EUROPA GLOBAL, INC. EXCLUSIVE LICENSING AGREEMENT
This exclusive licensing agreement ("Agreement") dated the 12th day of
December, 2000 by and between Europa Global, Inc. (EGI), a Colorado corporation
whose address is 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxxxxx, XX 00000 and
Maximum Dynamics, Inc., ("Company"), a Colorado corporation, having an address
of 0 X. Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000.
WHEREAS, Europa Global has developed and owns the Technology, as defined and
specified below; and
WHEREAS, The Company desires to obtain an exclusive license from Europa Global,
and Europa Global desires to license its technology to the Company, and to grant
the Company an exclusive, five (5) year license to use the Technology within the
Company's Field of License, all as defined and specified below and subject to
the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS.
In this Technology Purchase and License Agreement the following words and
expressions shall bear the meanings set opposite them:
the "Agreement" - this Technology Exclusive License Agreement, the preamble and
all exhibits and schedules thereto;
"Improvements" - all improvements, enhancements or modifications to the Europa
Global's Technology made by either party during the term of this Agreement;
the "Technology" - the existing financial software in its present state as
defined by Exhibit A, as well as documented know-how and intellectual property
developed by Europa Global, and specifically used at Europa Global for its
business activities, including the prototypes, drawings, designs, diagrams,
computer programs and their sources, design assurance data and other tangible
technical information used at Europa Global for the development of the software;
the "Company's License" - the license granted by Europa Global to the Company
under SECTION 3.2 hereof;
the "Company's Field of License" - the commercial exploitation of the Technology
and the products to be developed or derived therefrom.
2. EUROPA GLOBAL'S REPRESENTATIONS.
The Technology has been developed and is owned solely by Europa Global,
and Europa Global's rights therein are free and clear of any lien, charge,
claim, preemptive right or any other encumbrance or third party rights. Neither
the execution and delivery of this Agreement nor, to Europa Global's best
knowledge and without having conducted any special investigation, the use by the
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Company of the Technology, shall violate or infringe the rights of any other
person, firm or entity, nor has any person, firm or entity made or threatened
Europa Global with any claim that will interfere with the Company's use of the
Technology in accordance with the terms of this Agreement, and nor will the
execution, delivery or performance by Europa Global of this Agreement constitute
a breach of any law, agreement or instrument to which Europa Global is a party
or by which it is bound.
3. SALE AND LICENSE OF TECHNOLOGY.
3.1 Europa Global hereby sells to the Company, and the Company hereby
purchases from Europa Global all of Europa Global's right, title and
interest in and to Europa's Technology, free and clear of any lien,
charge, claim, license, preemptive right or any other encumbrance or third
party right, except for the Europa Global License, as provided for under
SECTION 7 below and the restrictions on the Company's use thereof as
provided for under SECTION 3.3 below. In order to give full effect to this
transaction, Europa Global shall deliver to the Company, together with
this Agreement, the rights to a five (5) year exclusive license, duly
signed by Europa Global.
Europa Global agrees to execute upon the request of the Company such
additional instruments, applications, declarations and forms, as may be
necessary under any relevant law or as may be required by any official or
authority, to continue, secure, defend, register and otherwise give full
effect to, and perfect the rights of the Company, including to register
the assignment of the license in the name of the Company.
3.2 (a) Europa Global hereby grants to the Company, and the Company hereby
accepts, a world-wide, exclusive, royalty-free, and five (5) year license
to use the Technology, solely for the purpose of commercial exploitation
(the "COMPANY'S LICENSE"). The Company's License shall be transferable
only in accordance with the provisions of Section 6 below.
(b) Except for Europa Global's limited right to rescind the Company's
License as specifically provided in Section 3.3 below, the Company's
License shall be irrevocable and the only remedies for any breach of its
terms shall be damages and/or injunctive reliefs.
(c) The Company's License granted hereby shall be effective upon the
execution and delivery of this Agreement, without necessity for any
further action or writing, subject however to the payment by the Company
of the consideration as provided in SECTION 5 below. Upon the Company's
written request, Europa Global shall forthwith confirm in writing the
Company's License and, at the Company's expense, shall execute any forms
or instruments necessary for the filing, registering, perfecting,
defending and recording of the Company's License at any appropriate
governmental offices or other competent authorities, in the United States
or abroad.
(d) Subject to the Company's License granted hereby, Europa Global shall
retain all rights to the Technology as the sole owner thereof.
3.3 The use of the Technology by the Company contrary to the provisions of
this SECTION 3.2(a) shall constitute a material breach of this Agreement,
and unless the Company shall cease making such use within thirty (30) days
from receiving Europa Global's first written notice of same, Europa Global
shall be entitled to rescind the Company's License by giving the Company a
written notice to that effect.
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4. TANGIBLES, TECHNICAL SUPPORT AND PERSONNEL.
4.1. As soon as practicable following the signing hereof, Europa Global shall
deliver to the Company all the tangible Technology.
4.2. For the commercial exploitation by the Company, from time to time as
shall be coordinated between the Company and Europa Global, at the
Company's request and subject to Europa Global's security restrictions
and available manpower and facilities, Europa Global shall provide the
Company with: (i) related equipment, provided however, that the Company
shall be liable for any loss or damage to Europa Global or to any third
party caused by any of the Company's personnel (unless the person who
caused such loss or damage was acting in accordance with Europa Global's
written instructions), (ii) reasonable assistance in technical guidance
and instructions regarding the Technology, as shall be required for the
Company's technical staff to gain acquaintance thereof; and (iii) free
access to Europa Global's existing documentation as required for
developing and improving the Technology by the Company's technical staff,
consultants and other experts employed thereby.
