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EXHIBIT 10.4
LICENSE AGREEMENT
THIS AGREEMENT made the 21st day of September, 1999.
BETWEEN:
NETSTAFF, INC.
(herein called "Licensor")
OF THE FIRST PART
AND:
COMMODORE SALES CORP.
(herein called "Licensee")
OF THE SECOND PART
WHEREAS:
A. The Licensor is the legal and beneficial owner of rights in certain computer
software programs, related documentation and know-how which facilitate the
operation of a multiple listing service for the professional staffing industry
over an electronic computer network (the "Rights");
B. The Licensor has agreed to grant to the Licensee a non-transferable,
non-sublicensable limited license for a term of Ten (10) years of the Rights for
the purposes of exploiting same for commercial purposes to be agreed upon within
South Africa exclusively (the "License").
NOW THEREFORE in consideration of the premises, covenants and obligations
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by both of the parties, the parties
hereby agree as follows:
1. GRANT OF LICENSE
1.1 Licensor hereby agrees to grant to the Licensee the License on the terms
and conditions detailed herein.
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2. OBLIGATIONS OF LICENSEE
2.1 The consideration payable by the Licensee for the License is the gross sum
of Two Million Dollars (US $2,000,000) payable in installments as to:
2.2 $1,000,000 on December 30, 1999; $500,000 twenty days thereafter and the
balance of the gross sum less any expenses, forty five days thereafter, subject
to fulfilment of terms in Schedule "A" hereto. Should the terms in Schedule "A"
not be fulfilled within such time periods, both parties shall mutually agree in
writing to extend the date for fulfilment of terms in Schedule "A" hereto in
which event payment of any such installments shall also be postponed for
delivery on the next day's date(s) after the fulfilment of such terms.
2.3 In furtherance of its obligations in respect of the License, the License
will keep confidential all proprietary information in respect of the Rights to
which it becomes privy as a result of the granting of the License.
2.4 The Licensee's exploitation of the Rights shall be of the highest standard
and of such style, appearance, distinctiveness and quality as to protect and
enhance the prestige of Licensor, the Rights, and the goodwill pertaining
thereto. All aspects of Licensee's planned exploitation of the Rights shall be
subject to the prior written approval of the Licensor. Licensee shall be
responsible for any and all fees, disbursements and expenses incurred in respect
of exploiting the Rights in South Africa.
3. OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
3.1 As between the Licensor and the Licensee, the Licensor will continue to be
the sole legal and beneficial owner of the Rights, subject to the License
granted herein, and the Licensee agrees and acknowledges this.
3.2 Any materials created by or for Licensee or any parent, subsidiary or
affiliate of Licensee, relating to or embodying any of the Rights, including
without limitation, designs, computer software, derivations, artwork, or
otherwise shall be deemed to be works made for hire for Licensor under U. S.
copyright law. In the event any portion of such materials is not deemed not to
be a work made for hire, Licensee hereby assigns to Licensor all worldwide
right, title and interest in that material, including without limitation, all
proprietary rights (such as copyright and trademarks) together with the goodwill
derived from the use of those materials. Licensee hereby waives its "moral
rights" or similar rights to any materials created by it under this agreement.
3.3 Licensee covenants that all goodwill associated with any trademarks relating
to the Rights shall inure directly and exclusively to the benefit of Licensor.
All trademarks and service marks which, and/or the right to use which, arise out
of the license granted under this Agreement shall be and remain the sole
property of Licensor. Licensee shall not at any time acquire or claim any right,
title or interest in such trademarks or service marks other than the limited
license expressly granted. All right, title or interest in such trademarks and
service marks that come into existence as a result, or during the term of, of
the exercise by Licensee of any right granted to it hereunder shall immediately
vest in Licensor.
