LICENSE AGREEMENT
THIS LICENSE AGREEMENT effective as of this 16th day of December, 1997,
by and between NETWORK SYSTEM TECHNOLOGIES, INC., a California corporation,
hereinafter referred to as "LICENSOR," and SKYLYNX EXPRESS HOLDINGS, INC., a
Delaware corporation, "LICENSEE."
RECITALS
WHEREAS, LICENSOR owns, either alone or jointly with others, and is in
the process of acquiring, and otherwise has the right to utilize and license
certain intellectual property and related technology and documentation
hereinbelow more fully described; and
WHEREAS, LICENSEE desires to obtain a non-exclusive, perpetual, world-
wide license to utilize LICENSOR's current products, service and technology
and such patents, copyrights and other improvements hereafter developed with
respect to existing products, services and technology upon the terms and
conditions hereinbelow set forth;
NOW, THEREFORE, in consideration of these premises and of the mutual
covenants and agreements hereinafter set forth, LICENSOR and LICENSEE hereby
agree as follows:
SECTION 1: DEFINITIONS
-----------
1.1 "Product" or "Products" and "Service or "Services" shall
mean any application or implementation utilizing the Licensed Patents,
Licensed Copyrights and/or Licensed Technology.
1.2 "Licensed Patents" means any patents that may issue from
the Licensed Technology and any patents which may issue from any divisional,
continuation, reissue or substitute application based thereon, including any
patents which issue from applications not yet made as of the date of this
Agreement.
1.3 "Licensed Copyrights" means any and all copyrights which
LICENSOR has or may acquire with respect to the Licensed Technology,
including, without limitation, any and all user interface computer programs,
whether or not published or copyrighted, together with all associated or
related user manuals and documentation, as well as any copyrights which may
arise from future original works of authorship which are a continuation of, or
derivation from, the Licensed Technology and Licensed Copyrights.
1.4 "Licensed Technology" means any trade secret, intellectual
property, confidential information, patents, know-how and inventions related
in any manner to any portion or phase of any scientific or technical
information, designs, including circuit designs, process, procedure, formula,
improvement or other information related thereto, as well as practices and
methods of combining components in the design and operation of network
systems, together with all related end-user documentation, developed and owned
by LICENSOR and underlying, incorporated into or related to the technology
developed by LICENSOR and used in connection with the operation of present
two-way asymmetrical wireless communications and other wireless developments
and technology ("Area of Interest"), including all components and applications
thereof, which LICENSOR owns, licenses and/or controls through itself or
jointly with others, including, without limitation, the technology and know-
how described on Exhibit A hereto. All documentation pertaining to the
Licensed Technology shall be placed in escrow with a mutually agreeable third
party to be made available to LICENSEE in the event LICENSOR fails to perform
under this License and related agreements.
1.5 "Future Improvements" means any and all inventions and
improvements in processes, designs, and applications relative to the articles
falling within the scope of the Licensed Patents and Licensed Technology,
made, devised or discovered by LICENSOR or by LICENSEE, either alone or
jointly with others as related to present Products.
SECTION 2: LICENSE GRANT
-------------
2.1 Subject to the conditions set forth in this Agreement, the
LICENSOR hereby grants to the LICENSEE a non-exclusive, world-wide, royalty-
free license to the Licensed Patents, Licensed Copyrights and Licensed
Technology and a non-exclusive, world-wide, royalty-free right to sell and
put into use worldwide the Licensed Patents, Licensed Copyrights and Licensed
Technology, as related solely to LICENSOR's present products, services,
technology and Future Improvements thereof.
2.2 LICENSOR hereby agrees to extend the License Agreement to
include any and all future patents and patent applications, copyrights,
computer programs, inventions, improvements and discoveries in products and
processes relative to the articles falling within the scope of the License
granted in Section 2.1 above.
2.3 LICENSOR hereby agrees to extend the License Agreement to
include any and all patents or copyrights on Future Improvements made, devised
or developed by LICENSOR or under the direction or supervision of LICENSOR.
2.4 LICENSOR hereby grants to LICENSEE a non-exclusive
license, to use and to sell, or otherwise dispose of, subject to the terms and
conditions of this Agreement, any and all current Products and provided any
and all Services in a manner which shall maintain the confidential nature of
the Licensed Patents, Licensed Copyrights and Licensed Technology.
