AGREEMENT made November, 1999
PARTIES XXXXXXXXXXXX.XXX INC.
a corporation organised and existing pursuant to the laws of the
State of Delaware, with principal offices at 00 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Activeworlds")
AND ADVANCED SHOPPING CENTRE MANAGEMENT PTY LIMITED
ACN 060 672 290
a limited company existing pursuant to the laws of New South Wales,
with principal offices at Xxxxx 00, 0 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx
XXX 0000, Xxxxxxxxx ("ASCM")
INTRODUCTION
A. ASCM has developed a new concept for retailing on the Internet, incorporating
distribution and loyalty programs, which it believes is superior to current
alternatives.
B. ASCM has developed a concept using the Internet which is suitable for
application by property developers and managers of retail shopping malls and
retail outlets and companies which operate retail stores at such malls and
outlets.
C. Activeworlds is in the business of developing and providing computer software
products and online services that permit the users of such products to enter,
move about and interact with others in a computer-generated virtual reality
environment using the Internet.
D. ASCM desires to appoint Activeworlds as its exclusive vendor to license to it
certain of Activeworlds' technology and to develop exclusively on behalf of
ASCM the ASCM Virtual Mall Prototype which can be accessed through the
Internet, which would be similar to a real shopping mall, complete with
delivery alternatives and a loyalty program.
E. Activeworlds has agreed to accept its appointment on the terms and conditions
of this Agreement.
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Development and Licence Agreement Page 1
F. The parties also wish to express their intention that Activeworlds
exclusively develop the ASCM Browser Enhancements for ASCM to use in
operating the ASCM Virtual Mall Prototype. Both parties agree to use their
best endeavours to bring about this intended outcome.
IT IS AGREED
1 Definitions and Interpretation
1.1 Definitions
In this Agreement:
(1) "Agreement" means this Agreement, including any schedule or annexure to
it;
(2) "Acceptance Tests" means the acceptance tests for each of the
Development Phases of the ASCM Virtual Mall Prototype as set out in the
Development Plan;
(3) "Activeworlds Content" means any text, graphics, design, photography,
artwork, audio, video or other forms of expression which have been created
by or which may be created in the future by Activeworlds, to the extent that
they do not consist of Third Party Rights;
(4) "Activeworlds' Software" means the proprietary computer software owned
by Activeworlds and utilised to operate and provide functionality to
three-dimensional, virtual, interactive worlds or environments;
(5) "Activeworlds Standard Rates" means Activeworlds standard rates, fees
and expenses as set out in Exhibit B;
(6) "Activeworlds Web Site" means the Internet Web Site created and operated
by Activeworlds which is accessible through the URL xxx.xxxxxxxxxxxx.xxx, as
well as any other Web Site which may be developed or owned by Activeworlds
hereafter;
(7) "ASCM Browser Enhancements" means that portion of the browser software
developed specifically for and licensed to ASCM pursuant to this agreement,
which specifically excludes the Activeworlds Software;
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(8) "ASCM Content" means any text, graphics, design, photography, artwork,
audio, video or other materials or forms of expression which are owned or
have been created by or which may be created in the future by ASCM,
including the Delivery Program and Loyalty Program;
(9) "ASCM Intellectual Property" means all copyright, trade marks, service
marks, trade secrets, designs and patents of ASCM;
(10) "ASCM Uniserver" means the ASCM Uniserver Enhancements together with
that of the Activeworlds Software required to operate the ASCM Virtual Mall
Prototype.
(11) "ASCM Uniserver Enhancements" means that portion of the server software
developed specifically for and licensed to ASCM pursuant to this agreement,
which specifically excludes the Activeworlds Software;
(12) "ASCM Virtual Mall Prototype" means the prototype virtual shopping mall
developed by Activeworlds and delivered to ASCM on the ASCM Uniserver being
licensed by ASCM from Activeworlds which shall contain:
(a) various virtual representations of real world retail stores which
shall permit users to conduct e-commerce with such stores;
(b) the Delivery Program; and
(c) the Loyalty Program;
(13) "ASCM Virtual Mall Web Site" means any Internet Web Site through which
the ASCM Virtual Mall Prototype or any Virtual Mall may be accessed, which
shall include that Web Site accessible through the URLs listed on Exhibit C
hereto, as well as any other Web Sites which may be developed and which
serve essentially the same function as the ASCM Virtual Mall Web Site;
(14) "Audit Certificate" means a certificate by the nationally-recognized
auditors of ASCM to the effect that funds of at least the amount of the
Total Payment are and which are likely to remain available to ASCM to enable
it to meet its obligations under this Agreement;
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(15) "Confidential Information" means any information disclosed by one party
to the other in connection with this Agreement and which the receiving party
knows or has reason to know is regarded as confidential information by the
disclosing party, including:
(a) trade secrets;
(b) the structure, sequence and organisation of the source code of
computer software;
(c) marketing plans;
(d) techniques;
(e) processes;
(f) procedures and formulae; and
(g) client details;
(16) "Deliverables" means:
(a) in respect of ASCM, any ASCM Content and ASCM Intellectual
Property provided by ASCM to Activeworlds for integration into the ASCM
Virtual Mall Prototype, any other Virtual Mall or the ASCM Virtual Mall Web
Site; and
(b) in respect of Activeworlds, any of Activeworlds Content and
Activeworlds' Software utilised in or integrated into the ASCM Virtual Mall
Prototype, any other Virtual Mall or the ASCM Virtual Mall Web Site;
