METASwarm (Hongkong) Ltd. Beijing InfoSure Technology Ltd.
Exhibit
10.1
METASwarm
(Hongkong) Ltd.
xxx
Beijing
InfoSure Technology Ltd.
xxx
Software
and Technology Licensed· Contract
Date:
1
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THIS
CONTRACT is entered into on September
28,2006.
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(1)
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METASwarm
(Hongkong) Ltd. (hereinafter "METASwarm HK" or "Licensor"), a domestic
(non-foreign invested) company established under the Law of Hongkong
Special Administration Region of China, with its registered address
at
Unit C, 11th Floor,
Xxxxxxx Commercial Building, 114-118 Xxxxxxxx Road, WanChai,
Hongkong.
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and
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(2)
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Beijing
InfoSure Technology Ltd. (hereinafter "BJ InfoSure" or "Licensee"),
a
domestic company established under the Law of the People's Republican
of
China ("China"), with its registered address at Xxxx 000, Xxxxx X,
Xxx Xxx
Xxxxxxxx, Xx.0 Shangdi Third Street, Haidian District, Beijing,
China.
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The
parties above, each a "Party" and collectively, the
"Parties"
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WHEREAS
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(A)
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METASwarm
Corporation (hereinafter "METASwarm Corp") owns Essurance™ system and
related proprietary technologies, the most advanced Internet,
communication and information management system which comprises of
several
US and International pending
Patents;
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(B)
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METASwarm
HK is the wholly owned subsidiary of METASwarm Corp., and is the
exclusive
licensee of METASwarm's Essurance™ system software and related proprietary
technology in the Asia Pacific region, and is authorized to sub-license
the right to any third parties;
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(C)
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Beijing
BJ InfoSure desires to obtain an exclusive right to use Essurance™ system
software and related technologies for Mainland China market to conduct
related promotion, sales and providing services, as well as carry
out
product localization and development of local applications based
on the
system and technologies;
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(D)
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METASwarm
HK is willing to grant an exclusive right for China market to BJ
InfoSure
to use METASwarm' s Essurance™ system software and related technologies in
accordance with terms and conditions stipulated in this contract,
and
provide the software, related information and necessary technical
trainings, as well as provide support to assist BJ InfoSure developing
China market.
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It
is agreed as follows
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2
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Clause
1
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Definition
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1.1
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In
this Contract:
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Essurance™
system software and related technologies means know-how and experiences,
technology and technical information engaged in the internet, information
supervision, control and management which related to Essurance™ system software
and related technologies and Metaswarm owns or has the right to use and license
as specified in Appendix 1.
Licensed Technology
includes information contained in the Technical
Documentation or conveyed' through the Technical Training rendered under this
Contract and any license operated under any of Licensor's patents in the
Territory only.
System
Software Technical Licensing Fees, means Licensor offer Essurance™ system
English version core software and related technologies to Licensee, and allow
Licensee to localize, modify, re-develop it to adapt to China on this system,
including Licensor offers technical training, continuous technical update and
support to licensee for Fees.
Software
and Technologies Using Fees, means Licensee pay to Licensor from the income
that
is get from allowed localization, re-developing and producing all productions
and service on expanded Essurance™ system ..
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Parties
mean licensee and licensor;
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Party
means licensee or licensor.
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Product
means Essurance™ system, and allowed licensee localizes, re-develop and improve
all product and service on this system.
Technical
Documentation means any technical documentation, training materials or
other documentation provided during Technical Training or from time to time
by
Licensor in the course of providing the Licensed Technology to Licensee under
this Contract related to Essurance™ system.
Technical
Training means the technical training described in
Appendix 1.
Registration
Authority means the relevant Government authority
authorized to register or approve this Contract.
China/China
market, means the territory of the People's Republic of China (Mainland
China), Taiwan, Hongkong and Macau excluded.