SECTION 3: TRADEMARKS AND SERVICEMARKS
---------------------------
3.1 During the term of this License, LICENSEE shall have the
right to make, devise and develop for use in connection with the commercial
sale or exploitation of Products or Services such additional Trademarks or
Servicemarks as LICENSEE may desire. Any and all Trademarks or Servicemarks
developed by LICENSEE for use in connection with the sale of Products or
Services shall be and remain the sole, exclusive and separate property of
LICENSEE, free of any claim of LICENSOR, and LICENSEE shall have the sole
right to apply to and obtain registrations of such marks. LICENSEE shall be
under no obligation to utilize the Trademarks or Servicemarks of LICENSOR
hereunder.
SECTION 4: USE OF LICENSED PATENTS, COPYRIGHTS, TECHNOLOGY AND FUTURE
IMPROVEMENTS
----------------------------------------------------------
4.1 As between the parties, LICENSEE shall be responsible for
the determination of the marketing and distribution of Products and/or
Services exploiting the Licensed Patents, Licensed Copyrights and Licensed
Technology. LICENSEE shall likewise be solely and exclusively responsible for
any and all costs, obligations, liabilities and debts which may be created or
incurred in connection with the use or other exploitation of the Licensed
Patents and Licensed Technology. LICENSEE agrees to indemnify and hold
harmless LICENSOR from any and all liability with respect to such obligations
and expenses incurred by LICENSEE.
SECTION 5: PRODUCT AND SERVICE
-------------------
5.1 In each market where LICENSEE installs a networking system
under this License, LICENSOR and LICENSEE shall negotiate in good faith and
enter into a General Operating Agreement ("GOA") to implement the provisions
of this Section 5. To the extent the terms of the GOA are inconsistent with
the terms hereof, the provisions of the GOA shall be deemed to supersede and
modify the terms hereof. However, in the absence of such a GOA, the
provisions of this Section 5 shall control.
5.2 For the term of this Agreement, at LICENSEE's request
LICENSOR agrees to supply to LICENSEE the equipment and computer software
utilizing the Licensed Patents, Licensed Copyrights and Licensed Technology in
such quantity as shall satisfy LICENSEE's requirements for the sale,
installation, operation and monitoring of wireless network systems. In
addition, for the term of this Agreement, at LICENSEE's request LICENSOR
agrees to supply to LICENSEE full system integration services on behalf of
LICENSEE to fully deploy for customers and clients of LICENSEE on a turnkey
basis asymmetric wireless communication networks. Such services shall
include, without limitation, system design and installation, network
deployment, personal training and testing, and initial end-user alpha site
installation. Once the system has been fully deployed, LICENSOR will provide
support for any changes, additions or alterations to the subscriber database.
Furthermore, LICENSOR shall agree to monitor all system operations on behalf
of LICENSEE and its customers through LICENSOR's network operations center
("NOC"). The NOC will be used throughout the term hereof to monitor and
control wireless networks from LICENSOR's centralized location and to maintain
the integrity of databases of various network elements as well as provide
administration and support to monitor and prevent unauthorized subscriber
remote link adapters in distribution channels. Such NOC operations and
monitoring shall be offered and available on a full-time, seven-day-per-
week/24-hour-per-day basis by pager until there is sufficient volume for full
monitoring in order to provide full-time network support services to wireless
operators, end-user customers and regional support centers.
5.3 SCHEDULES. No less frequently than every quarter,
LICENSEE shall provide LICENSOR with a written schedule setting forth the
quantities of systems which it desires to purchase and install and a date that
it desires to have those systems operational. Each schedule shall cover
installations for a ninety (90) day period and shall be delivered to LICENSOR
no later than ninety (90) days prior to the commencement of the period covered
by the notice. Such schedule may be modified by LICENSEE upon sixty (60) days
written notice to LICENSOR, subject to LICENSOR's consent and capability to
meet any amended schedule.
5.4 PRICE FOR PRODUCT AND SYSTEMS. The parties are not now
certain of the actual costs of the systems, however, the price of said systems
shall be LICENSOR's best cost offered to preferred customers. Furthermore,
LICENSEE shall be entitled to volume discounts from prevailing prices based
upon the forecast orders provided for in Section 5.2.
