidential
Information" may include tangible or oral disclosures relating to: (a)
Intellectual Property and Newly Developed Intellectual Property (each as
defined below); (b) information regarding Provider's or BBAN's plans for
research, development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; (c) information regarding the skills and
compensation of other employees of either party hereto; and (d) the
Services.
Section 6. Intellectual Property.
6.1 Prior Intellectual Property. Title to and
ownership of Intellectual Property owned, made, conceived or reduced to
practice by each party prior to the Effective Date of this Agreement ("Prior
Intellectual Property") or Intellectual Property developed by a party
outside the scope of this Agreement during its Term shall not be affected or
changed by this Agreement, and such title and ownership rights shall survive
any termination of this Agreement.
6.2 Newly Developed Intellectual Property. BBAN
acknowledges that all prior and Newly Developed Intellectual Property shall
remain the sole and exclusive property of the Provider.
6.3 Assignments and Grants.
6.3.1 Assistance. Provider will reasonably assist
BBAN in obtaining, and from time to time enforcing United States IPR to the
licensed IPR within this agreement. To that end, Provider shall execute,
verify and deliver such documents and perform such other acts (including
appearances as a witness) as BBAN may reasonably request for use in applying
for, obtaining, perfecting, evidencing, sustaining and enforcing such
licensed IPR. In addition, Provider shall execute, verify and deliver
necessary documentation of License or such IPR to BBAN as is customary in
the industry. Provider's obligation to assist BBAN with respect to the
Licensed IPR shall continue beyond the termination of this Agreement, but
BBAN shall compensate Provider at a reasonable rate after such termination
for the time actually spent by Provider at BBAN's request on such
assistance.
6.3.2 Indemnification for Infringement. BBAN shall
indemnify, defend and hold harmless Provider and any of Provider's officers,
directors, employees, advisors, Providers, investors or affiliates from and
against any and all damages incurred by or asserted against any Provider
Indemnity of whatever kind or nature, because of a third party claim that
the Deliverables provided or the performance of Services hereunder infringes
any patent or other intellectual property rights of any third party ("Third
Party Claim") or violates existing law. Provider shall promptly notify BBAN's cost and expenses to defend against such Third Party Claim and to
control the defense and disposition (including, without limitation, all
decisions to litigate, settle or appeal) of such Third Party Claim and shall
cooperate in the defense thereof. Provider may, at its option and expense,
have its own counsel participate in any proceeding that is under the
direction of BBAN and will cooperate with BBAN and its insurer in the
disposition of any such matter. In the event that the Deliverables or
Services or the performance thereof are held to infringe any right of any
party covered by the foregoing indemnity. BBAN shall be entitled to (i)
obtain for Provider a license to such right, or (ii) submit a proposal to
Provider to modify the Deliverables or Services and/or the performance
thereof so that they no longer infringe.
Section 7. Provider's Representations and
Warranties.
Provider hereby represents and warrants that: (a)
Provider has the experience, qualifications and skills necessary to perform
Services under this Agreement in a competent and professional manner; (b)
the Newly Developed Intellectual Property will be an original work of
Provider and any third parties with rights will have executed the necessary
assignment of such rights as is reasonable in the industry; (c) Provider has
full right and power to enter into and perform this License Agreement
without the consent of any third party; (d) Provider will take all
reasonably necessary precautions to prevent injury to any persons (including
employees of BBAN) or damage to property (including BBAN's property) during
the Term of this Agreement; (e) should BBAN permit Provider to use any of
BBAN's equipment, tools, or facilities during the term of this Agreement,
such permission shall be gratuitous; (f) Provider shall comply with all
applicable state, federal and local laws, and executive orders and
regulations in the performance of Services under this Agreement and shall
notify BBAN immediately if Provider's work for BBAN becomes the subject of a
government audit or investigation; (g) Both parties hereto shall not,
without the prior written consent of the other, in any manner advertise or
publish the fact that they have entered into this agreement with the other;
and (h) that the Services and Deliverables will meet the specifications in
the applicable IPA.
Section 8. Indemnification: Insurance.
8.1 Indemnification. Both parties hereto will
indemnify the other party, its officers, directors, employees, sub licenses,
customers and agents from any and all claims, losses, liabilities, damages,
expenses and costs (including attorney's fees and court costs) arising out
of negligent acts or omissions of either party under this Agreement,
including any and all claims arising out of injury, disability or death of
any of the other parties employees or agents.
8.2 Insurance. Both parties hereto shall carry
Comprehensive General Liability Insurance if applicable, and Worker's
Compensation Insurance as required by law. The Comprehensive General
Liability Insurance policy, including premises liability, completed
operations/products if applicable and contractual liability should be for
not less than $1,000,000 in the aggregate.
Section 9. Limitations of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY CLAIM FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, REVENUE OR USE, EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL
APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES.
Section 10. Term and Termination.
10.1 Term. This Agreement shall commence on the
effective Date and shall continue for five years (the "Term") unless earlier
terminated as provided below. This Agreement may be extended for successive
one (1) year periods upon the mutual written agreement of the parties, based
upon the performance by the parties hereto.
10.2 Termination Without Cause. In the event BBAN
terminates all or any part of this Agreement at any time without cause, BBAN
shall provide thirty (30) days written notice and Provider shall be entitled
to its costs already incurred in the performance of the Services. Any
termination claim by Provider must be submitted within thirty (30) days
after the effective date of termination. The provisions of this subparagraph
shall not limit or affect the rights of either party to terminate this
Agreement for cause and shall not apply to a termination for cause.