(17) "Delivery Program" means the delivery system obtained by ASCM for use
in the ASCM Virtual Mall Prototype or any Virtual Mall;
(18) "Developers" means property developers, managers, mall owners or
operators, hotel/motel/resort owners and managers, and casino owners and
managers who are responsible for contracting with retailers to set up
virtual stores in the ASCM Virtual Mall Prototype;
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(19) "Development Phase" means a stage in the Development Plan by when
specified parts of the development of the ASCM Virtual Mall Prototype will
have been completed, specified results achieved or specified conclusions
reached as required by the Development Plan, which consist of Xxxxx 0, Xxxxx
0 and Phase 3;
(20) "Development Plan" means the plans, milestones and timetables, if any,
for the development of the ASCM Virtual Mall Prototype set out in Exhibit A;
(21) "Disclosing Party" means the party disclosing any Confidential
Information to the other party;
(22) "Effective Date" means the date being 90 days after the date of this
Agreement;
(23) "Fifth Instalment" means the sum representing 60% of the estimate of
costs provided by Activeworlds to ASCM under clause 8.3(2);
(24) "Fourth Instalment" means the sum of $125,000;
(25) "Functional Completion" in relation to the ASCM Virtual Mall Prototype,
means completion satisfactory to ASCM in accordance with the Development
Plan;
(26) "Functional Requirements" means the requirements of ASCM in respect of
the ASCM Virtual Mall Web Site including ASCM's requirements set out in
Exhibit A and any reasonable alterations and additions to the requirements;
(27) "Instalment Payments" means the instalments of the Total Payment
payable by ASCM to Activeworlds in accordance with clause 8.2;
(28) "Initial Instalment" means the sum of $150,000;
(29) "Intellectual Property Rights" means all and any intellectual and
industrial protection rights throughout the world including rights in
respect of or in connection with:
(a) any Confidential Information;
(b) copyright, including future copyright or rights in the nature of
or analogous to copyright;
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(c) trade marks;
(d) service marks; and
(e) designs,
whether or not now existing, and whether or not registered or
registerable and includes any right to apply for the registration of
such right and includes all renewals and extensions;
(30) "Internet" means the world wide connection of computer networks
providing for the transmittal of electronic mail, online information,
information retrieval and file transfer protocol;
(31) "Loyalty Program" means the loyalty system obtained by ASCM for use in
the ASCM Virtual Mall Prototype or any Virtual Mall;
(32) "Phase 1" means Phase 1 as identified in the Development Plan;
(33) "Phase 2" means Phase 2 as identified in the Development Plan;
(34) "Phase 3" means Phase 3 as identified in the Development Plan;
(35) "Receiving Party" means the party receiving any Confidential
Information disclosed by the other party;
(36) "Revenue" means the gross sales revenue derived from sales of goods and
services by contracted retail stores or providers of entertainment or net
clearances by providers of on-line casino games on the ASCM Virtual Mall
Prototype;
(37) "Second Instalment" means the sum of $100,000;
(38) "Sixth Instalment" means the sum representing 40% of the actual costs
of Activeworlds development of Phase 3, less the amount of the Fifth
Instalment previously paid to Activeworlds;
(39) "Term" means the term of this Agreement set out in clause 11.1;
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(40) "Third Instalment" means the sum of $125,000;
(41) "Third Party Rights" means Intellectual Property Rights owned by or
exclusively licensed to third parties;
(42) "Total Payment" means an amount of not less than $1,000,000 but no more
than $1,500,000 comprising the Instalment Payments;
(43) "User" means any Developer and any person who seeks access to the ASCM
Virtual Mall Web Site;
(44) "Virtual Mall" means any virtual shopping mall developed by
Activeworlds and delivered to ASCM, including the ASCM Virtual Mall
Prototype;
(45) "Virtual Mall Software" means the ASCM Browser Enhancements and the
ASCM Server Enhancements.
(46) "Web Site" means any location accessible on the Internet through the
World Wide Web, which provides multimedia content via a graphical user
interface; and
(47) "World Wide Web" means a method of representing and obtaining graphical
data and linking data items used by Internet users.
2 ASCM Virtual Mall Prototype Development
2.1 Development
Activeworlds shall develop and construct the ASCM Virtual Mall Prototype on
the ASCM Uniserver:
(1) in accordance with this Agreement, including, in accordance with the
Functional Requirements and the Development Plan;
(2) in accordance with any reasonable and lawful requests and directions of
ASCM which do not differ substantially from the Functional Requirements and
Development Plan.
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2.2 Upon Functional Completion, the ASCM Uniserver shall be accessible on the
Internet through the ASCM Virtual Mall Web Site.
2.3 The ASCM Virtual Mall Prototype shall contain various virtual
representations of real world retail stores and permit users to conduct
e-commerce with such stores.
2.4 Activeworlds will create the virtual retail stores, tailor the retail stores
to fit the reasonable needs of particular retail merchants, provide
functionality to allow for payment processing by persons making purchases
through such retail stores and provide technical support, as detailed in the
Functional Requirements and the Development Plan.
2.5 Upon Functional Completion of the ASCM Virtual Mall Prototype, ASCM may
request that Activeworlds create additional Virtual Malls which may either
reside on the ASCM Uniserver or a new uniserver licensed from Activeworlds
by ASCM at such time.
3 Commencement and Continuation of Development
3.1 ASCM must on or before the Effective Date:
(1) provide the Audit Certificate to Activeworlds; and
(2) pay to Activeworlds the Initial Instalment.