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1.2
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In
this contract:
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3
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(a)
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Headings
are inserted for convenience only and shall not affect the construction
of
this Contract;
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(b)
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Words
importing the singular include the plural and vice-versa (only refer
to
English);
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(c)
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References
to clauses, recitals and Appendices are to clauses of, and recitals
and
appendices to this Contract;
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(d)
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The
Appendices form an integral part of this Contract and any reference
to
this Contract shall include the
Appendices.
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Clause
2
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Terms
and Conditions of the
Licensing
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2.1
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Subject
to the terms and conditions of this Contract, Licensor hereby grants
to
Licensee, and Licensee hereby accepts, an exclusive license to use
the
Essurance™ and related Technologies solely in China, for the only purpose
of localization, R&D or improvement on this system to manufacture
products and sales which suit to China
Market.
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2.2
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Licensee
agrees that the Licensed Technology will be only used in China, Licensee
can't use it in other any place.If licesee wants to use it in other
any
place, the licensee should discuss with licensor about this articles
and
terms.
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2.3
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Licensee
shall not grant to any natural or legal person or to any other
nongovernmental or governmental entity any rights or interest in the
Licensed Technology, whether by way of license, sub-license, assignment
or
otherwise, nor shall it permit any such person or entity to use the
Licensed Technology for any
purpose.
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2.4
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Licensee
acknowledges and agrees that, other than the rights expressly granted
under this Contract, it does not hereby acquire and has no right
or claim
to any rights in, or to the use of, any patents, copyrights, technical
documentation, know-how, technical knowledge or other technology
owned,
used or adopted by Licensor or its
affiliates.
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2.5
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Licensor
represents and warrants that it has the legal right to license all
the
Licensed Technology to Licensee in accordance with the terms and
conditions of this Contract.
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Clause
3
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Technical
Training
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4
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3.1
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Licensor
shall provide Technical Training to Licensee in accordance with the
schedule set out by both parties.
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3.2
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If
Licensee requests technical assistance or training in excess of the
time
or number of personnel specified in Appendix 1, the terms and conditions
for any such additional technical assistance or training shall be
separately agreed upon between the
Parties.
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3.3
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Technical
Training shall be provided in the Chinese/English languages. Licensee
shall provide translation and/or interpreters where necessary at
its own
cost. Licensee shall provide qualified engineers and technicians
able to
understand the Technical Documentation and Licensed
Technology.
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3.4
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During
visits to the plants of Licensor or its affiliates, Licensee should
comply
with regulations for the protection of Licensor business and
property.
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3.5
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Licensor
undertakes to provide personnel to provide Technical Training. Licensee
undertakes that the personnel it provides for training and to work
with
Licensor's technicians shall be able to undertake the training or
task
assigned to them.
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Clause
4
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Use
of Essurance™ system, Technology, localization and
improvements
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4.1
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Licensee
shall use Essurance™ and the related Licensed Technologies in accordance
with the required standards specified in the Technical
Documentation.
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4.2
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Licensee
promise to localize Essurance™ system under licensor technical support and
co-operation, and licensee should disclose all localization documentation
to licensor.
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4.3
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Licensee
promise, under licensor technical support and co-operation, according
to
China market and customers requirements to R&D, to develop and
manufacture applied system products and services based on core technology
of the Essurance™ system. Licensee should disclose all processing
documentation to licensor.
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4.4
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Both
Parties agree that rights, title and interest in new products and
services, developed and manufactured by the licensee for the Chinese
market, utilizing and/or in conjunction with licensor Essurance™
technology, will be owned by licensee; but according to this contract
regulation, licensee should pay Licensed Fees from these sales of
products
and services.
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Both
Parties agree that these Licensee rights, title and interests are subject to
the
following conditions/exceptions:
5
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4.41
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All
rights, title, and interest in any and all core technology, trade
secrets,
patents, patented technology, and intellectual properties provided
to
licensee pursuant to this agreement shall be owned solely by
Licensor.
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4.42
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All
rights, title, and interest in any and all Essurance™ system
localizations, derivative technologies, or reverse engineered models
of
all core technology, trade secrets, patents, patented technology,
and
intellectual properties provided to licensee pursuant to this agreement
shall be owned solely by Licensor.
