Exhibit 2.2
INTERNET ACCELERATOR
ASSIGNMENT AGREEMENT
IA GLOBAL ACQUISITION CO
IA GLOBAL, INC
QUIKCAT AUSTRALIA PTY LTD
CONTENTS
1. DEFINED TERMS AND INTERPRETATION 2
2. GRANT OF IGA LICENCE 2
2.1 ASSIGNMENT IN AND TO FIELD OF USE IN THE INET PROPERTY 2
2.2 RESTRAINT 2
2.3 IGA OWNS ALL OTHER RIGHTS IN THE INET PROPERTY 2
2.4 SHORT FORM INSTRUMENTS OF ASSIGNMENT IN REGISTRABLE FORM 2
2.5 NAMES, TRADE MARKS AND INTELLECTUAL PROPERTY AND COMPETITIVE
PRODUCTS 3
2.6 INTELLECTUAL PROPERTY RIGHTS WARRANTIES 3
2.7 EXCLUSION OF OTHER WARRANTIES 3
3. OPTION 4
3.1 GRANT OF OPTION 4
3.2 EXERCISE OF OPTION 4
3.3 EFFECT OF EXERCISE OF OPTION 4
3.4 QCA TO PERFORM NORTH AMERICAN CONTRACTS FROM THE OPTION
EXERCISE DATE 4
3.5 IGA RESPONSIBLE FOR PERFORMANCE UNDER NORTH AMERICAN
CONTRACTS FOR PERIOD PRIOR TO THE OPTION EXERCISE DATE 4
3.6 NORTH AMERICAN CONTRACTS WARRANTY 5
3.7 TRANSFER OF NORTH AMERICAN CONTRACTS 5
3.8 CONTINUING CONDUCT OF INET BUSINESS 5
3.9 EXERCISE OF OPTION AND USE OF NAMES, TRADE MARKS AND
COMPETITIVE PRODUCTS 5
3.10 DOCUMENTS AVAILABLE AFTER THE OPTION EXERCISE DATE 6
4. SOURCE CODE IN INET PROPERTY AND OTHER CONFIDENTIAL INFORMATION 6
4.1 SOURCE CODE IN AND FOR THE INET PROPERTY 6
4.2 DISCLOSURE REQUIRED BY LAW AND PUBLIC DOMAIN 7
5. QCA INTERNET ACCELERATOR 7
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5.1 QCA DEVELOPMENT PROGRAMME 7
5.2 OWNERSHIP OF QCA DEVELOPMENTS AND QCA INTERNET ACCELERATOR 8
6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES 8
6.1 MUTUAL REPRESENTATIONS AND WARRANTIES 8
7. GENERAL 9
7.1 ENTIRE AGREEMENT 9
7.2 VARIATION
7.3 RELATIONSHIP OF THE PARTIES 9
7.4 FURTHER ASSURANCES 9
7.5 CONSENTS AND APPROVALS 9
7.6 SURVIVAL AND MERGER 9
7.7 SEVERABILITY 10
7.8 WAIVER 10
7.9 CUMULATIVE RIGHTS 10
7.10 ASSIGNMENT, NOVATION AND OTHER DEALINGS 10
7.11 COSTS, EXPENSES AND DUTIES 10
7.12 NOTICES 10
1.2 GOVERNING LAW 12
1.3 JURISDICTION 12
1.4 COUNTERPARTS 12
SCHEDULE ONE - NORTH AMERICAN CONTRACTS 1
ATTACHMENT A - DICTIONARY AND INTERPRETATION
ii
DATED 15 SEPTEMBER 2004
PARTIES
1. IA GLOBAL ACQUISITION CO a corporation organized under the laws of the
State of Delaware of 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000 Xxxxxx Xxxxxx of America (IGA)
2. IA GLOBAL INC a corporation organized under the laws of the State of
Delaware of 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America (IAO)
3. QUIKCAT AUSTRALIA PTY LTD (ABN 82 106 946 043) of 0/00 Xxxxx Xxxxxx,
Xxxxx, Xxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx (QCA)
BACKGROUND
A. In an auction conducted by the United States Bankruptcy Court for the
Northern District of Ohio pursuant to Case No. 03-12179-H, IAO acquired
certain software (including source code) and Intellectual Property
Rights, including, but not limited to, software (including source code)
and Intellectual Property Rights in the QUIKCAT INTERNET ACCELERATOR
(also known as the INET ACCELERATOR) and other relevant code that could
be utilised within or with the QuikCAT Internet Accelerator product,
and the North American Contracts (as defined in this agreement).