4. WARRANTIES AND REPRESENTATIONS OF THE LICENSOR
4.1 The Licensor hereby represents and warrants to the Licensee, and
acknowledges that the Licensee is relying thereon in entering into this
Agreement, as follows:
(a) the Licensor is the legal and beneficial owner of the Rights;
(b) the Licensor has the full right and authority and has taken all
necessary corporate steps and has obtained all consents and
approvals required to grant the License set out herein to the
Licensee; and
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(c) the Licensor has not previously sold, assigned, transferred,
encumbered, mortgaged, charged, pledge as security, or otherwise
disposed of any of its interest in and to the Rights nor has it
granted an option to any other party to acquire any interest in
and to the Rights so as to impair the grant of the License
herein.
4.2 Licensee represents and warrants to the Licensor, and acknowledges that the
Licensor is relying thereon in entering this Agreement as follows:
(a) the Licensee is duly incorporated, valid and existing and in
good standing under the laws of the jurisdiction in which it was
incorporated;
(b) the Licensee has the full right, power, legal capacity and
authority to enter into this Agreement, to carry out its terms,
and to receive the Rights, license and privileges granted in this
Agreement; and
(C) the Licensee has not and will not, assign, transfer, lease,
convey or grant a security interest in or otherwise similarly
dispose of the Rights, the License or any related materials.
5 INDEMNIFICATION
5.1 To the extent and in the amount that Licensor shall have received any
amounts from Licensee, the Licensor will defend, indemnify and hold harmless the
Licensee and its officers, employees and agents from and against all damages,
costs, liabilities, expenses, judgments, actions, demands, debts, commercial
losses and claims suffered or incurred by such persons, including reasonable
legal fees and disbursements as a result of any breach or default by the
Licensor of its representations, warranties, covenants, obligations and
agreements in this Agreement.
5.2 Licensee will protect, indemnify and hold harmless Licensor and its
officers, employees and agents from and against all damages, costs, liabilities,
expenses, judgments, actions, demands, debts, commercial losses and claims
suffered or incurred by such persons, including reasonable legal fees and
disbursements as a result of any breach or default by the Licensee of its
representations, warranties, covenants, obligations or agreements contained in
this Agreement.
6. TERM AND TERMINATION
6.1 The term of this Agreement will commence on the Effective Date and will
remain in effect for a term of 10 years unless earlier terminated as set forth
herein.
6.2 Licensor may terminate this Agreement at any time in the event that (a)
either Licensee is in material breach of its obligations under this agreement
and (b) that material breach continues unremedied for a cure period of thirty
(30) days after written notice of that breach is sent by Licensor. Moreover,
either party may terminate this Agreement after the Effective Date upon thirty
(30) days written notice for any reason whatsoever.
6.3. This Agreement shall immediately terminate with respect to Licensee,
without the requirement of any notice from Licensor, upon the occurrence of any
of the following:
a. if Licensee shall file a petition in bankruptcy or
make an assignment for the benefit of creditors, or if any bankruptcy proceeding
or assignment for the benefit of creditors shall be commenced against Licensee
and not be dismissed within sixty (60) days after the date of its commencement;
b. the insolvency of Licensee
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c. the cessation by Licensee of a substantial portion of
its business;
d. any act by Licensee or any agent which Licensor
reasonably believes is in violation of the Foreign Corrupt Practices Act (15
USCS 7dd-1), as amended from time to time; or
e. if Licensee intentionally permits any Rights to be
used illegally or outside the terms of this Agreement, including, without
limitation, using, reselling or exporting the Rights outside South Africa.
6.4. This Agreement shall immediately terminate, without the right to cure and
without notice from Licensor, in the event of any unauthorized use of the
Rights.
6.5 Upon the expiration or the termination of this Agreement, all rights granted
to Licensee shall terminate and revert to Licensor. Licensee shall execute all
instruments reasonably required to confirm that reversion of rights and
termination of this Agreement.
6.6. Upon expiration or earlier termination of the this Agreement, Licensor
shall immediately cease further exercise of any Rights and/or License granted
hereunder.
7. GENERAL
7.1 Except as herein otherwise provided, no subsequent alteration, amendment,
change, or addition to this Agreement will be binding upon the parties unless
reduced to writing and signed by the parties.
7.2 This Agreement represents the entire agreement of the parties with respect
to the subject matter referred to herein and there are no representations,
warranties, collateral agreements, or conditions except as herein specified.
