TECHNOLOGY LICENSE AGREEMENT
THIS TECHNOLOGY LICENSE AGREEMENT (the "Agreement"), dated April 18 , 2003
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(the "Effective Date"), is by and between ADVOCAST, Inc., a Delaware corporation
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with its principal place of business at 0000 Xxxxxxxxxxx Xxxxxx XX, Xxxxx 000,
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Xxxxxxxxxx, X.X. 00000 ("Licensor"), and AIMS Worldwide, Inc. , a Delaware
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corporation with a principal place of business at 00000 Xxxxx Xxxxx , Xxxxxxx,
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XX 00000 ("Licensee").
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RECITALS:
A. Licensor is the creator and owner of certain Software and Technology
(as more fully defined below), and has the right to grant a license to
use, modify, copy, market, license and sell the Software, Software
Services and Technology.
B. Licensor agrees to grant Licensee a License of Advocast's Private
Communication Infrastructure (A-PCI) and Licensee agrees to pay
Licensor 500,000 shares of Licensee's Common Stock for the License of
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Advocast's Private Communications Infrastructure. Licensor will
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register said common stock at its earliest convenience, not to surpass
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one year from the date of this Agreement.
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C. In light of the foregoing, Licensor desires to grant Licensee a fully
paid up, perpetual, non-exclusive, worldwide license to use, market,
and sell any and all technology services, products or know-how of
Licensor, and a 3 (three) year exclusive worldwide license to use,
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market, and sell any and all technology services, products or know-how
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of Licensor, on the terms and conditions set forth in this Agreement.
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Exclusivity to be re-assessed at the end of 3 (three) years from the
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date of this Agreement.
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AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
warranties set forth herein, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. GENERAL DEFINITIONS.
1.1 "Software Services" means Licensor's Application Service Provider
(ASP), Web-based, Advocast Private Communications Infrastructure (A-PCI)
software system.
1.2 "Derivative Work" means, with respect to any Websites or electronic
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communities created by the Technology.
1.3 "Sale" or "sell" means, with respect to the use of the Technology to
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sell Websites and marketing communication infrastructure systems to the
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Licensor's customers or franchisees. Sale or sell shall in no event mean sale of
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ownership of the intellectual property rights with respect to the Technology.
"Technology" means all existing software, the Web Sites the software system
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produces, and all other technology and materials related to authoring Websites
or developing electronic communication infrastructures.,
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1.4 "Web Site Materials" means the text, logos, structure and materials
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contained in Licensor's web site located at xxx.xxxxxxxx.xxx.
2. LICENSE.
License Grant. Subject to the terms and conditions of this Agreement and for
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good and valuable consideration as set forth in Recital B above, the receipt and
sufficiency of which is hereby acknowledged, Licensor hereby grants to Licensee,
and Licensee hereby accepts, an exclusive license within the NAIC Group ID Code
of 541 for a period of 3 (three) years (and a re-assessment of exclusivity at
the end of 3 (three) years from the date of this Agreement), and a perpetual,
royalty-free, fully paid-up, non-exclusive worldwide license to the Technology,
under Licensor's copyright, trademark and service xxxx (other than the service
marks excluded under Section 2.2 below), to market, and sell the Technology and
Derivative Works thereof. Distribution and sale rights under this Agreement may
be exercised by Licensee and its designees.
2.1 Trademarks and Service Marks. The foregoing license excludes any
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license or right to use the names and service marks "Advocast" or "Xxxxxxxx.xxx"
or the circular logo related thereto, as described and shown in U.S. Trademark
Registration Nos. 2307095 and 2341268. However, the license set forth in Section
2.1 is inclusive of the right to use "private communications infrastructure",
tag lines, logos, product and feature names and marks, and other service marks
and trademarks used in connection with the Technology, except as set forth
above.
2.2 Web Site Materials. With respect to the Web Site Materials, the
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license set forth in Section 2.1 includes the right to utilize the Web Site
Materials (or Derivative Works thereof) in any web sites produced, owned or
authorized by Licensee, in any advertising and marketing materials (in printed,
electronic or other format), and in any other manner of usage deemed appropriate
by Licensee, subject to the limitations set forth in Section 2.2 above.