B. IAO subsequently transferred to IGA the software (including source
code) and Intellectual Property Rights in the INET Property (as defined
in this agreement) and the North American Contracts.
C. The QUIKCAT INTERNET ACCELERATOR product is marketed by IGA as a two
part server and client based software package, with server code based
upon the Microsoft Advanced Server operating system, that is designed
to enable an end user to accelerate the movement of data to their
personal computer via a browser.
D. QCA proposes to further develop and market the QUIKCAT INTERNET
ACCELERATOR as a as a two part server and client package, with server
code based upon an operating system or platform other than the
Microsoft Advanced Server operating system, that enables an end user to
accelerate the movement of data to their personal computer via a
browser.
E. IGA has agreed to assign to QCA (and by this agreement assigns to QCA)
all Intellectual Property Rights in the INET Property exclusively in,
to and for the Field of Use, but subject to the Restraint.
F. IGA has agreed to grant QCA a certain option to acquire the North
American Contracts and to have the Restraint removed, in accordance
with the terms of this agreement.
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THE PARTIES AGREE
1. DEFINED TERMS AND INTERPRETATION
(a) A term or expression starting with a capital letter which is defined in
the Dictionary in Attachment A (Dictionary), has the meaning given to
it in the Dictionary.
(b) The Interpretation clause in Attachment A (Interpretation) sets out
rules of interpretation for this agreement.
2. GRANT OF IGA LICENCE
2.1 Assignment in and to Field of Use in the INET Property
With effect on and from the date of this agreement IGA as legal and beneficial
owner:
(a) absolutely assigns to QCA all of IGA's Intellectual Property Rights in
the INET Property exclusively in, to and for the Field of Use;
(b) consents to the absolute and unrestricted use by QCA of all
Intellectual Property Rights and moral rights whether now in existence
or created in the future in the INET Property exclusively in, to and
for the Field of Use, subject to the Restraint.
2.2 Restraint
(a) QCA agrees that it will not market any product or service based on or
derived from the INET Property in the United States of America or
Canada during the balance of the life of Intellectual Property Rights
in the INET Property as those Intellectual Property Rights exist as at
the date of this agreement (the Restraint).
(b) The Restraint will cease to operate if the option under clause 3 is
validly exercised by QCA.
2.3 IGA owns all other rights in the INET Property
Subject to the assignment in clause 2.1 (Assignment in and to Field of Use in
the INET Property), all Intellectual Property Rights in the INET Property held
by IGA are and remain the property of IGA.
2.4 Short Form Instruments of Assignment in Registrable Form
When reasonably requested by QCA, IGA must execute (at the reasonable expense of
QCA) any reasonable short form deed or other instrument evidencing or confirming
the assignment of all of IGA's Intellectual Property Rights exclusively in and
to the Field of
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Use in the INET Property as referred to in clause 2.1, as QCA may reasonably
require for the purpose of lodgment with any intellectual property registration
authority in any country.
2.5 Names, Trade Marks and Intellectual Property and Competitive Products
After 1 September 2004, IGA and IAO respectively will stop:
(a) using outside the United States of America and Canada in their
respective businesses trade names or words the same as or resembling
"INET" or "Internet Accelerator" or any other trade names or words
similar to or likely to be mistaken for or confused with "INET" or
"Internet Accelerator";
(b) otherwise using or dealing with any of the Intellectual Property Rights
assigned to QCA under this agreement, except outside the Field of Use;
and
(c) marketing or developing directly or indirectly any product competitive
with or substitutable for the QuikCAT Internet Accelerator (also known
as the Inet Accelerator), other than marketing in the United States of
America and Canada the QuikCAT Internet Accelerator (also known as the
Inet Accelerator) based on the Microsoft Advanced Server operating
system,
and must not permit or assist any other person to do so
AND
(d) IGA and IAO consent to QCA using the name "QuikCAT" as its corporate
name (including that of associates) and with the Internet Accelerator
product, wherever that is marketed in accordance with this agreement.