5.5 FEES FOR SERVICES. Under the terms of the General
Operating Agreement, for all services to be provided by LICENSOR on behalf of
LICENSEE as described in Section 5.1 above, LICENSEE agrees to pay to LICENSOR
a sum equal to 9% of gross revenues from network subscribers in such market,
payable quarterly. Notwithstanding the foregoing, LICENSOR and LICENSEE agree
that such fee may be subject to adjustment under certain circumstances.
Further, LICENSOR agrees to adjust such fee from time to time to ensure that
the fee payable by LICENSEE represents the most favorable terms offered by
LICENSOR to preferred customers and system operators.
5.6 PAYMENT. LICENSEE shall pay each invoice no later than
thirty (30) days of the date thereof. If payment of any invoice is made
thereafter, a late payment fee of one percent (1%) will be added to the net
amount.
5.7 ACCEPTANCE. All deliverables under this Agreement shall
be subject to acceptance by LICENSEE. Any rejection shall be reasonable and
in writing by LICENSEE and shall set forth in detail the reasons therefor. If
LICENSEE does not reject any deliverable within forty-five (45) days, it shall
be deemed to be accepted. If LICENSEE rejects any deliverable or portion
thereof, it shall be deemed rejected for all purposes of this Agreement.
LICENSOR shall thereupon have thirty (30) days from the date of rejection to
correct the rejected deliverable and resubmit the same to LICENSEE for
acceptance (or rejection) in accordance with the foregoing. If LICENSEE twice
rejects the same deliverable, or any portion thereof, LICENSOR shall be deemed
to be in default of a material provision of this Section 5 of this Agreement,
and LICENSEE may terminate/cancel this Section 5 of the Agreement.
5.8 RISK OF LOSS. Risk of Loss shall pass to LICENSEE as soon
as the system is installed and operational. LICENSEE shall pay all costs of
insurance from the time that risk of loss passes to LICENSEE. LICENSOR agrees
to cooperate fully with LICENSEE with respect to LICENSEE's obtaining
insurance protection for the system.
5.9 DELAY. Neither party shall be responsible for any losses
resulting if the fulfillment of any of the terms of this Agreement is delayed
or prevented by causes beyond the control of the party whose performance is
interfered with, and which, by the exercise of reasonable diligence, such
party is unable to prevent.
5.10 WARRANTIES AND DISCLAIMERS. LICENSOR warrants that it
will supply systems in conformity with the mutually-agreed specifications and
that the systems will be free from defects in material and workmanship. In
the event that any systems or part thereof shall prove to be defective in
workmanship or materials within a period of six (6) months from the delivery
thereof, LICENSOR shall repair or replace the same without cost to LICENSEE.
The foregoing warranties shall be transferrable to end-users of the system
from LICENSEE. LICENSOR shall not be liable to LICENSEE or its end-users for
the warranty provisions of this paragraph 5.9 if (i) modifications are made to
the systems by someone other than LICENSOR; or (ii) the systems are subject to
misuse or abuse.
5.11 ASSIGNMENT AND DELEGATION. LICENSOR may not assign this
Agreement nor delegate performance of the duties hereunder without the prior
written consent of LICENSEE, which consent shall not be unreasonably withheld.
This Agreement and all rights hereunder may not be assigned by LICENSEE
without the prior written consent of LICENSOR, which consent shall not be
unreasonably withheld.
5.12 SUBCONTRACTING. LICENSOR may subcontract the performance
of any work hereunder which it deems necessary or desirable; provided however,
that LICENSEE may object to such subcontractor for good cause. Any party
subcontracting with LICENSOR must agree to submit itself to the jurisdiction
of U.S. courts and be bound by the terms and conditions of this Agreement.
LICENSOR shall be primarily responsible for all acts, omissions and
performance of such subcontractors.
SECTION 6: FUTURE ENHANCEMENTS AND DEVELOPMENTS
------------------------------------
6.1 RIGHTS TO FUTURE IMPROVEMENTS
6.1.1. During the term of this Agreement, any and all
Future Improvements on existing Product, Service and Technology developed,
designed, made or devised by LICENSOR with respect to the Licensed Technology
shall remain the sole, exclusive and separate property of LICENSOR, but shall
be deemed subject to the non-exclusive License hereby granted.