2.3 2.4.Modifications and Derivative Works Developed by Licensor. To
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the extent that Licensor develops or creates (or has developed or created) any
Derivative Work of the Technology, including: (i) any improvements and additions
to and new versions of the Technology, or (ii) any materials or documents that
utilize or are derived from the Technology, all right, title and interest in and
to such Derivative Works (together with any and all corresponding intellectual
property rights) shall be solely owned by Licensor.
2.4 Proprietary Rights. Licensee acknowledges the proprietary rights
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and title of Licensor in the Technology, Derivative Works created by Licensor,
and related trademarks, service marks, copyrights and other intellectual
property rights in such materials, including the goodwill pertaining thereto.
3. DELIVERABLES.
1. As soon as practicable after the Effective Date, Licensor shall meet with
the Licensee, review Licensee's site needs and requirements and deliver to
Licensee the Software System required to build web-sites and Private
Communications Infrastructures.
4. WARRANTIES.
1.1 Corporate Power, Etc. Licensor hereby represents, warrants, and
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covenants to Licensee that (a) Licensor has all necessary right and power to
enter into and perform according to the terms and conditions of this Agreement;
(b) all corporate action on the part of Licensor, its directors and its
stockholders necessary for the authorization, execution, delivery and
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performance of this Agreement and any other agreements contemplated hereby has
been taken; (c) the terms of this Agreement do not violate or conflict with any
other agreement or obligation of Licensor; and (d) this Agreement is a valid and
binding agreement on Licensor, enforceable in accordance with its terms.1.1
4.1 Litigation. There is no action, suit, investigation, or other
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proceeding pending or, to Licensor's knowledge, threatened against or materially
adversely affecting the Technology or Licensor's right and ability to consummate
the transactions contemplated by this Agreement4.1
4.2 Infringement. Licensor warrants that the Technology and elements
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thereof are solely owned by Licensor and do not violate any copyright, trade
secret, trademark, patent or other personal or proprietary rights of any third
party, and that Licensor has not received any notice of such a claim. There are
no existing, pending or, to Licensor's knowledge, threatened claims of
infringement, misappropriation or disputed ownership by any third party relating
to the Technology and, to Licensor's best knowledge, there is no basis for any
such claim. To Licensor's best knowledge, no third party is infringing or has
infringed the intellectual property rights with respect to the Technology.
4.3 Survival. The representations, warranties and covenants contained
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in or made pursuant to this Agreement shall survive execution and any
termination of this Agreement.
4.4 Limitation of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE,
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NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO ITS SOFTWARE, TECHNOLOGY, INTELLECTUAL
PROPERTY OR ITS DERIVATIVE WORKS THEREOF, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Indemnification. Licensor will indemnify and hold harmless Licensee and
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its officers, directors, agents, attorneys and employees (hereinafter referred
to individually as an "Indemnified Person" and collectively as "Indemnified
Persons") from and against any and all losses, costs, damages, liabilities and
expenses arising from claims, demands, actions, causes of action, including,
without limitation, legal fees (collectively, "Damages") arising out of any
misrepresentation or breach of or default in connection with any of the
representations, warranties, covenants and agreements given or made by Licensor
in this Agreement (including defense of any third party claim that, if true,
would constitute such a misrepresentation, breach or default). 5.
5.1 Resolution of Conflicts and Arbitration.
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a) In case Licensor shall so object in writing to any claim or claims
by Licensee made in any Officer's Certificate, Licensee shall have thirty
(30) days to respond in a written statement to the objection of Licensor.