2.6 Intellectual Property Rights Warranties
(a) IAO warrants to QCA that as at date of this agreement IGA holds all
Intellectual Property Rights in the INET Property formerly held by IAO.
(b) IGA and IAO respectively warrant to QCA that as at date of this
agreement each of IGA and IAO is not aware of any Claim that the INET
Property infringes any person's Intellectual Property Rights.
(c) QCA warrants to IGA and IAO that as at date of this agreement QCA is
not aware of any Claim that the INET Property infringes any person's
Intellectual Property Rights.
2.7 Exclusion of Other Warranties
QCA acknowledges and agrees that the INET Property is taken as is and without
any warranty as to fitness for use, merchantability, or other express or implied
warranty.
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3. OPTION
3.1 Grant of Option
IGA grants QCA an exclusive irrevocable right and option to purchase all of
IGA's rights, benefits and obligations in the North American Contracts,
including the rights to receive any revenue accruing under such agreements from
the date of the option being exercised in relation to performance of obligations
of under the North American Contracts, and to remove the Restraint, in both
cases with effect from the Option Exercise Date (as determined in accordance
with clause 3.2), by payment of the sum of US$213,000 by QCA to IGA (the
Option).
3.2 Exercise of Option
The Option must be exercised, if QCA elects to exercise it, by notice given by
IGA to IAO and accompanied by the payment no later than 28 February 2005. The
date of receipt of payment by QCA will be the Option Exercise Date.
3.3 Effect of Exercise of Option
IGA on the exercise of the Option must execute such documents (prepared at the
expense of QCA) as are reasonably necessary or desirable to perfect the exercise
of the Option and the transactions contemplated by this clause 3 and provide
such further assurances as QCA may reasonably request to give effect to this
clause 3 of this agreement.
3.4 QCA to Perform North American Contracts from the Option Exercise Date
(a) Subject to clause 3.5, QCA is entitled to all benefits and rights and
must perform all obligations arising from the Option Exercise Date
under the North American Contracts as are under the North American
Contracts stated to be obligations of IGA.
(b) Subject to clause 3.5, QCA must indemnify and keep indemnified IGA from
and against any Claim or Liability, including but not limited to any
Claim or Liability arising out of failure to perform any performance
related obligation, under the North American Contracts as arises as and
from the Option Exercise Date in relation to performance of the North
American Contracts as and from the Option Exercise Date.
3.5 IGA Responsible for Performance Under North American Contracts for
Period Prior to the Option Exercise Date
(a) IGA is entitled to all benefits and rights and must perform all
obligations of IGA under the North American Contracts as arise in
relation to any period prior to the Option Exercise Date.
(b) Notwithstanding clause 3.4(b), IGA and IAO respectively must indemnify
and keep indemnified QCA from and against any Claim whenever made or
Liability
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whenever arising if that Claim or Liability arises out of the operation or
performance of IGA under the North American Contracts in relation to any period
prior to the Option Exercise Date.
3.6 North American Contracts Warranty
(a) IGA warrants to QCA that as at date of this agreement IGA is not aware
of any Claim or any Liability whenever arising out of the operation or
performance of IGA under the North American Contracts in relation to
any period prior to the Option Exercise Date. IGA will promptly advise
QCA if at any time subsequent to the date of this agreement any such
Claim is made by any person and as to the nature of that Claim and as
to any action that IGA takes in relation to any such Claim.
3.7 Transfer of North American Contracts
(a) transfer as soon as possible: On or as soon as possible after the
Option Exercise Date, IGA must transfer the North American Contracts to
QCA.
(b) assignment or novation: The transfer may be by assignment or by
novation, at the QCA's reasonable election.
(c) consents: IGA must use its best efforts to obtain any consent of a
third party required for the assignment or novation, but IGA shall not
be responsible for or required to make any payment to any party in
connection with attempting to obtain such consents and IGA shall have
no liability to QCA as a result of the failure of any party to grant
consents to assignment or novation.