3.2 Immediately upon receipt of the Audit Certificate and the Initial
Instalment, Activeworlds shall commence development of the ASCM Virtual Mall
Prototype.
3.3 Activeworlds shall have no obligation to continue working on the ASCM
Virtual Mall Prototype in the event ASCM fails to make any Instalment
Payment when due, unless ASCM is not obliged to make payment or is entitled
to suspend payment.
4 Progress of Development
4.1 Activeworlds shall adhere to any specific timeframe comprised within the
Development Plan and achieve each Development Phase by the date, if any,
specified in the Development Plan except to the extent any delay is cause by
ASCM, or any vendor or Developer.
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4.2 Activeworlds shall:
(1) provide ASCM on request with written or verbal reports (as reasonably
directed by ASCM) regarding the present status of the development of the
ASCM Virtual Mall Prototype
(2) have available suitably qualified, informed and authorised
representatives to participate by telephone conference in any meeting
arranged by ASCM in order to discuss and accurately answer questions
relating to progress under this Agreement.
4.3 Immediately after becoming aware of a potential or actual delay in achieving
a Development Phase, Activeworlds shall notify ASCM in writing of the nature
and cause of the delay and the steps being undertaken to overcome the delay.
4.4 If Activeworlds fails to comply with the Development Phases, ASCM may:
(1) withhold any payment otherwise due under this Agreement until
satisfactory completion of such Development Phase; and
(2) in the event that such failure continues more than 30 days, terminate
this Agreement and pursue any remedies available under this Agreement or at
law.
4.5 Activeworlds shall permit ASCM upon reasonable advance written notice to
examine the design techniques and workmanship (which shall not include any
source code) for the purposes of satisfying itself as to the present status
and quality of the ASCM Virtual Mall Prototype.
5 ASCM's Obligations
5.1 ASCM shall provide or make available to Activeworlds the Functional
Requirements including information regarding the proposed size and
description of the ASCM Virtual Mall Prototype, the number of vendors,
identity of vendors (if known), types of special functions required by any
particular vendors or the mall generally, and other Functional Requirements.
5.2 ASCM shall be responsible for negotiating and entering into binding
contracts with Developers.
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5.3 Subject to clause 5.4, ASCM shall, upon Functional Completion of the ASCM
Virtual Mall Prototype, pay 1% of the Revenue collected by ASCM to
Activeworlds for the hosting and maintenance of the ASCM Uniserver.
5.4 ASCM is not liable to pay any amount under clause 5.3 unless Activeworlds
strictly complies with its obligations under clause 10.
6 Additional Obligations
6.1 Hosting
Activeworlds will provide for hosting and maintenance of the ASCM Virtual
Mall Prototype and the ASCM Uniserver.
6.2 Credit Card Servicing Agency
Subject to clause 6.3, ASCM shall ensure that accounts are capable of being
established with credit card processing agencies and shall coordinate the
processing of credit card transactions made through the ASCM Virtual Mall
Prototype. The agencies shall permit the processing of credit card
transactions, including VISA and Mastercard transactions.
6.3 Activeworlds shall incorporate any functionality necessary to conduct all
credit card transactions into the ASCM Virtual Mall Web Site including
appropriate security safeguards.
6.4 Audit Rights
ASCM shall retain such records of sales made through the ASCM Virtual Mall
Prototype (and shall require its vendors to provide it with such
information) as are reasonably required by Activeworlds so as to permit it
to monitor the amount of sales made by vendors through the ASCM Virtual Mall
Prototype and the level of Revenue for such period.
7 Acceptance Testing
7.1 Activeworlds shall conduct the Acceptance Tests, at its own cost and under
the supervision of ASCM, within 14 days of the completion of each
Development Phase in accordance with the Development Plan.
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7.2 Upon satisfactory completion of an Acceptance Test, Activeworlds shall
provide ASCM with certification of satisfaction that the Development Phase
complies with the Acceptance Test.
7.3 Notwithstanding clause 6.2, ASCM shall have the opportunity to conduct its
own acceptance tests within 30 days after completion of each of the
Development Phases and if the ASCM Virtual Mall Prototype at that
Development Phase fails to comply with ASCM's acceptance tests, it may by
written notice to Activeworlds:
(1) specify a new date for carrying out further tests on the same terms and
conditions;
(2) accept the ASCM Virtual Mall Prototype conditionally; or
(3) reject the ASCM Virtual Mall Prototype as not being in conformity with
the Development Plan and, if Activeworlds fails to comply with the
Development Plan within 30 days thereafter, terminate this Agreement.
8 Payment for Services
8.1 Total Payment
ASCM agrees to pay Activeworlds the Total Payment as the total consideration
for the development of the ASCM Virtual Mall Prototype subject to the terms
of this Agreement.
8.2 Payment Procedure
Subject to clause 7.5, ASCM shall pay the Instalment Payments in accordance
with the following schedule of payments:
(1) the Initial Instalment is payable on or before the Effective Date;
(2) the Second Instalment is payable on completion of Phase 1 and
satisfactory completion of the relevant Acceptance Tests;
(3) the Third Instalment is payable prior to the commencement of Phase 2;
(4) the Fourth Instalment is payable on completion of Phase 2 and
satisfactory completion of the relevant Acceptance Tests;
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(5) subject to clause 7.3, the Fifth Instalment is payable prior to
commencement of Phase 3; and
(6) the Sixth Instalment is payable on completion of Phase 3 and
satisfactory completion of the relevant Acceptance Tests and Functional
Completion.