6.1.2. During the term of this Agreement, any and all
inventions, discoveries, devices, designs, apparatus, practices, methods,
processes or products (hereafter individually or collectively the
"Inventions"), whether or not patentable or copyrightable, made, developed,
perfected, devised, conceived, either solely or jointly with others, by
LICENSOR within the Area of Interest, shall be made available to LICENSEE on a
favored nation basis pursuant to paragraph 11 of Amendment No. 1 to Agreement
and Plan of Reorganization dated August 5, 1997 between LICENSOR and LICENSEE.
The terms and conditions that such Inventions shall be made available to
LICENSEE hereunder shall be subject to the provisions of Section 5 hereof.
SECTION 7: TERM
----
The License herein granted to LICENSEE shall terminate upon the
first to occur of any of the following:
7.1 LICENSEE shall become insolvent or shall make an
assignment of assets for the benefit of creditors, file or petition for relief
under federal bankruptcy law, whether voluntary or involuntary;
7.2 By LICENSEE at any anniversary during the term hereof upon
six (6) month's prior written notice by LICENSEE to LICENSOR;
7.3 LICENSEE or LICENSOR shall default under any provision of
this Agreement, which default shall remain uncured after sixty (60) days'
written notice.
SECTION 8: RIGHTS ON TERMINATION
---------------------
8.1 In the event this Agreement should terminate pursuant to
the provisions of Section 7 above, then and in such event all rights of
LICENSEE in and to the Licensed Patents, Licensed Copyrights and Licensed
Technology, together with any and all Future Improvements, shall terminate,
expire and be of no further legal force or effect. In such event, all rights
in and to the Licensed Patents, Licensed Copyrights and Licensed Technology
shall revert LICENSOR, free of any claim or interest of LICENSEE.
SECTION 9: PROPRIETARY RIGHTS OF LICENSOR
------------------------------
LICENSEE recognizes and agrees that the Licensed Patents,
Licensed Copyrights and Licensed Technology, including any documentation, is
subject to proprietary rights of LICENSOR and that LICENSOR retains, all such
proprietary rights, which include trade secret, copyright, inchoate patent and
patent, and any other form of proprietary right, and that these proprietary
rights of LICENSOR are protected by civil and criminal law, are very valuable
to LICENSOR, and that the use and disclosure of the Licensed Technology must
be carefully and continuously controlled by LICENSEE. LICENSEE shall keep
each and every item of the Licensed Technology free and clear of any claims,
liens and encumbrances except the ownership rights of LICENSOR; and any act of
LICENSEE, voluntary or involuntary, purporting to create a claim, lien or
encumbrance on any item of the Licensed Technology shall be void.
SECTION 10: WARRANTY AND COVENANTS
----------------------
10.1 LICENSEE warrants and represents that the execution and
delivery of this License Agreement by LICENSEE will not and do not contravene
LICENSEE's Articles or Certificate of Incorporation or ByLaws, or any law or
any contractual restriction binding upon or affecting the LICENSEE; or
violate or contravene any rights of any creditors or lienholders respecting
LICENSEE or LICENSEE's assets; or violate any other provision of any law,
rule, regulation or determination of any governmental authority or conflict
with, or result in the breach of, or constitute a default under, any agreement
or other instrument or contractual obligation to which the LICENSEE is a party
or by which it or any of its property may be bound or affected. Upon its
execution and delivery herein, this Agreement shall be and constitute the
legal, valid and binding obligation of the LICENSEE and shall be enforceable
against LICENSEE in accordance with its terms and conditions.
10.2 LICENSOR warrants and represents that the Licensed
Patents, Licensed Copyrights and Licensed Technology hereby Licensed do not
infringe upon or violate any patent, copyright, trade secret or any other
proprietary right of any third party. LICENSOR further warrants and
represents that it is not aware of any fraud or misrepresentation, or any
other illegal act, used or employed in the development of the Licensed
Patents, Licensed Copyrights and Licensed Technology or in the proceedings for
or to obtain the issuance of any Licensed Patents hereunder.