7.3 The parties will execute and deliver all such further documents, do or cause
to be done all such further acts and things, and give all such further
assurances as may be necessary to give full effect to the provisions and intent
of this Agreement.
7.4 This Agreement will be governed by and construed exclusively in accordance
with the laws of the State of California without regard or application of its
conflicts or choice of law provisions.
7.5 This Agreement will inure to the benefit of and be binding upon the parties
and their respective successors and permitted assigns. Licensee shall not assign
this Agreement or any of its rights, licenses or privileges, without the prior
written permission and consent of Licensor. Licensor may assign this Agreement
without restriction.
7.6 If any covenant or other provision of this Agreement is invalid, illegal, or
incapable of being enforced by reason of any rule of law or public policy, then
such covenant or other provision will be severed from and will not affect any
other provision of this Agreement, and this Agreement will be construed as if
such invalid, illegal, or unenforceable provision had never been contained in
this Agreement. All other conditions and provisions of this Agreement will,
nevertheless, remain in full force and effect and no covenant or provision will
be deemed dependent upon any other covenant or provision unless so expressed
herein.
7.7 No waiver of any of the provisions of this Agreement by either party will
constitute a waiver of any other provision (whether or not similar), nor will
any waiver constitute a continuing waiver unless otherwise expressly agreed in
writing.
7.8 The Licensor and the Licensee will comply with all applicable laws, rules
and regulations of competent public authorities relating to their respective
covenants and obligations under this Agreement and will procure all applicable
licences and will pay all fees and other charges required thereby.
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7.9 Nothing contained herein will be deemed or construed to create between the
parties a partnership, joint venture or relationship of principal and agent or
employer and employee. Neither party will have the authority to act on behalf of
the other party or to commit the other party in any manner or cause whatsoever
or to use the other party's name in any way not specifically authorized by this
Agreement. Neither party will be liable for any act, omission, representation,
warranty, obligation or debt of the other party even if informed of such act,
omission, representation, warranty, obligation or debt.
7.10 Neither party shall be liable to the other for any loss, damage or default
occasioned by strike, civil disorder, governmental decree or regulation, acts of
God or any other force majeure. Notwithstanding the event of a force majeure,
all payments due to Licensor hereunder shall continue to be due and owing.
7.11 The section headings used in this agreement are for convenience only and
shall have no legal effect whatever.
7.12 Where appropriate in context throughout this agreement, the use of the
singular shall include the plural, any shall include all, and the disjunctive
shall include the conjunctive, and vice versa.
7.13 This agreement may be executed in several counterparts, each of which will
be deemed to be an original, and each of which alone and all of which together,
shall constitute one and the same instrument. This agreement may be transmitted
by facsimile, and it is the intent of the parties for the facsimile of any
signature printed by a receiving facsimile machine to be an original signature
and for the facsimile and any complete photocopy of the agreement to be deemed
an original counterpart.
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed and delivered, to have effect as of the Effective Date.
NETSTAFF, INC.
BY: /S/ XXXXXXX XXXXX
TITLE: PRESIDENT, CEO
COMMODORE SALES CORP.
BY: /S/ XXXXX XXXXXXX
Title: President
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SCHEDULE "A"
Two days prior to the due payment date of the second instalment of license fee
of US$500,000, the Licensor shall produce a report to the Licensee demonstrating
the effectiveness of the MLS system used in US by providing a list of staffing
companies or corporations registered with NetStaff as members of the MLS
service, which list of staffing companies or corporations should be a minimum
number of Forty (40).
Two days prior to the due payment date of the third and final instalment of
license fee of the net balance (US$2,000,000 gross sum less agreed upon
expenses), the Licensor shall produce a report to the Licensee of a list of
staffing companies or corporations registered with NetStaff as members of the
MLS service, which list of staffing companies or corporations should be a
minimum number of One Hundred (100).
Any and all interest accruing on the above-said amounts pending Licensor's
fulfillment of the terms set forth above, shall belong exclusively to, and shall
be deemed to be the property of, NetStaff and shall be payable at the same time
that each of the principal installments is paid.
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