8.3 Prior to the commencement of Phase 3:
(1) ASCM shall provide Activeworlds with Functional Requirements for the
establishment of retail stores in the ASCM Virtual Mall Prototype; and
(2) within 14 days of receipt of the information under clause 7.3 (1),
Activeworlds shall, subject to clause 7.4, provide ASCM with a written
estimate of the reasonable costs of the further development of the ASCM
Virtual Mall Prototype required for satisfactory completion of Phase 3.
8.4 In calculating its estimate of costs, Activeworlds shall be entitled to
charge the Activeworlds Standard Rates for the development work proposed in
fulfilling the Functional Requirements specified by ASCM under clause 8.3(1)
provided that Activeworlds shall not be entitled to charge in aggregate an
amount in excess of the Total Payment for any work undertaken by
Activeworlds from commencement of development of the ASCM Virtual Mall
Prototype up to and including:
(1) completion of Phase 3; and
(2) achievement of Functional Completion of the ASCM Virtual Mall Prototype.
8.5 Notwithstanding clause 7.2, ASCM is not obliged to pay an Instalment Payment
due unless and until:
(1) the relevant Acceptance Tests at a Development Phase are satisfactorily
completed; and
(2) ASCM is satisfied with the outcome of any of its acceptance tests
carried out under clause 7.3.
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8.6 Activeworlds agrees that, in undertaking any further work for ASCM, such as
the development of additional Virtual Malls (other than the ASCM Virtual
Mall Prototype) or other developments, it will charge the Activeworlds
Standard Rates. Any amounts charged for such future work shall not be
limited to the amount of the Total Payment.
9 Intellectual Property Rights
9.1 Activeworlds:
(1) assigns to ASCM all existing and future Intellectual Property Rights in
the visual or audio content embodied in the ASCM Virtual Mall Prototype and
in any other ASCM Virtual Malls other than Third Party Rights, which shall
however specifically exclude all Intellectual Property Rights in
Activeworlds' Software or any content provided by Activeworlds, such as its
stock objects;
(2) grants to ASCM a limited, nontransferable, nonsublicensable,
royalty-free, exclusive license to use one copy of the ASCM Uniserver
Enhancements for its operation of virtual malls;
(3) grants to ASCM a limited, nontransferable, nonsublicensable,
royalty-free, exclusive license to use and sublicense ASCM Browser
Enhancements for its operation of virtual malls.
9.2 ASCM may copy the Virtual Mall Software and Activeworlds Software for
archival purposes or for permitted sublicensing, provided any copy must
contain all of the original proprietary notices or shrink wrap licenses
contained in such software. ASCM may not, directly or indirectly: modify,
translate, reverse engineer, decompile, disassemble (except to the extent
applicable laws specifically prohibit such restriction), create derivative
works based on, or otherwise attempt to discover the source code or
underlying ideas or algorithms of the Virtual Mall Software or Activeworlds
Software. ASCM may not copy (except for archival purposes as set forth
above), rent, lease, distribute, transfer or otherwise transfer rights to
the Virtual Mall Software or Activeworlds Software; use the Virtual Mall
Software or Activeworlds Software for timesharing or service bureau
purposes; or remove any proprietary notices or labels on the Virtual Mall
Software or Activeworlds Software. Any exclusivity granted herein does not
apply to any other business or applications that are currently or could in
the future be used by Activeworlds for applications other than those
restricted pursuant to section 19 or the @mart mall currently in Active
Worlds.
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9.3 In relation to any Third Party Rights that have not been assigned to
Activeworlds, Activeworlds will use its best efforts to ensure that the use,
reproduction and commercial exploitation of the ASCM Virtual Mall Prototype
will not infringe any such rights and that no fees, royalties or other
payments are payable in respect of such Third Party Rights as a result of
any such use, reproduction and commercial exploitation unless agreed by the
parties in writing to the contrary.
10 Support
10.1 Activeworlds shall during the term provide such assistance, training and
documentation (which shall not include any source code) including
operational manuals, on-screen help menus or other materials to enable ASCM
to properly operate, effectively use and commercially exploit the ASCM
Virtual Mall Prototype.
10.2 Activeworlds shall during the Term provide to ASCM at no charge telephone
and technical and other support reasonably required by ASCM to assist ASCM
in the use, operation and commercial exploitation of the ASCM Virtual Mall
Prototype and any other ASCM Virtual Malls to the extent such malls are
developed in the future for ASCM by Activeworlds and all analysis and
programming services necessary to correct and resolve any errors or problems
that appear in the ASCM Virtual Mall Prototype as a result of its use by
ASCM or its User.
11 Term and Option to Renew
11.1 Term
This Agreement commences on the date of this Agreement and shall remain in
full force and effective for a period of 4 years from the date of Functional
Completion or until terminated pursuant to clause 11.
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11.2 Option to Renew
(1) A party seeking to extend the Term by an additional period of 4 years
may give written notice to the other party of its desire at least 3 months
prior to the expiration of the Term.
(2) Within 30 days of receipt of a notice under clause 10.2, the parties
must enter into bona fide negotiations to extend the Term of this Agreement
on terms and conditions acceptable to both parties, having regard to the
intention of the parties stated in the Introduction.
(3) If the parties fail to reach agreement on the extension of the Term
within 30 days after commencement of negotiations, then this Agreement shall
continue in force and remain effective up to the date of expiration of the
Term but subject to earlier termination under clause 11.
12 Termination
12.1 Either party shall be entitled to terminate this Agreement by written
notice in the event that ASCM fails to satisfy clause 3.1 by the Effective
Date without any further obligations on either of the parties.