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4.43
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Licensee
undertakes that its employees, contractors, consultants, agents and
other
representatives will assign all rights, title and interest in any
Improvements to Licensor.
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4.5
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If
Licensee determines that Licensor may be able to acquire an industrial
property right such as a patent, design, trademark or copyright in
the PRC
in connection with the Licensed Technology or Technical Documentation,
it
shall advise Licensor and assist Licensor in taking all steps necessary
for the acquisition and enforcement of any such right under the laws
of
the PRC. Licensee shall be reimbursed by Licensor for its reasonable
out-of-pocket expenses incurred in providing such assistance. Licensee
will take no action to obtain any industrial property rights to the
Licensed Technology or Technical Documentation
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Clause
5
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Contract
Conduct and Supervision
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5.1
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Licensor
may, at its own expense and with 5 day's prior notice to Licensee,
send
its employees, representatives and agents to enter the Plant during
normal
business hours in order to examine the use of the Licensed Technology
and
to monitor compliance by Licensee with the terms of this Contract.
However, such examination shall not affect the normal operation of
Licensee and shall comply with the rules and regulations of Licensee.
Such
examination shall be conducted not more than three times in one year
and
the number of persons conducting the examination shall not be more
than 4
persons.
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Clause
6
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Software
and technical Fees, Licensed
Fees
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6.1
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Licensee
should pay software and technical Fees to licensor in accordance
with
following regulations.
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6
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Licensing:
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US$lm
(approx. RMB 8 m.) one-time fee in
installment
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6.11
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US$150,000
down payment within 30 days from the
contract;
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6.12
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Balance
by installments within 12 months after
contract;
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6.2
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Licensee
should pay Licensed Fees to licensor in accordance with following
regulations.
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Royalty
Fee:
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10%
of BJ InfoSure's total revenue;
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6.3
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Payment
of all amounts due hereunder shall be invoiced in United States Dollars,
and paid in US dollars. Licensor shall invoice the Licensee on a
monthly
basis all Licensing Fees payable to Licensor pursuant to Appendix
1.
Payment in full by the Licensee shall be made within thirty (30)
days of
the date of each invoice.
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6.4
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Licensee
shall be obliged to do all that is necessary to obtain any required
government approvals within the PRC for conversion of Renminbi into
United
States Dollars or other freely convertible foreign currency to pay
Licensed Fees and for remittance thereof outside the
PRC.
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6.5
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If
Licensee fail to pay Licensed Fees in accordance with clause 6.1,
Licensee
shall pay Licensor simple daily interest on the unpaid amount from
the due
date until the date payment is made at the rate of fifteen percent
(15%)
per annum.
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Clause
7
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Confidentiality
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7.1
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In
this Clause:
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(a)
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Confidential
Information means any information of a secret or proprietary nature
in
whatever form (written, oral, visual, electronic or otherwise) whether
labeled as confidential or not relating to Licensor or its affiliates
obtained by Licensee hereunder, including but not limited to the
Essurance™ information, the Licensed Technology, the Technical
Documentation and information relating to know-how, proprietary
information and intellectual property rights of Licensor or its
affiliates; data or information about products; marketing and financial
information; information relating to business systems, methods and
practices; and any other relevant information or data of a secret
or
proprietary nature related to Licensor or its affiliates; provided,
however , that the following shall not be
included:
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(i)
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Information
which can be demonstrated as being already in Licensee's possession
at the
time of the signing of this Contract which was not acquired directly
or
indirectly from any third party that disclosed such information in
breach
of any obligation to Licensor or its
affiliates;
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(ii)
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Information
which can be demonstrated as having been received by Licensee after
the
time of the signing of this Contract which was not acquired directly
or
indirectly from Licensor, its affiliates or agents thereof, or from
any
third party that disclosed such information in breach of any obligation
to
Licensor or its affiliates; and
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(iii)
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Information
that is or subsequently becomes publicly available, provided that
such
information was not made publicly available as a result of a breach
of
this Contract or of any obligation to Licensor or its
affiliates.
