EXHIBIT 10.15
FORM OF AMENDED
TECHNOLOGY LEASING AGREEMENT
BETWEEN
BIOQUEST INTERNATIONAL, INC.
AND
XXXXXXXXXXXXX.XXX, INC.
LEASING AGREEMENT
AGREEMENT by and between XxxxXxxxxxXXX.xxx Inc.
("MainStreet"), with principal offices at 000 Xxxxxx Xxxx, Xxxxx Xxxxxxxxx, XX
00000, and BioQuest International, Inc. ("BioQuest"), with principal offices at
00000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 made this 15th day of
December, 2000.
WHEREAS, MainStreet has developed technology to enable
corporations to publicly offer their securities over the Internet by means of a
Dutch Auction process; and
WHEREAS, BioQuest is desirous of leasing the technology (the
"Technology") which includes server space ("bandwidth") to enable BioQuest to
conduct a direct public offering of its sommon stock pursuant to Rule 3a 4-1,
promulgated under the Securities Xxx 0000, on a website to be established and
administered by BioQuest.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
1. APPLICATION SERVICES. MainStreet hereby leases to BioQuest,
during the term of this Lease, as set forth herein, specially designed
Technology to enable BioQuest to conduct on a Website to be established by
BioQuest (the "Website") a Dutch Auction of its securities. The technology will
enable BioQuest to receive, record and tabulate bids. In addition thereto, the
technology includes user statistics; an e-mail system to respond to inquiries,
bid information and registration; high use volume (bandwidth); internal security
protection; security protection; an online cash escrow management system and
other related operations and procedures. MainStreet shall also provide server(s)
space and connectivity to the Internet. Other than what is herein provided,
MainStreet shall not perform any additional services for BioQuest including, but
not limited to, advertising and solicitation of prospective investors, all of
which shall be the sole responsibility of BioQuest. BioQuest acknowledges that
it has received and reviewed a demonstration of the fully functioning Technology
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platform and the applications described herein and by this Agreement accepts the
Technology as it is presently constituted.
2. RESPONSIBILITY OF BIOQUEST. BioQuest shall be responsible
for the establishment and administration of its Website and shall be responsible
for the content of the Website. BioQuest further understands that MainStreet
exercises no control whatsoever over the content of the information passing
through the Website and it is the sole responsibility of BioQuest to ensure that
information it transmits and receives complies with all applicable laws and
regulations, including federal and state securities laws. All information
contained on and received by the Website shall be the exclusive property of
BioQuest. BioQuest shall also be responsible for user registration; user
prescreening and identification and bidding verification. BioQuest may not at
any time alter or change the Technology provided by MainStreet and any
alteration or attempt to alter the Technology without MainStreet's prior
approval will result in the automatic cancellation of this Lease.
3. TECHNOLOGICAL SUPPORT. During the term of this Lease and
after the establishment of the Website by BioQuest and upon notice to
MainStreet, MainStreet shall deliver the Technology and provide all necessary
technological support to insure that BioQuest's Website is accurately published
on the Internet together with sufficient bandwidth to support the expected
traffic to the site. MainStreet shall further insure at all times that the
software is in operable condition including, but not limited to, proper
logging, load balancing, data backup, storage and emergency response.
4. REPRESENTATIONS AND WARRANTIES OF MAINSTREET. MainStreet
represents and warrants that:
(a) At all times the Technology will be in optimal
functional condition including, but not limited to, sufficient facilities to
handle high use volume ("bandwidth") and to accept and promptly facilitate the
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bidding process for BioQuest's securities offering posted on its Website, and
the Technology will at all times during the term of this Agreement be maintained
and serviced by MainStreet; and MainStreet shall use reasonable commercial
efforts to insure the server(s) and related equipment are operational on a
twenty-four-hour-a-day, seven-days-a-week basis, except during periods of
scheduled maintenance down time.
(b) The MainStreet Technology will be monitored at all times
by Interactica Inc. to insure proper logging, load balancing, demographic
recording, data back-up, storage and emergency response;
(c) The MainStreet software has been properly developed and
the Technology is fit for the purpose for which it is intended to be used;
(d) It is the sole and exclusive owner of or otherwise has the
right to use and lease all Technology, and the leasing of such Technology does
not and will not (A) breach, conflict with or constitute a default under any
agreement or other instrument applicable to MainStreet or binding upon its
assets or properties or (B) infringe upon any trademark, trade name, service
xxxx, patent, copyright or other proprietary right of any other person or
entity;
5. TERM. The Lease of the Technology is for a one-time use by
BioQuest of the Technology for the offering of its securities to the public on
BioQuest's Website. The Term of this Agreement shall be for a sufficient
period of time to enable BioQuest to complete its offering but in no event to
exceed two hundred seventy (270) days after the effective date of a registration
statement filed by BioQuest with the Securities and Exchange Commission.