3.8 Continuing Conduct of iNet Business
IGA must at its own cost promptly refer to QCA each enquiry IGA receives in
relation to the INET Property that is within the Field of Use, subject to the
Restraint, and any query that otherwise relates to performance of the North
American Contracts in the period subsequent to the Option Exercise Date.
3.9 Exercise of Option and Use of Names, Trade Marks and Competitive
Products
After the Option Exercise Date, IGA and IAO respectively will stop:
(a) using words or trade names in their respective businesses in the United
States of America or Canada the same as or resembling "INET" or
"Internet Accelerator" or any other words or trade names similar to or
likely to be mistaken for or confused with "INET" or "Internet
Accelerator"; and
(b) marketing or developing directly or indirectly in the United States of
America and Canada the QuikCAT Internet Accelerator (also known as the
Inet Accelerator) based on the Microsoft Advanced Server operating
system, and must not permit or assist any person to do so.
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3.10 Documents available after the Option Exercise Date
As soon as possible after the Option Exercise Date and subject to clause 3.7(c),
IGA must provide to QCA:
(a) contracts: any assignments or novations of the North American Contracts
and related consents obtained by IGA, as and when they become available
to IGA;
(b) receivables and contract management information: access to original
invoices and debtors statements relating to North American Contracts as
is reasonably necessary for QCA to collect receivables and administer
the North American Contracts; and
(c) other documents: all other documents about the North American Contracts
which QCA reasonably requests and QCA will reasonably need in order to
collect receivables and administer the North American Contracts or to
comply with its obligations under the North American Contracts.
4. SOURCE CODE IN INET PROPERTY AND OTHER CONFIDENTIAL INFORMATION
4.1 Source code in and for the INET Property
(a) The parties acknowledge that QCA has been provided with source code in
and for the INET Property and that pursuant to the assignment in clause
2.1(a) QCA is entitled to access and use source code in and for the
INET Property within the Field of Use as QCA sees fit.
(b) IGA and IAO respectively acknowledge that the value of the INET
Property is dependant upon non-disclosure of the source code in and for
the INET Property and that any disclosure of source code in and for the
INET Property by IGA or any person for whom IGA is responsible would
cause QCA substantial damage.
(c) IGA and IAO respectively agree that pursuant to the assignment in
clause 2.1(a) of this agreement, source code in and for the INET
Property within the Field of Use is and will be Confidential
Information of QCA and that source code in and for the INET Property
must not be disclosed for use within the Field of Use by to any person
by IGA or IAO or any person for whom IGA or IAO respectively is
responsible.
(d) Where QCA or IGA intend to disclose source code to a third party, other
than a party referred to in clause 4.2, they must provide reasonable
notice to the other party of this intent and a brief explanation of why
such disclosure will not breach their respective obligations under this
agreement, specifically clause 4.1(c).
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4.2 Disclosure required by law and public domain
The obligations in clause 4.1(c) do not apply:
(a) to the extent necessary to enable IGA or IAO to make any disclosure
required by law;
(b) to the extent necessary to enable IGA or IAO to perform their
obligations under this agreement by disclosing the Confidential
Information to any officer, employee, agent or adviser of IGA or IAO,
provided that IGA or IAO ensures that person maintains the
confidentiality of the Confidential Information;
(c) to any disclosure agreed between the parties; or
(d) where a portion of the Confidential Information has entered the public
domain other than as a result of a breach by IGA or IAO of this
agreement, in relation to that portion of the Confidential Information
that has entered into the public domain.
5. QCA INTERNET ACCELERATOR
5.1 QCA Development Programme
(a) Without limiting clause 2.1, the parties acknowledge QCA's intention to
use the source code in the INET Property to develop, market, sell and
distribute an internet accelerator software product adapting the INET
Property and incorporating QCA Developments (the QCA Internet
Accelerator).
(b) As QCA determines and at QCA's discretion and expense, QCA will
determine its work and release programme for development and
modification of the INET Property for the purpose of development and
exploitation of the QCA Internet Accelerator.