10.3 Termination With Cause. Should either party
hereto, without contributing fault of the other party, fail to make any
payment, delivery or perform the required Services in accordance with the
agreed upon payment terms, delivery date or schedule or otherwise fail to
make progress so as to endanger performance of this Agreement, either party
shall have ten (10) days to respond to said failure or breach. If the
defaulting party should fail to respond within (10) days of such written
notice, or otherwise fail to provide reasonable cause as to why this
Agreement should not be terminated, either party hereto may immediately
terminate this Agreement upon written notification to the other.
10.4 Consequences of Termination. Upon termination
for Cause of this Agreement, the party found to be in breach will be
reasonable to the other non-breaching party for all costs and expenses,
including a reasonable attorney's fees, incurred by such party due to the
breach of the other party. In addition, BBAN will immediately cease from
using any of the licensed IPR hereunder, and Provider with be entitled to
collect any amounts that are found to be due and owing for serviced rendered
hereunder. Further, both partied hereto will immediately deliver to the
other all documentation, tangible material and anything else embodying
Confidential Information which they have in their possession belonging to
the other party.
Section 11. General.
11.1 Law. This Agreement shall be governed by and
construed in accordance with the laws of Utah without regard to its choice
or conflict of laws provisions. BBAN hereby consents to jurisdiction and
venue in the state of and federal courts sitting the State of Utah. The
parties agree that this Agreement was negotiated in Utah, and that
performance of this Agreement will primarily be in Highland, Utah.
11.2 Entire Agreement. This Agreement and the
Exhibits attached hereto contain the full and complete understanding and
agreement between the parties relating to the subject matter hereof and
supersede all prior and contemporary understandings and agreements, whether
oral or written, relating to such subject matter. Any waiver, modification
or amendment of any provision of this Agreement shall be effective only if
in writing and signed by both parties.
11.3 Notice. Any and all notices permitted or
required to be given hereunder shall be deemed duly given: (i) upon actual
delivery, if delivery is by hand; (ii) upon the third business day after
delivery into the United States mail if the postage is properly prepaid and
delivery is by first class, registered, or certified (return receipt
requested) mail; (iii) upon receipt if by facsimile transmission with
receipt confirmed; or (iv) upon delivery if by overnight courier. Each such
notice shall be sent to the respective parties may designate.
If to BBAN:
Broadband Wireless
International Corporation
0000 Xxxx Xxxxxx
Xxxx., Xxxxx #000
Xxx Xxxxx, Xxxxxx,
00000
Fax: (000) 000-0000
If to the Provider:
WorldVuer, Inc.
0000 Xxxx 00000 Xxxxx
Xxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
11.4 Assignment. This Agreement may not be
assigned, in whole or in part, by either party of this agreement. Any
attempted assignment or delegation without such consent, except, as
expressly set forth herein, will be void. Subject to the foregoing, this
Agreement shall be binding upon shall inure to the benefit of each party
hereto and its respective successors and assigns.
11.5 Business Dispute: Attorneys' Fees. If any
claim or controversy arises out of, or relates to, this Agreement, the
parties shall make a good faith attempt to resolve the matter through their
management. The managers having cognizance of the subject matter of the
Agreement for the party shall first meet and make a good faith attempt to
resolve such controversy by mediation in accordance with the rules of the
American Arbitration Association. Nothing herein however shall prohibit
either party from seeking judicial relief if such party would be
substantially prejudiced by a failure by the other party to act during such
time that such good faith efforts are being made to resolve the claim or
controversy.
11.6 Independent Contractor Status. It is agreed
that each of the parties hereto shall be Independent Contractors and that
this Agreement does not constitute or create a joint venture or agency
between the parties hereto, nor shall either of the parties hold itself out
as such contrary to the terms hereof by advertising or otherwise, nor shall
either party be bound or become liable because of any representation, action
or omission of the other party.
11.7 Waiver. The failure of either party to
enforce, at any time or for any period of time, the provisions hereof, or
the failure of either party to exercise any option herein shall not be
construed as a waiver or such provision or option and shall in no way affect
that party's right to enforce such provisions or exercise such option. No
waiver of any provision hereof shall be deemed effective unless in writing
and signed by the party to be charged therewith and no such waiver shall be
deemed a waiver of any succeeding breach of the same or any other provision
of this Agreement.
11.8 Severability. In the event any provision of
this Agreement us determined to be invalid or unenforceable by ruling of an
appropriate court of competent jurisdiction, the remainder of this Agreement
(and each of the remaining terms and conditions contained herein) shall
remain in full force and effect.
11.9 Captions. Paragraph titles or captions
contained herein are inserted only as a matter of convenience and for
reference.
11.10 Drafter. No party will be deemed the drafter
of this Agreement, both parties acknowledge that they had sufficient time to
have this Agreement reviewed by counsel and this Agreement will be deemed to
have been jointly prepared by the parties. If this Agreement is ever
construed, whether by a court or arbitrator, such court or arbitrator will
not construe this Agreement, or any provision hereof, against any party as
drafter.
11.11 Exhibits. The following exhibits are
incorporated herein by this reference as if fully set forth herein.
Exhibit A FORM OF INDIVIDUAL PROJECT AGREEMENT
11.12 Counterparts. This Agreement may be executed
in one or more counterparts and by exchange of signed counterparts
transmitted by facsimile, each of which shall be deemed an original and all
of which, when taken together, shall constitute one and the same original
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Master Agreement for License as of the Effective Date above.
BBAN Provider
Broadband Wireless
Int'l Corp. World Vuer, Inc.
/s/Xxxxxxx
Xxxxxxxx
/s/ Xxxxxxx Xxxxx
By: Xxxxxxx Xxxxxxxx
By: Xxxxxxx Xxxxx
Its: Chairman, VP
Its: Chairman & CEO