12.2 Events of Default by ASCM
Activeworlds shall have the right to terminate this Agreement and its
further obligations hereunder upon the occurrence of any of the following
events of default (subject to ASCM's ability to cure or remedy such event as
described in clause 12.4):
(1) ASCM is involved in any voluntary or involuntary bankruptcy proceeding,
or any other proceeding concerning insolvency, dissolution, cessation of
operations, or reorganisation of indebtedness or has a receiver appointed
over its affairs and the proceeding or appointment is not dismissed within
60 days;
(2) ASCM becomes unable to pay its debts as they mature in the ordinary
course of business or makes an assignment for the benefit of its creditors;
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(3) ASCM fails to make any Instalment Payment to Activeworlds when due,
unless it is not obliged to make payment or is entitled to suspend payment;
or
(4) ASCM is in material default of any provision of this Agreement.
12.3 Events of Default by Activeworlds
ASCM shall have the right to terminate this Agreement and its further
obligations hereunder upon the occurrence of any of the following events
(subject to Activeworlds' ability to cure or remedy such events as described
in clause 12.4):
(1) Activeworlds becomes involved in any voluntary or involuntary bankruptcy
proceeding or any other proceeding concerning insolvency, dissolution,
cessation of operations, or reorganisation of indebtedness, or has a
receiver appointed over its affairs and the proceeding or appointment is not
dismissed within 60 days;
(2) Activeworlds becomes insolvent or unable to pay its debts as they mature
in the ordinary course of business or makes an assignment for the benefit of
its creditors;
(3) Activeworlds fails to comply with the Development Plan within 30 days
after ASCM has given written notice under clause 7.3 (3); or
(4) Activeworlds is in material default of any provision of this Agreement.
12.4 Right to Cure Event of Default
Upon the occurrence of any event of default entitling a party to terminate
this Agreement (excepting those events set forth under clauses 12.2(1),
12.2(2), 12.3(1), 12.3(2) and 11.3 (3) hereof) the non-defaulting party may
send notice of termination, specifying the nature of the default, to the
other party. The non-defaulting party shall permit 60 calendar days,
following the date of such notice to enable the other party to cure the
default to the non-defaulting party's reasonable satisfaction. In the event
of a payment default, the non defaulting party shall provide the defaulting
party with written notice of such default and permit the other party 10
calendar days following such written notice to cure such default. Failure to
cure the default shall result in termination without further notice by the
non-defaulting party, unless such non-defaulting party extends the cure
period by written notice or withdraws the default notice.
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12.5 Obligations Upon Termination
Upon expiration or termination of this Agreement, each Party shall return or
destroy all Confidential Information of the other Party and the trademark
and service xxxx licences granted in clauses 14.1 and 14.2 hereof shall
terminate. Following any termination of this Agreement, each Party shall
cease to make any representation or statement to the effect that they remain
affiliated with one another.
12.6 Continuing Obligations
Each right, obligation and warranty (except an obligation fully performed on
or prior to the termination or expiration of this Agreement) continues in
force despite termination or expiration of this Agreement.
13 Ownership
13.1 Activeworlds Intellectual Property Rights
Except for the licenses provided for herein, Activeworlds shall own and
retain all right, title and interest in and to the Activeworlds' Software,
the Virtual Mall Software and Intellectual Property owned by Activeworlds.
13.2 ASCM Intellectual Property Rights
Except as otherwise provided herein, ASCM shall own and retain all right,
title and interest in and to any technology, content, data or information
otherwise developed or created by:
(1) ASCM; and
(2) Activeworlds to the extent it consists of visual or audio content
developed specifically for inclusion in the ASCM Virtual Mall Prototype or
any other ASCM Virtual Malls.
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14 Trade Xxxx Licences
14.1 Trade Xxxx Licence Grant to Activeworlds
ASCM grants to Activeworlds a limited, non exclusive, non transferable
licence to display those of ASCM's trade marks and/or service marks set
forth on Exhibit D ("ASCM Trade Marks") in the Activeworlds Web Site and in
any promotional materials distributed by Activeworlds which serve to promote
the ASCM Virtual Mall Web Site or the beneficial relationship between
Activeworlds and ASCM. ASCM further grants to Activeworlds a licence during
the Term of this Agreement to use the ASCM Deliverables together with any
intellectual property rights embodied therein, including but not limited to
copyright, solely for the purposes of developing the ASCM Virtual Mall
Prototype.
14.2 Trade Xxxx Licence Grant to ASCM
Activeworlds grants to ASCM a limited, non exclusive, non transferable
licence to display those of Activeworlds trade marks and/or service marks
set forth on Exhibit E ("Activeworlds Trade Marks") in the ASCM Virtual Mall
Web Site and in any promotional materials distributed by ASCM with respect
to the Activeworlds Web Site or any portion thereof or any links to the
Activeworlds Web Site contained on the ASCM Virtual Mall Web Site.
14.3 ASCM's Rights
Activeworlds acknowledges that it has no proprietary interest in the ASCM
Trade Marks (other than the licence granted herein). Activeworlds' use of
the ASCM Trade Marks will not create any right, title or interest of
Activeworlds in or to the ASCM Trade Marks. Activeworlds agrees that it will
do nothing inconsistent with ASCM's ownership of the ASCM Trade Marks and
that all use of the ASCM Trade Marks by Activeworlds shall inure to the
benefit of ASCM. Activeworlds shall not register or attempt to register the
ASCM Trade Marks in any jurisdiction without the prior written permission of
an authorised officer of ASCM. Activeworlds agrees to keep ASCM appraised of
its manner of use of the ASCM Trade Marks other than as is obvious from a
review of the Activeworlds Web Site.