(c) IGA will, subject to availability, at the request of QCA and in
accordance with development priorities as determined by QCA in
consultation with IGA, use reasonable commercial endeavours to make IGA
personnel (Consultants) available to QCA, on a consultancy basis in
accordance with paragraph (e) below, to assist QCA in development,
modification, customisation, enhancement and tailoring the INET
Property and undertaking the QCA Developments.
(d) IGA will permit all Consultants to assign to QCA all Intellectual
Property Rights (including future copyright) in any work created for
QCA or created in connection with the INET Property, the QCA
Developments or the QCA Internet Accelerator in accordance with this
agreement, including each stage of design and construction of any QCA
Developments and the QCA Internet Accelerator.
(e) Consultants will work to the direction of QCA and IGA will not have any
responsibility for or rights in their work output in the course of the
consultancy.
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The terms of engagement of Consultants will otherwise be as agreed between QCA
and IGA but consistent with standard consultancy terms of QCA and otherwise on
such terms as the parties may from time to time agree and subject to paragraph
(f), at rates equal to IGA's direct cost (i.e., QCA will pay IGA a consultancy
fee equal to the salary cost of each Consultant that QCA utilises from time to
time, and a minimal office overhead fee). IGA will not be responsible for the
performance of the Consultants. QCA will indemnify IGA for any and all costs or
damages incurred by QCA or any third party resulting from the performance of the
Consultants.
(f) Notwithstanding paragraph (e), there will be no charge by IGA to QCA in
relation to the services of Consultants providing services to QCA as
contemplated in this clause 5.1 during the calendar months September
and October 2004.
5.2 Ownership of QCA Developments and QCA Internet Accelerator
All Intellectual Property Rights in any QCA Developments, whether or not
adaptations or modifications of the INET Property within the Field of Use, and
in the QCA Internet Accelerator, vest in QCA upon creation, whether created by
QCA, any Consultant on behalf of IGA or QCA, IGA, or a third party.
6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES
6.1 Mutual representations and warranties
Each party warrants and represents to each other party that as at the date of
this agreement:
(a) incorporation: it is a corporation having limited liability,
incorporated and registered and validly existing under the laws of its
jurisdiction of incorporation;
(b) capacity: it has full power and capacity to enter into and perform its
obligations under this agreement;
(c) authorisations: all necessary action has been take to authorise its
execution, delivery and performance of this agreement in accordance
with its terms;
(d) binding obligations: this agreement constitutes its legal, valid and
binding obligations and this agreement is enforceable in accordance
with its terms; and
(e) transaction permitted: the execution, delivery and performance of this
agreement by it does not and will not violate, breach, or result in the
contravention of:
(i) any law, resolution or authorisation; or
(ii) its constitution or articles of association.
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7. GENERAL
7.1 Entire Agreement
(a) This agreement is the entire agreement between the parties about its
subject matter and replaces all previous agreements, understandings,
representations and warranties about that subject matter.
(b) Each party represents and warrants that it has not relied on any
representations or warranties about the subject matter of this
agreement except as expressly provided in this agreement.
7.2 Variation
No variation of this agreement is effective unless made in writing and signed by
each party.
7.3 Relationship of the parties
Except as expressly provided in this agreement:
(a) nothing in this agreement is intended to constitute a fiduciary
relationship or an agency, partnership or trust; and
(b) no party has authority to bind any other party.
7.4 Further Assurances
Except as expressly provided in this agreement, each party must, at its own
expense, do all things reasonably necessary to give full effect to this
agreement and the matters contemplated by it.
7.5 Consents and Approvals
Except as expressly provided in this agreement, a party may conditionally or
unconditionally in its absolute discretion give or withhold any consent or
approval under this agreement.
7.6 Survival and Merger
(a) No term of this agreement merges on completion of any transaction
contemplated by this agreement.
(b) Clauses 2, 3, 4, and 5 and this clause 7 survive termination or expiry
of this agreement together with any other term which by its nature is
intended to do so.
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7.7 Severability
Any term of this agreement which is wholly or partially void or unenforceable is
severed to the extent that it is void or unenforceable. The validity or
enforceability of the remainder of this agreement is not affected.