If after such thirty (30) day period there remains a dispute as to any
claims, Licensor and Licensee shall attempt in good faith for thirty (30)
days to agree upon the rights of the respective parties with respect to
each of such claims. a)
b) If no such agreement can be reached after good faith negotiation,
either Licensee or Licensor may, by written notice to the other, demand
arbitration of the matter unless the amount of the damage or loss is at
issue in pending litigation with a third party, in which event arbitration
shall not be commenced until such amount is ascertained or both parties
agree to arbitration; and in either such event the matter shall be settled
by arbitration conducted by one arbitrator. Licensee and Licensor shall
agree on the arbitrator, provided that if Licensee and Licensor cannot
agree on such arbitrator, either Licensee or Licensor can request that the
American Arbitration Association select the arbitrator. The arbitrator
shall set a limited time period and establish procedures designed to reduce
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the cost and time for discovery while allowing the parties an opportunity,
adequate in the sole judgment of the arbitrators, to discover relevant
information from the opposing parties about the subject matter of the
dispute. The arbitrator shall rule upon motions to compel or limit
discovery and shall have the authority to impose sanctions, including
attorneys' fees and costs, to the same extent as a court of competent law
or equity, should the arbitrator determine that discovery was sought
without substantial justification or that discovery was refused or objected
to without substantial justification. The decision of the arbitrator shall
be written, shall be in accordance with applicable law and with this
Agreement, and shall be supported by written findings of fact and
conclusion of law, which shall set forth the basis for the decision of the
arbitrator. The decision of the arbitrator as to the validity and amount of
any claim in such Officer's Certificate shall be binding and conclusive
upon the parties to this Agreement..
c) Judgment upon any award rendered by the arbitrator may be entered
in any court having jurisdiction. Any such arbitration shall be held in
Washington, DC under the commercial rules then in effect of the American
Arbitration Association. .
5.2 Third-Party Claims. If Licensee becomes aware of a third-party claim
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which Licensee believes may result in a demand against the Software Service
contract, Licensee shall notify Licensor of such claim, and Licensor shall be
entitled, at its expense, to participate in any defense of such claim. Licensee
shall have the right in its sole discretion to settle any such claim5.2
6. LIMITATION OF DAMAGES. IN NO EVENT SHALL LICENSOR OR LICENSEE BE LIABLE
AND EACH PARTY COVENANTS NOT TO BRING ANY CLAIM FOR SPECIAL OR CONSEQUENTIAL
DAMAGES OR FOR ANY INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION EXEMPLARY
DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN.
7. CONFIDENTIAL INFORMATION.
7.1 Definition. "Confidential Information" means non-public software,
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technology and business information, business and marketing plans and
strategies, trade secrets, customer lists, any written materials marked as
confidential and any other information, including visual or oral information,
which reasonably should be understood to be confidential. Confidential
Information does not include information that a party can prove: (a) is now or
later becomes generally available to the public without fault of the party who
received such information ("Recipient") from the other party ("Discloser"); (b)
was rightfully in Recipient's possession prior to its disclosure by Discloser;
(c) is independently developed by Recipient without the use of any Confidential
Information of Discloser; or (d) is obtained by Recipient without obligation of
confidentiality from a third party who has the right to disclose it.
Additionally, a disclosure of Confidential Information that is (x) in response
to a valid order by a court or other government body, (y) required by law, or
(z) necessary to establish the rights of either party hereunder, shall not be
considered to be a breach of this Agreement.
7.2 Use and Disclosure. Recipient shall not disclose to any person or
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use for any purpose, except as expressly permitted by this Agreement or other
written agreement signed by Discloser, any Confidential Information of
Discloser. Recipient may disclose Confidential Information only to its
employees, independent contractors and advisors who need to know such
information, and who are bound to keep such information confidential. Recipient
shall give Discloser's Confidential Information at least the same level of
protection as it gives its own Confidential Information of similar nature, but
not less than a reasonable level of protection. Recipient shall maintain
Confidential Information in a safe and secure place and shall not copy
Confidential Information except to the extent necessary for the purposes of this
Agreement. All confidentiality obligations shall survive for five (5) years from
the date of disclosure, except that confidentiality obligations with respect to
any source code shall survive for twenty (20) years from the date the
Confidential Information was disclosed to Recipient.
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7.3 Injunctive Relief. Each party, as Recipient, acknowledges that
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Discloser's Confidential Information is highly valuable to Discloser, that any
breach of Recipient's confidentiality obligations with respect thereto may
severely damage Discloser, and that monetary damages may not be a sufficient
remedy for such breach, and, therefore, that Discloser is entitled, among any
other available remedies, to seek immediate injunctive and other equitable
relief for any such breach.