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(b)
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Permitted
Disclosure means the disclosure of Confidential Information by Licensee
to
its employees on a need to know basis or otherwise where strictly
necessary for the purposes of fulfilling its obligations under this
Contract, provided that the person to whom such Confidential Information
has been properly disclosed (the Recipient) has prior to such disclosure
entered into the Confidentiality Agreement which are attached as
Appendix
2. Licensee shall be solely responsible towards Licensor to ensure
that
such Recipient holds the Confidential Information in confidence in
the
manner provided in this clause.
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7.2
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Except
for Permitted Disclosure, Licensee shall keep the Confidential Information
strictly confidential at all times and shall take all necessary steps
to
prevent disclosure of the Confidential Information to unauthorized
persons.
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7.3
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Confidential
Information may not be reproduced by Licensee in any manner (including
photocopy, translation, publication including trade and technical
papers,
and other recording media) except when and to the extent reasonably
necessary for Licensee to implement the Licensed Technology at the
working
place.
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7.4
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Licensee
shall destroy or return any Confidential Information (including all
reproductions thereof) to Licensor when possession is no longer required
by Licensee.
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Clause
8
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Indemnity
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Licensee
shall defend, indemnify and hold harmless Licensor and its affiliates from
all
losses, damages, claims, suits and expenses of any kind and description,
including without limited to the generality of the foregoing, losses, damages,
claims, suits and expenses arising out of or in connection with property damage,
or personal injury sustained by any person or persons which may result from
or
arise in connection with Licensee's use of the Essurance™ system and the related
Licensed Technology.
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Licensor
shall indemnify and hold harmless of Licensee against any losses, damages,
claims, legal proceedings and expenses suffered by Licensee caused by the
misrepresentation, breach of warranty or breach of covenants of
Licensor.
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Clause
9
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Limitation
of Liability
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9.1
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Licensor
shall not in any event be liable to the Licensee, its affiliates
or their
respective employees, representatives or agents, whether arising
under
contract, infringement of rights, strict liability, product liability,
or
other theory of law, for personal injury, loss of profits, loss by
reason
of enterprise shutdown, non-operation or increased expense of operations,
claims of customers, cost of money, loss of use of capital or revenue,
or
for any special, incidental, indirect or consequential loss or damage
of
any nature arising at any time or from any cause whatsoever in connection
with this Contract, Licensee's use of the Licensed Technology or
production, sale or use of the
Products.
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9.2
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For
any other loss or damage not referred to in clause 10.1, the aggregate
liability of Licensor shall not exceed the total amount of the software,
technical Fee and Licensed Fees actually paid by
Licensee.
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Clause
10
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Infringement
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10.1
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Licensor
shall have the right to enforce any rights in and to the Essurance™ system
and the Licensed Technology at its own cost, and Licensee shall not
xxx or
threaten any third party with a suit relating to such rights. Licensee
shall notify Licensor of any third party that it believes to be infringing
and/or misappropriating any rights in and to the Licensed Technology,
and
shall cooperate in any legal proceedings that Licensor may choose
to bring
in its own name, the name of Licensee or their joint names, provided
that
all reasonable costs and expenses properly incurred in such cooperation
shall be borne by Licensor. Licensor shall be entitled to keep all
monies
recovered from such legal
proceeding.
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10.2
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If
any claim is made or legal proceeding is brought in which it is alleged
that the Licensed Technology is an infringement or misappropriation
of a
third party's right, the following provisions shall apply: (i)
if Licensee receives notice of such claim or proceeding, Licensee
shall
promptly notify Licensor; (ii) Licensor, in all cases, shall have
the
right to defend against any such claim or proceeding and shall have
the
right to maintain complete control of the proceeding (including any
settlement or appeal thereof); (iii) Licensee shall fully cooperate
with
Licensor in the defense of any such claim or proceeding, provided
that all
reasonable costs and expenses properly incurred in such cooperation
shall
be borne by Licensor; (iv) Licensor shall have the option of terminating
that part of the license of the Licensed Technology that is the subject
of
such claim or proceeding, and (v) Licensor may elect at any time
to not
participate in the defense of such claim or proceeding, in which
event
Licensee may maintain complete control of the defense at Licensee's
own
cost.