7.8 Waiver
(a) No waiver of a right or remedy under this agreement is effective unless
it is in writing and signed by the party granting it. It is only
effective in the specific instance and for the specific purpose for
which it is granted.
(b) A single or partial exercise of a right or remedy under this agreement
does not prevent a further exercise of that or of any other right or
remedy. Failure to exercise or delay in exercising a right or remedy
under this agreement does not operate as a waiver or prevent further
exercise of that or of any other right or remedy.
7.9 Cumulative Rights
Except as expressly provided in this agreement, the rights of a party under this
agreement are in addition to and do not exclude or limit any other rights or
remedies provided by law.
7.10 Assignment, Novation and Other Dealings
A party must not assign or novate this agreement or otherwise deal with the
benefit of it or a right under it, or purport to do so, without the prior
written consent of each other party which consent is not to be unreasonably
withheld.
7.11 Costs, Expenses and Duties
(a) Each party must pay costs and expenses of negotiating, preparing and
executing this agreement and any other instrument executed under this
agreement.
(b) QCA must pay any stamp duty payable on this agreement and any other
instrument executed under this agreement.
7.12 Notices
(a) A notice, consent or other communication under this agreement is only
effective if it is:
(i) in writing and in legible English, signed by or on behalf of
the party giving it;
(ii) addressed to the party to whom it is to be given; and
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(iii) either:
A. sent by pre-paid mail (by airmail, if the addressee
is overseas) or delivered to that party's address; or
B. sent by fax to that party's fax number.
(b) Subject to paragraph (c) a notice, consent or other communication under
this agreement is, in the absence of earlier receipt, regarded as given
and received:
(i) if it is delivered, on delivery at the address of the relevant
party;
(ii) if it is sent by fax at the time and on the day it was
successfully sent; or
(iii) if it is sent by mail, on the seventh day after the day of
posting.
(c) If a notice, consent or other communication under this is given and
received on a day that is not a business day in the place of receipt or
after 5.00 pm (local time in the place of receipt) on a business day in
the place of receipt, it is regarded as being given and received at
9.00 am on the next business day in the place of receipt.
(d) For the purposes of this clause, a party's address and fax number are
those set out below: If IGA or IAO:
Attn.: Xxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
United States of America
Telephone No.: + (000) 000-0000
Facsimile No.: + (000) 000-0000
[Email: xxxxx@xxxxxxxxxxx.xxx]
If QCA:
Attn.: Xxxx Xxxxxxx
0/00 Xxxxx Xxxxxx
Xxxxx XX 0000
Xxxxxxxxx
Tel 00 0000 0000
Fax 00 0000 0000
[Email: xxx@xxxxxxx.xx.xxx]
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1.2 Governing Law
This agreement is governed by the laws of the State of Delaware, United States
of America, without regards to conflicts of laws principles.
1.3 Jurisdiction
Each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of the State of Delaware, United States of America.
1.4 Counterparts
This agreement may be executed in any number of counterparts, each of which,
when executed, is an original. Those counterparts together make one instrument.
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IN WITNESS WHEREOF each of the parties hereto executes this Agreement as of the
date first set forth above.
SIGNED AND DELIVERED by IA GLOBAL ACQUISITION CO
by:
/s/ Xxxx Xxxxxxxxxx
--------------------------------
Signature of Director and Authorised
Signatory
XXXX XXXXXXXXXX
SIGNED AND DELIVERED by IA GLOBAL INC
by:
/s/ Xxxx Xxxxxxxxxx
---------------------------------
Signature of Director and Authorised
Signatory
XXXX XXXXXXXXXX
SIGNED AND DELIVERED by QUIKCAT AUSTRALIA PTY LTD
by:
/s/ Xxxx Xxxxxxx
-------------------------------
Signature of Director and Authorised
Signatory XXXX XXXXXXX
Signing Page 1
SCHEDULE ONE - NORTH AMERICAN CONTRACTS
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To be provided by IGA
Schedule 1 Page 1
ATTACHMENT A
DICTIONARY AND INTERPRETATION
(CLAUSE 1)
1. DICTIONARY
In this agreement words defined in provisions of this agreement have the meaning
given to those words in those provisions and as well:
CLAIM means a claim, demand, action, proceeding, judgment, damage, loss, cost,
expense or liability (direct and indirect) incurred by or to be made by a
person, howsoever arising and whether past, present, unascertained, immediate,
future or contingent.