8. MARKETING.
8.1 Branding; Copyright and Trademark Use. The parties agree that
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Licensee shall private-label the Software Service and other Technology as
products of Licensee, using Licensee's own brand names, trademarks and service
marks. Product packaging and documentation for the Software shall also be
designed and produced by Licensee, at its sole discretion. However, Licensee
shall include, subject to Licensor's approval as to form, appropriate copyright
and trademark notices of Licensor in the documentation for the Technology.
9. BREACH OF AGREEMENT. If either party believes that the other has
materially breached any provision of this Agreement, the party alleging the
breach shall deliver notice to the other party, specifying the nature of the
alleged breach. The party alleged to be in breach shall have thirty (30) days
from the date of mailing of such notice in which to attempt to cure the alleged
breach. During such thirty (30) day period, either party may request a personal
meeting between the parties in which to negotiate in good faith to attempt to
resolve the dispute. If such negotiations are unsuccessful and the alleged
breach has not been cured by the end of such thirty (30) day period, the party
alleging the breach may pursue any and all rights and remedies that it has under
this Agreement, at law or in equity, in any judicial or arbitration proceedings.
10. MISCELLANEOUS.
10.1 No Other Agreement. This Agreement contains the full and entire
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agreement between the parties with respect to its subject matter. No
modification or amendment of this Agreement shall be valid unless in writing and
signed by both parties hereto.
10.2 Force Majeure. Either party shall be excused from delays in
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performing or from any failure to perform any of its duties under this Agreement
to the extent such delays or failures result from causes beyond the reasonable
control of such party; provided, however, that in order to be excused from any
such delay or failure, such party must promptly notify the other of the delay
and its cause and must diligently act to mitigate such delay to the extent
reasonably possible.
10.3 Assignment. The benefits of this Agreement shall inure to and be
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binding upon the successors and assigns of both parties.
10.4 Notice. All notices and requests in connection with this
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Agreement shall be given in writing and may be given by registered or certified
mail, commercial delivery service, facsimile or other customary means of written
communication, delivered to the addresses set forth above or to such other
address as the party to receive the notice or request shall designate by notice
to the other party. The effective date of any notice or request given in
connection with this Agreement shall be the date on which it is received by the
addressee.
10.5 Choice of Law. This Agreement shall be governed by and
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interpreted in accordance with the laws of the State of Delaware, without regard
to conflicts of laws provisions.
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10.6 Attorneys' Fees. In any legal action arising out of or related to
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this Agreement, the prevailing party shall be entitled to an award of its
reasonable costs and attorneys' fees.
10.7 Waiver. Any waiver by a party of any covenant, condition or
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obligation of the other party must be in writing and signed by the party
asserted to have made the waiver, and any such waiver shall not be construed to
be a waiver of any subsequent breach. No failure to exercise any right or power
under this Agreement or to insist on strict compliance by the other party shall
constitute a waiver of the right in the future to exercise such right or power
or to insist on strict compliance.
10.8 Severability. If any term of this Agreement is held invalid or
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unenforceable by a court or arbitrator of competent jurisdiction, such term
shall be reduced or otherwise modified by such court or arbitrator to the
minimum extent necessary to make it valid and enforceable. If such term cannot
be so modified, it shall be severed and the parties agree to negotiate in good
faith a replacement term that approximates, to the maximum extent that is legal
and valid, the original intent of the deleted provision.
10.9 Rights Reserved. Licensee shall have the right, in its sole
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discretion, to market (or not market) the Technology in any manner and under any
name Licensee chooses. Nothing in this Agreement shall impair Licensee's right
to acquire, license, independently develop for itself or have others
independently develop for it similar products performing the same or similar
functions as the Technology.
10.10 Relationship of Parties. Licensor and Licensee are acting
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hereunder as independent contractors and this Agreement shall not be construed
as authority for either party to act for the other party in any agency or other
capacity or to make commitments of any kind for the account of, or on behalf of,
the other party, except to the extent, and for the purposes, expressly provided
for and set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the Effective Date.
ADVOCAST, INC. ("LICENSOR") AIMS WORLDWIDE, INC. ("LICENSEE")
By:/s/Xxxxx X. Xxxxxx By: /s /Xxxxxxx Xxxxx
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Xxxxx X. Xxxxxx Xxxxxxx Xxxxx
Title: President and CEO Title: Chairman
Date: April 18, 2003 Date: April 18, 2003
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