10.3 LICENSOR owns and possesses such rights as are or will be
necessary in order for LICENSEE to deploy Products and network systems without
conflicting with or infringing upon any tangible or intangible property rights
of any third party. The activities contemplated by this Agreement do not and
will not infringe upon and no one has asserted to LICENSOR that such
activities conflict with or infringe upon, any intangible property rights
owned, possessed or used by any third party which are of the same kind as the
Licensed Patents, Future Improvements and Licensed Technology.
10.4 At LICENSEE's request and expense, LICENSOR covenants that
it shall take all actions reasonably necessary to maintain any Licensed
Patents, Licensed Copyrights, Future Improvements and Licensed Technology.
SECTION 11: INFORMATION AND CONSULTATION
----------------------------
11.1 LICENSOR shall furnish to LICENSEE, or its nominees, all
end-user information, documentation, diagrams and drawings regarding the
Licensed Patents, Licensed Copyrights Licensed Technology and Future
Improvements, except to the extent that such provision would violate a
covenant to which LICENSOR is subject, as are reasonably necessary to enable
LICENSEE to operate hereunder. LICENSOR shall provide LICENSEE such
additional information as LICENSEE may reasonably request to assist LICENSEE
in the utilization of the Licensed Patents, Licensed Copyrights and Licensed
Technology hereunder.
11.2 LICENSOR shall render to the LICENSEE such services in a
consulting capacity as may be reasonably requested by LICENSEE to instruct the
LICENSEE, or its appointed nominees, with regard to the Licensed Patents,
Licensed Copyrights and Licensed Technology, together with the equipment and
systems utilizing same. LICENSOR shall likewise render consulting services to
LICENSEE for a mutually agreed upon fee, but in no event in excess of
LICENSOR'S rates charged to its preferred customers, to assist LICENSEE in the
installation, maintenance and support of the equipment and systems utilizing
the subject matter hereof, as well as providing training and other support
services to assist in the operation of same.
SECTION 12: DEFENSIVE RIGHTS OF LICENSEE
----------------------------
12.1 In the event of institution of any suit against LICENSEE
alleging infringement of any patent of a third party by reason of the use of
the Products and Licensed Technology, LICENSOR agrees, upon written request of
LICENSEE made after institution thereof,
12.1.1 To undertake and diligently conduct, at
LICENSOR's expense, defense of such suit, and
12.1.2 To hold LICENSEE harmless against any judgment
or award of damages which result therefrom.
12.2 LICENSEE shall render all reasonable assistance to
LICENSOR in connection with any suit to be defended by LICENSOR under this
Section 12 and shall have the right to be represented therein by advisory
counsel of its own choice and at its own expense. LICENSOR shall have full
control of the defense of any such suit, but shall not be free to settle the
same without the consent of LICENSEE if by settlement, LICENSEE would be
obligated to make payments, or if the settlement would impair LICENSEE's
ability to continue operations.
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH
---------------------------------------
13.1 INDEMNIFICATION BY LICENSOR.
13.1.1 The LICENSOR shall indemnify and hold LICENSEE
harmless against and in respect of any damage, loss, liability, cost or
expense, including reasonable attorneys' fees, resulting or arising from or
incurred in connection with:
(i) any misrepresentation, breach of
warranty, or nonfulfillment or nonperformance of any agreement on the part of
LICENSOR under this License Agreement, or any misrepresentation or omission
from any exhibit, schedule, list, certificate or other instrument furnished or
to be furnished by them under this Agreement;
(ii) any and all liabilities of LICENSOR of
any nature whatsoever, whether accrued, absolute, contingent or otherwise and
whether known or unknown, except to the extent disclosed to LICENSEE or to the
extent that any such liability arises from LICENSEE's failure to perform or
discharge, when due, LICENSEE's future obligations;
(iii) any actions, suits, proceedings,
damages, assessments, judgments, costs or expenses incident to any of the
foregoing.
13.2 Promptly after the receipt by LICENSEE of notice of
any claim asserted by a third party that may give rise to LICENSOR's liability
to LICENSEE under this section, LICENSEE shall give to LICENSOR written notice
of such claim and LICENSOR shall be entitled to participate at its own expense
in the defense of any such claim. LICENSOR shall not pay, acknowledge,
compromise or settle any such claim without the written consent of LICENSEE,
which consent shall not be unreasonably withheld.