FIELD OF USE means development, marketing and commercialisation of a product in
the form of a two part server and client based software package that is designed
to enable an end-user to accelerate the movement of data across a network
environment, whether LAN, WAN or public network or any other transport method,
to their PC via a browser or similar application which may replace the browser
in the future. The product may also enable an end user to accelerate the
movement of emails or attachments to and from their PC. The product must not be
a package based on server-client architecture where the server code is based on
the Microsoft Advanced Server operating system.
INTELLECTUAL PROPERTY RIGHTS means all industrial and intellectual property
rights of whatever nature anywhere in the world, conferred under statute, common
law or equity, including all copyrights and includes rights to apply for or
renew any registration of such rights, patents and patent registration rights,
trade xxxx rights, design rights, know-how, business/trade/domain names and
trade secrets.
INET PROPERTY means all Intellectual Property Rights in and to (i) US Patent
6,449,658 B1 dated September 10, 2002 and all developments thereto and workings
thereof whenever occurring prior to the date of this agreement and corresponding
patent rights and patent registration rights around the world, including the
working of that patent and (ii) the software (and all developments thereto) and
including source code which IAO acquired in an auction pursuant to the United
States Bankruptcy Court for the Northern District of Ohio, Case No. 03-12179-H
and subsequently transferred to IGA, constituting the product known as QUIKCAT
INTERNET ACCELERATOR as it is now developed and applied and other relevant code
that could be ultilised within or with the QuikCAT Internet Accelerator product,
which software is the software (including source code) as embedded in the
optical media marked for identification "INET Property - Verification Copy as at
12 September 2004", an identical copy of which is held by IGA and QCA.
LIABILITY means all actions, proceedings, accounts, rights, claims, demands,
liabilities, costs, losses and expenses of whatsoever nature, whether arising
before or after the date of this agreement and whether actual, contingent or
otherwise.
NORTH AMERICAN CONTRACTS means the contracts listed in Schedule One - NORTH
AMERICAN CONTRACTS.
Attachment A, Page 1
QCA DEVELOPMENTS means all programs, software, developments, adaptations,
modifications, customisations or enhancements of the INET Property developed by
QCA as may be made for the benefit of QCA from time to time pursuant to this
agreement.
INTERPRETATION
In this agreement the following rules of interpretation apply unless the
contrary intention appears.
(a) Headings are for convenience only and do not affect the interpretation
of this agreement.
(b) The singular includes the plural and vice versa.
(c) Words that are gender neutral or gender specific include each gender.
(d) Where a word or phrase is given a particular meaning, other parts of
speech and grammatical forms of that word or phrase have corresponding
meanings.
(e) The words 'such as', 'including', 'particularly' and similar
expressions are not used as nor are intended to be interpreted as words
of limitation.
(f) A reference to:
(i) a person includes a natural person, partnership, joint
venture, government agency, association, corporation or other
body corporate;
(ii) a thing (including but not limited to a chose in action or
other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to that
document;
(v) a clause, term, party, schedule or attachment is a reference
to a clause or term of, or party, schedule or attachment to
this agreement;
(vi) this agreement includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree,
convention, statute, regulation, ordinance, by-law, judgment,
rule of common law or equity and is a reference to that law as
amended, consolidated or replaced;
Attachment A, Page 2
(viii) an agreement other than this agreement includes an
undertaking, or legally enforceable arrangement or
understanding whether or not in writing.
(g) An agreement on the part of two or more persons binds them jointly and
severally.
(h) In determining the time of day where relevant to this agreement, the
relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of
day where a party receiving a notice is located; or
(ii) for any other purpose under this agreement, the time of day in
the place where the party required to perform an obligation is
located.
(i) No rule of construction applies to the disadvantage of a party because
that party was responsible for the preparation of this agreement or any
part of it.
Attachment A, Page 3