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14.4 Activeworlds' Rights
ASCM acknowledges that it has no proprietary interest in the Activeworlds
Trade Marks (other than the licence granted herein). ASCM's use of the
Activeworlds Trade Marks will not create any right, title or interest of
ASCM in or to the Activeworlds Trade Marks. ASCM agrees that it will do
nothing inconsistent with Activeworlds ownership of the Activeworlds Trade
Marks and that all use of the Activeworlds Trade Marks by ASCM shall inure
to the benefit of Activeworlds. ASCM shall not register or attempt to
register the Activeworlds Trade Marks in any jurisdiction without the prior
written permission of an authorised officer of Activeworlds. ASCM agrees to
keep Activeworlds appraised of its manner of using the Activeworlds Trade
Marks.
15 Intellectual Property Rights
15.1 ASCM's Rights
Activeworlds acknowledges that it has no proprietary interest in the ASCM
Intellectual Property Rights (other than the licence granted herein).
Activeworlds' use of the ASCM Intellectual Property Rights will not create
any right, title or interest of Activeworlds in or to the ASCM Intellectual
Property Rights. Activeworlds agrees that it will do nothing inconsistent
with ASCM's ownership of the ASCM Intellectual Property Rights and that all
use of the ASCM Intellectual Property Rights by Activeworlds shall inure to
the benefit of ASCM. Activeworlds shall not register or attempt to register
the ASCM Intellectual Property Rights in any jurisdiction without the prior
written permission of an authorised officer of ASCM. Activeworlds agrees to
keep ASCM appraised of its manner of use of the ASCM Intellectual Property
Rights other than as is obvious from a review of the Activeworlds Web Site.
15.2 Activeworlds' Rights
ASCM acknowledges that it has no proprietary interest in the Intellectual
Property Rights (other than the licence granted herein). ASCM's use of the
Activeworlds Intellectual Property Rights will not create any right, title
or interest of ASCM in or to the Activeworlds Intellectual Property Rights.
ASCM agrees that it will do nothing inconsistent with Activeworlds ownership
of the Activeworlds Intellectual Property Rights and that all use of the
Activeworlds Intellectual Property Rights by ASCM shall inure to the benefit
of Activeworlds. ASCM shall not register or attempt to register the
Activeworlds Intellectual Property Rights in any jurisdiction without the
prior written permission of an authorised officer of Activeworlds. ASCM
agrees to keep Activeworlds appraised of its manner of using the
Activeworlds Intellectual Property Rights.
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16 Promotion
ASCM agrees that Activeworlds shall be provided with credit as the owner of
the Activeworlds Software and technology and as the developer of the ASCM
Virtual Mall Prototype and any other Virtual Mall, and shall be referenced
on the web page, which is initially accessed by Users of the ASCM Virtual
Mall Prototype or any other Virtual Xxxx.
00 Xxxxxxxxxx and Consents
17.1 Activeworlds Warranties
Activeworlds warrants that the ASCM Virtual Mall Prototype will:
(1) perform in accordance with the Functional Requirements;
(2) be fit for the purpose identified in the Development Plan and Functional
Requirements;
(3) not infringe any Intellectual Property Rights, including Third Party
Rights and ASCM Intellectual Property or constitute a breach of any
agreement with any other person; and
(4) the information provided to ASCM in relation to the subject matter of
this Agreement prior to its entry into this Agreement was and remains at the
date of this Agreement true and correct.
17.2 Deliverables
Each Party warrants to the other that the Deliverables made by it to the
other will substantially conform with the Functional Requirements.
17.3 Proprietary Rights Warranties
Each Party warrants to the other that it has the necessary rights to grant
the licences granted herein without violating or infringing upon the
patents, trade secrets, trade marks, service marks or copyrights of third
parties.
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17.4 Warranties of Authority
Each Party warrants to the other Party that it has the authority to enter
into this Agreement and that all necessary corporate or other approvals have
been or will be obtained.
17.5 Disclaimer of Warranties
The warranties contained in this clause 16 are the sole warranties express
or implied given by each party to the other in connection with this
Agreement and each party disclaims all other warranties to the other.
18 Indemnification
18.1 ASCM Indemnification
(1) ASCM shall, at its expense, defend, indemnify and hold harmless
Activeworlds, and its officers, directors and employees, agents and
independent contractors from any and all costs, damages, liabilities and
fees reasonably incurred by Activeworlds, including but not limited to fees
of attorneys and other professionals, with respect to any claims, actions,
demands or proceedings arising out of or in any way related to:
(a) a breach by ASCM of this Agreement, including any breach of ASCM's
warranties and representations set forth in clause 15 above; and
(b) any infringement or alleged infringement of the rights, including
the Intellectual Property Rights, to the extent arising from the integration
of ASCM's Deliverables in the ASCM Virtual Mall Prototype,
provided that:
(c) Activeworlds gives prompt written notice to ASCM of any such claim,
action, demand or proceeding;
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(d) Activeworlds allows ASCM to control the defence and related
settlement negotiations (except in the case of any claim, action, demand or
proceeding relating to Activeworlds' Software); and
(e) Activeworlds fully assists in the defence so long as ASCM reimburses
Activeworlds for its reasonable expenses and employee time.