13.2 INDEMNIFICATION BY LICENSEE.
13.2.1 LICENSEE shall indemnify and hold LICENSOR
harmless against and in respect of any damage, loss, liability, cost or
expense, including reasonable attorneys' fees, resulting or arising from or
incurred in connection with:
(i) any misrepresentation, breach of
warranty, or nonfulfillment or nonperformance of any agreement on the part of
LICENSEE under this Agreement, or any misrepresentation or omission from any
exhibit, schedule, list, certificate or other instrument furnished or to be
furnished by it under this Agreement;
(ii) any and all liabilities of LICENSEE of
any nature whatsoever, whether accrued, absolute, contingent or otherwise and
whether known or unknown, except to the extent that any such liability arises
from LICENSOR's failure to perform or discharge, when due, LICENSOR's future
obligations;
(iii) any actions, suits, proceedings,
damages, assessments, judgments, costs or expenses incident to any of the
foregoing.
13.2.2 Promptly after the receipt by LICENSOR of notice
of any claim asserted by a third party that may give rise to LICENSEE's
liability to LICENSOR under this section, LICENSOR shall give to LICENSEE
written notice of such claim and LICENSEE shall be entitled to participate at
its own expense in the defense of any such claim. LICENSEE shall not pay,
acknowledge, compromise or settle any such claim without the written consent
of LICENSOR, which consent shall not be unreasonably withheld.
13.3 DETERMINATION OF DAMAGES AND RELATED MATTERS.
13.3.1 Upon the occurrence of any event which would
give rise to a claim by LICENSEE against, or to a right of defense or
indemnity by, the LICENSOR pursuant to this License, or in the event that any
suit, action, investigation, claim or proceeding is begun, made or instituted
as a result of which the LICENSOR may become obligated to LICENSEE hereunder,
LICENSEE shall give notice to the LICENSOR of the occurrence of such event
LICENSEE, without further, notice may set off or apply against all amounts due
the LICENSOR, or their affiliates, the full amount for which indemnification
hereunder is provided. The LICENSOR shall have the right, but not the
obligation, to participate, at their own expense, in the defense thereof by
counsel of their choice.
13.3.2 As LICENSEE incurs expenses for which
indemnification hereunder is provided and after any final judgment or award
shall have been rendered by a court, arbitration board of administrative
agency of competent jurisdiction and the expiration of the time in which to
appeal therefrom, or a settlement shall have been consummated, LICENSEE shall
forward to the LICENSOR notice of any sums due and owing by them pursuant to
this Agreement with respect to such matter and they shall be required to pay
all of the sums so due and owing to LICENSEE by certified or bank cashier's
check within ten (10) days of such notice.
13.3.3 Upon the occurrence of any event which would
give rise to a claim by LICENSOR against, or to a right of defense or
indemnity by, the LICENSEE pursuant to this License, or in the event that any
suit, action, investigation, claim or proceeding is begun, made or instituted
as a result of which the LICENSEE may become obligated to LICENSOR hereunder,
LICENSOR shall give notice to the LICENSEE of the occurrence of such event
LICENSOR, without further, notice may set off or apply against all amounts due
the LICENSEE, or their affiliates, the full amount for which indemnification
hereunder is provided. The LICENSEE shall have the right, but not the
obligation, to participate, at their own expense, in the defense thereof by
counsel of their choice.
13.3.4 As LICENSOR incurs expenses for which
indemnification hereunder is provided and after any final judgment or award
shall have been rendered by a court, arbitration board of administrative
agency of competent jurisdiction and the expiration of the time in which to
appeal therefrom, or a settlement shall have been consummated, LICENSOR shall
forward to the LICENSEE notice of any sums due and owing by them pursuant to
this Agreement with respect to such matter and they shall be required to pay
all of the sums so due and owing to LICENSOR by certified or bank cashier's
check within ten (10) days of such notice.
SECTION 14: MISCELLANEOUS
-------------
14.1 PAYMENT OF EXPENSES OF PREVAILING PARTY IN DISPUTE.
Unless otherwise specifically provided for herein, in the event of a dispute
concerning this Agreement, including, without limitation, the issue of
compliance with any term of this Agreement, the court may in its discretion,
direct that the prevailing party shall be entitled to reimbursement from the
other party of reasonable attorneys' fees and other expenses incurred in
resolving the said dispute.