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9
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Clause
11
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Duration
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This
Contract shall come into force upon execution by both Parties, period of
validity is 10 years, unless terminated under clause 12. The contract could
be
extended for additional 5 years upon expiration subject to mutual agreement
of
both parties. Whether registration with the Registration Authority or not shall
not affect the validity of this contract.
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Clause
12
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Termination
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12.1
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If
a Party fail to perform any of its obligations under this Contract,
it
shall be deemed to have breached this Contract. In such event,
the performing Party (Performing Party) shall notify the Party in
breach
(Breaching Party) in writing that this Contract has been breached
and that
the breach should be remedied within ninety (90) days of the date
of such
notice. If the breach has not been remedied by the end of such
ninety (90) day period, the Performing Party shall have the right
to
terminate this Contract.
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12.2
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This
Contract may be terminated prior to the expiration of its term referred
to
in clause 11:
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(a)
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By
the mutual consent of the Parties as embodied in a written agreement
signed by an authorized representative of each
Party;
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(b)
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By
either Party, with thirty (30) days' prior notice to the other Party,
if
the other Party has a liquidator, liquidation committee or receiver
appointed over all or substantially all of its assets, becomes insolvent
or an event of a similar nature
occurs;
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(c)
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By
either Party forthwith, with notice to the other Party, if the other
Party
ceases to carry on business; or
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10
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(d)
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By
Licensor with thirty (30) days' prior notice to Licensee, if any
of the
following events occurs:
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(i)
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Licensee
has been or is about to be deprived of all or any part of its assets
by
any governmental authority in such a way or with the result that
makes it
difficult for Licensee to operate effectively;
or
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(ii)
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Any
governmental authority having jurisdiction over any Party requires
any
provision of this Contract to be revised in such a way as to cause
substantially adverse consequences to
Licensor.
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Clause
13
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Consequences
of Expiration or Early
Termination
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13.1
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Termination
or expiration of this Contract shall be without prejudice to the
accrued
rights and liabilities of the Parties on the date of
termination.
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13.2
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Upon
the termination or expiration of this Contract, Licensee shall cease
to
use the Essurance™ system, the Licensed Technology and Technical
Documentation and shall return to Licensor the Technical Documentation
and
all reproductions (including electronically stored reproductions),
translations and copies thereof, or, at Licensor's option, present
acceptable evidence that the same have been completely
destroyed.
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13.3
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Articles
2, 4, 7, 8, 9, 10, 11 and 14 shall survive the termination or expiration
of this Contract.
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Clause
14
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Taxes
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14.1
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All
taxes, duties, charges or fees of any nature arising in connection
with
the performance of this Contract that are imposed on Licensee in
accordance with PRC tax laws shall be borne by
Licensee.
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14.2
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All
taxes, duties, charges or fees of any nature arising in connection
with
the performance of this Contract that are imposed on Licensor in
accordance with PRC tax laws shall be borne by Licensor. In the
event that any tax is imposed by means of withholding, Licensee shall
withhold and remit such taxes, on behalf of the Licensor, to the
appropriate tax authorities on a timely basis and provide Licensor
forthwith with the original tax receipt issued by the relevant tax
bureau.
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11
On
September 28, 2006, Licensor and Licensee have caused this Contract to be
executed by their duly authorized representatives.
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METASwarm
(Hongkong) Ltd.
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Beijing
InfoSure Technology Ltd.
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/s/
Xxxxxx Xxxxxxx
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/s/
Ju Hai Feng
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Name:
Xx. Xxxxxx Xxxxxxx
Title:
Chairman and CEO
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Name:
Mr. Ju Hai Feng
Title:
Legal Representative
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12