(2) In the event that any such claim, action, or demand is made against
Activeworlds, Activeworlds will promptly furnish ASCM with copies of any and
all documents (inclusive of all correspondence and pleadings other than
attorney-client communications) pertaining thereto.
(3) Activeworlds will also keep ASCM continuously and fully informed in a
timely manner as to the status of the same and will provide ASCM with copies
of any additional documents pertaining thereto.
18.2 Activeworlds Indemnification
(1) Activeworlds shall, at its expense, defend, indemnify and hold harmless
ASCM, and its officers, directors, and employees, agents and independent
contractors from any and all costs, damages, liabilities and fees reasonably
incurred by ASCM, including but not limited to fees of attorneys and other
professionals, with respect to any claims, actions, demands or proceedings
arising out of or in any way related to:
(a) a breach by Activeworlds of this Agreement, including any breach of
Activeworlds' warranties and representations set forth in clause 15; and
(b) any infringement or alleged infringement of rights, including
Intellectual Property Rights, of any person occurring through the use or
commercial exploitation of the ASCM Virtual Mall Prototype, to the extent
arising solely from ASCM's Deliverables,
provided that:
(c) ASCM gives prompt written notice to Activeworlds of any such claim,
action, demand or proceeding;
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(d) ASCM allows Activeworlds to control the defence and related
settlement negotiations (except in the case of any claim, action, demand or
proceeding relating to the ASCM Intellectual Property); and
(e) ASCM fully assists in the defence so long as Activeworlds reimburses
ASCM for its reasonable expenses and employee time.
(2) In the event that any such claim, action, demand or proceeding is made
against ASCM, ASCM will promptly furnish Activeworlds with copies of any and
all documents (inclusive of all correspondence and pleadings other than
attorney-client communications) pertaining thereto. ASCM will also keep
Activeworlds continuously and fully informed in a timely manner as to the
status of the same and will provide Activeworlds with copies of any
additional documents pertaining thereto.
18.3 Without prejudice to any other right or action or remedy which ASCM may
have, if Activeworlds fails to comply with clause 16.2, ASCM will have the
right to immediately suspend payment of any Instalment Payments due under
this Agreement until such claim, action, demand or proceeding has been
resolved.
19 Limitation of Liability
Except for any liability referred to in clause 16, neither party shall be
liable to the other for any lost profits, loss of market or opportunity
and/or incidental or consequential loss or damage howsoever arising in
connection with the subject matter of this Agreement, pursuant to any claim
in contract, negligence, tort, strict liability or other theory.
20 Confidentiality
20.1 Confidentiality
The Receiving Party to any Confidentiality Information shall hold all such
Confidential Information of the Disclosing Party in trust and confidence,
and protect it as the Receiving Party would protect its own confidential
information (which, in any event, shall not be less than reasonable
protection) and shall not use such Confidential Information for any purpose
other than that contemplated by this Agreement. Unless agreed by the
Disclosing Party in writing, the Receiving Party shall not disclose any
Confidential Information of the Disclosing Party, by publication or
otherwise, to any person other than employees, contractors (such as contract
manufacturers or software developers) and Developers who:
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(1) are bound to written confidentiality obligations consistent with and at
least as restrictive as those set forth herein; and
(2) have a need to know such Confidential Information for purposes of
enabling a Party to exercise its rights and perform its obligations pursuant
to this Agreement.
The forgoing confidentiality obligation shall be effective for a period of 5
years after first disclosure of the Confidential Information pursuant to the
terms of this Agreement, provided however, that each Party will comply with
any obligations of confidentiality as may be imposed pursuant to agreements
with third parties for longer periods (each Party shall disclose to the
other in writing such obligations of confidentiality that may be imposed
pursuant to such agreements with third parties at the time of disclosure).
20.2 Exceptions
The obligations specified in this clause 20 shall not apply to any
Confidential Information to the extent that:
(1) it is already known to the Receiving Party without restriction prior to
the time of disclosure by the Disclosing Party;
(2) it is acquired by the Receiving Party from a third party without
confidentiality restriction and does not originate with the Disclosing
Party;
(3) it is independently developed or acquired by the Receiving Party by
employees or contractors without access to such Confidential Information;
(4) it is approved for release by written authorisation of the Disclosing
Party;
(5) it is in the public domain at the time it is disclosed or subsequently
falls within the public domain through no wrongful action of the Receiving
Party;
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(6) it is furnished to a third party by the Disclosing Party without a
similar restriction on that third party's right of disclosure;
(7) it is disclosed pursuant to the requirement of a governmental agency or
disclosure is permitted or required by operation of law, provided that the
Receiving Party uses its best efforts to notify the Disclosing Party in
advance of such disclosure and seeks confidential treatment for such
Confidential Information.
20.3 Confidentiality of Agreement
Each Party agrees that the terms and conditions of this Agreement shall be
treated as Confidential Information; provided that each Party may disclose
the terms and conditions of this Agreement:
(1) to legal counsel;
(2) in confidence, to accountants, banks, and financing sources and their
advisors;
(3) in confidence, in connection with the enforcement of this Agreement or
rights under this Agreement;
(4) if required by law.
21 Limitation on Operation of Virtual Mall by Activeworlds.
21.1 Activeworlds agrees that it shall not, during the term of this Agreement
directly operate any virtual mall except @Mart.
22 Jurisdiction and Applicable Law
22.1 Governing Law
This Agreement shall be governed by and construed under the laws of the
United States and the Commonwealth of Massachusetts as applied to agreements
entered into and to be performed entirely within Massachusetts between
Massachusetts residents.