14.2 SURVIVAL AND INCORPORATION OF REPRESENTATIONS. The
representations, warranties, covenants and agreements made herein or in any
certificates or documents executed in connection herewith shall survive the
execution and delivery thereof, and all statements contained in any
certificate or other document delivered by the LICENSOR hereunder or in
connection herewith shall be deemed to constitute representations and
warranties made by the LICENSOR in this Agreement.
14.3 INCORPORATION BY REFERENCE. All appendices to this
Agreement and all documents delivered pursuant to or referred to in this
Agreement are hereby incorporated by reference and made a part hereof.
14.4 PARTIES IN INTEREST. All covenants, agreements,
representations, warranties and undertakings contained in this Agreement by
and on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether or not
so expressed.
14.5 AMENDMENTS AND WAIVERS. This Agreement may not be
amended, nor may compliance with any term, covenant, agreement, condition or
provision set forth herein be waived (either generally or in a particular
instance and either retroactively or prospectively) unless such amendment or
waiver is agreed to in writing by all parties hereto.
14.6 WAIVER. No waiver of any breach of any one of the
agreements, terms, conditions, or covenants of this Agreement by any of the
parties hereto shall be deemed to imply or constitute a waiver of any other
agreement, term, condition, or covenant of this Agreement. The failure of
either party to insist on strict performance of any agreement, term,
condition, or covenant, herein set forth, shall not constitute or be construed
as a waiver of the rights of either or the other thereafter to enforce any
other default of such agreement, term, condition, or covenant; neither shall
such failure to insist upon strict performance be deemed sufficient grounds to
enable either party hereto to forego or subvert or otherwise disregard any
other agreement, term, condition, or covenant of this Agreement.
14.7 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of
California.
14.8 NOTICES. All notices required or permitted hereunder
shall be sufficient if delivered personally or mailed to the parties at the
address set forth below or at such other address as either party may designate
in writing from time to time. Any notice by mailing shall be effective 48
hours after it has been deposited in the United States certified mail, return
receipt requested, duly addressed and with postage prepaid.
LICENSOR:
Network System Technologies, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
LICENSEE:
SkyLynx Express Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
14.9 COUNTERPARTS. This Agreement may be executed by telex,
telecopy or other facsimile transmission, and such facsimile transmission
shall be valid and binding to the same extent as if it were an original.
Further, this Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall together constitute one
agreement.
14.10 CAPTIONS. The caption and heading of various sections
and paragraphs of this Agreement are for convenience only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
14.11 SEVERABILITY. In the event a conflict between any
provision of this Agreement and any statute, law, regulation or judicial
precedent arises , the latter shall prevail, but in such event the provisions
of this Agreement thus affected shall be curtailed and limited only to the
extent necessary to bring it within the requirement of the law. In the event
that any part, section, paragraph or clause of this Agreement shall be held by
a court of proper jurisdiction to be invalid or unenforceable, the entire
Agreement shall not fail on account thereof, but the balance of the Agreement
shall continue in full force and effect unless such construction would clearly
be contrary to the intention of the parties or would result in unconscionable
injustice.
14.12 EXECUTION OF DOCUMENTS. The parties hereto agree to
execute and deliver any and all other documents necessary and convenient to
effectuate the license granted hereby, and both parties, as further
inducement, represent that they have the authority to enter into this
Agreement and to make the foregoing commitments.
14.13 TIME. Time is of the essence of this Agreement and each
of its provisions.
14.14 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof.
There are no representations, warranties, conditions, or obligations except as
herein specifically provided. Any amendment or modification hereof must be in
writing.
14.15 ASSIGNMENT. Neither party may assign this Agreement, or
any rights hereunder, without the express written consent of the other party.
IN WITNESS WHEREOF, the parties have signed the Agreement the date
and year first above written.
LICENSOR:
NETWORK SYSTEM TECHNOLOGIES, INC.,
a California corporation
By: /s/ Xx Xxxxx
----------------------------------
Xx Xxxxx, President
LICENSEE:
SKYLYNX EXPRESS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