6. NO ACQUISITION OF LICENSE, OWNERSHIP OR RIGHTS. All
software (excluding software provided by BioQuest) systems and processes
developed by MainStreet and the Technology shall be and remain the exclusive
property of MainStreet. All of the systems and related business data,handbooks
and manuals, if any, and Technology are Confidential Information, except for
that information which is generally available to the public, is already or
becomes available to BioQuest on a non-confidential basis or has been, is now
or later independently developed by BioQuest. BioQuest understands and agrees
that, notwithstanding this Agreement, it shall acquire no other rights or
licenses to any of the Confidential Information.
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7. CONSIDERATION. In consideration for MainStreet leasing the
Technology and providing the application services to BioQuest for a one-time
use, MainStreet shall receive a fee consisting of $50,000 payable (i) $25,000
upon BioQuest's execution of this Agreement, receipt of which is hereby
acknowledged, and (ii) $25,000 payable within ten (10) days after BioQuest
ceases using the Website. BioQuest understands that no portion of the fee is
adjustable or refundable and the fact that BioQuest fails to use the Technology
or is not successful in its offering of securities shall not entitle BioQuest
to any adjustment or refund of the fee.
8. INDEMNIFICATION. MainStreet agrees to indemnify and hold
harmless BioQuest and any person who controls BioQuest against any and all
losses, claims, damages or liabilities, joint or several, to which BioQuest or
any controlling person may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any technological failures of the Website or the Technology provided by
MainStreet, other than illegal or unauthorized site intrusion by persons unknown
whose purpose is to interfere with the providing of services to the then
registered user, provided such illegal or unauthorized site intrusion is not due
to the lack of proper security provided by MainStreet's Technology. In no
event, shall MainStreet be liable for more than the fee paid by BioQuest.
9. SOLE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the leasing of the Technology to
BioQuest and any and all prior agreements, whether oral or in writing, between
the parties hereto are hereby rescinded, including any and all Lease Agreements
heretofore entered into between the parties.
10. NOTICES AND ADDRESSES. All notices or other communications
given or made under this Agreement shall be in writing and shall be (a)
personally delivered, (b) sent by certified mail, return receipt requested,
postage prepaid or by reputable overnight courier providing a receipt against
delivery, or (c) sent by telecopy or facsimile transmission, provided that a
copy thereof is concurrently delivered or sent in accordance with clause (a) or
(b) above. Such notices or other communications shall be delivered or sent:
To: MainStreet XXX.xxx Inc.
000 Xxxxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Ch. of the Bd.
10.15-5
Copy to: Xxxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
To: BioQuest International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Copy to: Xxxx Xxxxxx, Esq.
c/x Xxxxxx, Xxxx & Associates
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
or such other address as any party may specify in a notice delivered in
accordance with this Section 10.
11. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12. WAIVER. No waiver of any breach or condition of this
Agreement shall be effective unless in writing and signed by the party (s)
sought to be charged therewith, and a waiver in one instance shall not be deemed
to be a waiver of any other subsequent breach or condition, whether of like or
different nature.
13. USE OF CERTAIN TERMS. Any definitions apply equally to
both the singular and the plural; any pronoun shall include the corresponding
masculine, feminine and neuter; the words "include" and "including" shall be
deemed to be followed by the phrase "without limitation"; and the terms "hereof"
and "herein" shall refer to the particular agreement or document in which such
term appears.
14. CAPTIONS. Article titles or captions contained in this
Agreement are inserted only as a matter of convenience and reference and in no
way define, limit, extend or describe the scope of this Agreement or the intent
of any of the provisions hereof.
15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and each of such counterparts shall, for all purposes, be
deemed to be an original, but all of the counterparts shall constitute one and
the same instrument, and this Agreement shall be deemed effective on the date it
is executed by the parties hereto.
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16. BINDING. This Agreement and all of its provisions shall be
binding on and inure to the benefit of the successors of the parties. None of
the provisions of this Agreement is intended to be, nor shall the provisions
construed to be, for the benefit of any third party. Whenever in this Agreement
reference is made to a party, such reference shall be deemed to include a
reference to the legal representatives and successors of such party.
17. SEVERABILITY. If this Agreement or any applications
thereof to any person or party or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
18. ADDITIONAL REMEDIES. The rights and remedies of any party
hereunder shall not be mutually exclusive, i.e., the exercise of one or more of
the provisions hereof shall not preclude the exercise of any other provision
hereof. The respective rights and obligations hereunder shall be enforceable by
specific performance, injunction or other equitable remedy, but nothing herein
contained is intended to, nor shall it, limit or affect any other rights in
equity or any rights at law or by statute or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above mentioned.
XXXXXXXXXXXXX.XXX, INC.
By: /S/ Xxxxxx X. Xxxxxxx
------------------------------------
XXXXXX X. XXXXXXX, Chairman
of the Board, Chief Executive Officer
and President
BIOQUEST INTERNATIONAL, INC.
By: _________________________________
XXXXX X. XXXXX, Chairman of the Board,
Chief Executive Officer and President
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