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22.2 Venue
All disputes arising out of this Agreement shall be resolved through a court
of competent jurisdiction in the Commonwealth of Massachusetts.
23 Force Majeure
If the performance of this Agreement or any obligations hereunder is
prevented, restricted, or interfered with by the reasons of acts of God,
acts of an governmental authority, riot, revolution, fires, war, or other
cause beyond the reasonable control of the parties hereto ("Force Majeure"),
the Party so effected shall be excused from such performance until such
Force Majeure is removed, provided that the Party so effected shall use its
best efforts to avoid or remove such causes of non performance and shall
continue performance hereunder with the utmost dispatch whenever such causes
are removed.
24 Miscellaneous
24.1 Compliance with Export Control
The parties agree to comply with all USA export and re-export laws. ASCM
shall be solely responsible for compliance with any export and re-export
laws to the extent such laws impact upon its operation of the ASCM Virtual
Mall Prototype or any Virtual Mall.
24.2 Waiver
Any waiver of breach or default pursuant to this Agreement shall not be a
waiver of any other subsequent breach or default. Failure or delay by either
Party to enforce any term or condition of this Agreement shall not
constitute a waiver of such term or condition.
24.3 Severability
To the extent that any provision of this Agreement is found by a court of
competent jurisdiction to be invalid or unenforceable, that provision
notwithstanding, the remaining provisions of this Agreement shall remain in
full force and effect and such invalid or unenforceable provision shall be
deleted.
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24.4 Assignment
Notwithstanding anything to the contrary contained in this Agreement, either
party may assign or sublicence this Agreement (including any licences
contained herein) to any person to whom it transfers all or substantially
all of its assets without the consent of the other party. Otherwise, neither
party may assign, voluntarily, by operation of law, or otherwise, any rights
or delegate any duties under this Agreement (other than the right to receive
payments) without the other party's prior written consent, which may not be
unreasonably withheld, and any attempt to do so without that consent will be
void. This Agreement will bind and inure to the benefit of the parties and
their respective successors and permitted assigns.
24.5 No Deemed Assignment
Clause 22.4 does not apply in any way to restrict the sale of any
shareholding in either ASCM or Activeworlds.
24.6 Notices
Any notice required or permitted pursuant to this Agreement shall be in
writing delivered by hand, overnight courier, telecopy, facsimile, or
certified or registered mail to the address listed below and shall be
effective upon receipt:
Notices to Activeworlds:
Xxxxxxxxxxxx.xxx, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
XXX
With a copy to:
Xxxx X Xxxxxxxxxxx, Esq
Pepe & Hazard LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
XXX
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Notices to ASCM:
Advanced Shopping Centre Management Pty Ltd
Xxxxx 00, 0 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx XXX 0000
XXXXXXXXX
With a copy to:
Xxxx Xxxxxxx
Deacons Xxxxxx & Xxxxx
Gold Fields House
0 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
24.7 Amendment
No alteration, waiver, cancellation, or any other change or modification in
any term or condition of this Agreement, or any agreement contemplated to be
negotiated or reached pursuant to the terms of this Agreement, shall be
valid or binding on either Party unless made in writing and signed by duly
authorised representatives of both parties.
24.8 Headings
Headings included herein are for convenience only, and shall not be used to
construe this Agreement.
24.9 Independent Contractors
For the purposes of this Agreement and all services to be provided
hereunder, each party shall be, and shall be deemed to be, an independent
contractor and not an agent, employee, partner, or joint venturer of the
other party. Neither party shall have authority to make any statements,
representations or commitments of any kind, or to take any action which
shall be binding on the other party, except as may be explicitly provided
for herein or authorised in writing.
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24.10 Counterparts
This Agreement may be executed in one or more counterparts, including
facsimiles, each of which shall be deemed to be a duplicate original, but
all of which, taken together, shall be deemed to constitute a single
instrument.
24.11 Entire Agreement
The terms and conditions herein contained, including all Exhibits hereto,
constitute the entire agreement between the parties with respect to the
subject matter of this Agreement and supersede any previous agreements and
understandings, whether oral or written, between the parties hereto with
respect to the subject matter hereof.
24.12 Construction
This Agreement is the product of negotiation between the parities and their
respective counsel. This Agreement will be interpreted fairly in accordance
with its terms and conditions and without any strict construction in favour
of either Party. Any ambiguity shall not be interpreted against the drafting
Party.
24.13 Press Releases
The parties agree that they will cooperate in preparing and releasing a
joint press release, at the launch of the developments provided for in this
Agreement and in connection with the release of any new significant
development, that will include, among other things, the following; a quote
from an officer of each Party, standard language as is customarily required
by ASCM and Activeworlds in such press releases, a Press contact and ASCM
and Activeworlds trade xxxx and service xxxx information.
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EXECUTED as an agreement.
SIGNED FOR AND ON BEHALF OF )
XXXXXXXXXXXX.XXX INC by: ) .................................................
)
................................................. .................................................
Director/Company Secretary Director
................................................. .................................................
Name of Director/Company Secretary Name of Director
(BLOCK LETTERS) (BLOCK LETTERS)
SIGNED FOR AND ON BEHALF OF )
ADVANCED SHOPPING CENTRE ) .................................................
MANAGEMENT PTY LIMITED by: )
)
)
................................................. .................................................
Director/Company Secretary Director
................................................. .................................................
Name of Director/Company Secretary Name of Director
(BLOCK LETTERS) (BLOCK LETTERS)
-30-