4.3. The Company may request Europa Global from time to time that employees of
Europa Global will provide consulting or other services similar in nature
to the Company, and Europa Global shall give due consideration to such
requests on a case by case basis, subject to the availability of such
employee and customary terms of Europa Global for such purpose.
5. CONSIDERATION.
In consideration for the Technology and the Company's License, the Company shall
pay Europa Global the amount of US$40,000 (forty thousand US Dollars). Payment
shall be in the form of stock based compensation, calculated as 2,000,000 shares
of the Company's Common Stock at a price of $0.02 per share. Such shares shall
be restricted stock as defined by Rule 144 of the Securities and Exchange Act of
1933.
6. TRANSFERABILITY OF OTHER TECHNOLOGY.
Any transfer license or sub-license by the Company (a "TRANSFER") of any
currently existing Technology which is not in the public domain, or any of the
Company's rights under Sections 4, 8, 10 and/or 11 of this Agreement, to any
third party shall be limited at all times for use only within the Company's
Field of License, and further, shall be conditioned upon the prior written
consent of Europa Global, which consent shall not be unreasonably withheld,
except for a Transfer to an affiliate which shall not require such consent. The
term "affiliate" shall mean, an entity which shall first agree to abide by the
terms hereof, and in which either the Company or Europa Global shall hold at the
time of such Transfer, directly, the majority of voting rights assuring the
effective control therein in a permanent fashion, and such control shall be
maintained at all times unless Europa Global has otherwise consented in writing
and in advance, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Europa Global's rights under the Europa Global
License shall in no way be impaired by virtue of any Transfer.
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Any of Europa's Technology shall be freely transferable by the Company, subject
only to the Europa Global's License, and a prior written notice by the Company
to Europa Global of any intended Transfer thereof.
7. INFRINGEMENTS.
In the event of any infringement by a third party of any of the licensing rights
in the Company's Field of License, Europa Global may take all legitimate steps
to halt such infringement, and otherwise the Company may take such steps. Europa
Global may request the Company to lend its name to such proceedings and provide
reasonable assistance and the Company will do so subject to Europa Global
covering the expenses it may incur.
8. IMPROVEMENTS.
8.1 Where a party to this Agreement has made an Improvement, the other party
shall be entitled to be notified in confidence of the general nature of
such Improvement, except insofar as such disclosure would disclose
information deriving from and subject to confidentiality obligations in
favor of a third party and, in case of Europa Global, subject to all
requisite defence consents. For the foregoing purpose, either party may
from time to time, by notice to the other, convene a joint meeting of the
parties' senior technical personnel, at which meeting any Improvements
made by each party shall be disclosed to the other party, as provided
above. If the other party is interested in obtaining rights in such
Improvement, the parties shall negotiate royalties or other consideration
therefor. Upon agreement, the party which made the Improvement shall grant
to the other exclusive rights (in the case of Europa Global subject to all
requisite defence consents) to use and exploit such Improvement.
8.2 Where one party hereto has developed an Improvement, and the other party
has notified that it is interested in obtaining patent protection for such
Improvement, then the first party shall not publish the same or do
anything that might prejudice the validity of any patent or trademark that
might subsequently be granted on it for such time as may be reasonably
required to prepare and file an application for patent or other
protection. Such patent or trademark shall be in the name of the party
requesting the patent or trademark who shall also bear all costs and
expenses connected therewith.
9. EUROPA GLOBAL'S SERVICES.
9.1 The Company may from time to time request to engage Europa Global as a
sub-contractor for providing research, development or prototype
development services to the Company in connection with the Technology (the
"SERVICES"), and Europa Global shall endeavor to meet such request,
subject to its priorities and its available manpower, facilities and other
resources. The Services shall be provided under terms as are customary in
such engagements of Europa Global and which the Company and Europa Global
shall agree, and Europa Global shall be entitled to charge the Company for
Services rendered the going commercial rates.
9.2 Notwithstanding the foregoing, where the Company decides to employ a
sub-contractor for Services, and the Company has a choice between Europa
Global and another one or more sub-contractors, the Company shall
nevertheless be obliged to employ such Services of Europa Global, if
Europa Global's Services are competitive in respect of quality, quantity,
time and price with those offered by such other sub-contractors.
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10. CONFIDENTIALITY.
10.1 Subject to the exclusions set forth in SECTION 10.2 below, (a) the
Company hereby agrees to keep the Technology confidential, (b) Europa
Global hereby agrees to keep the Company's development of the Technology
confidential, and (c) both parties agree to keep confidential any
Improvement which may be disclosed thereto by the other party pursuant to
Section 8 above. For the foregoing purpose, the parties hereby agree to
keep the Technology confidential and to take all reasonably necessary
steps to ensure that its affiliates, officers and employees keep such
information confidential, except for customary disclosures in the
ordinary business practice of either party in connection to its
respective permitted use of the Technology, as applicable, as provided
under this Agreement, including information customarily disclosed in
brochures, manuals of operation and other similar documents.
10.2 The provisions of SECTION 10.1 shall not apply to any information which:
(i) is public knowledge at the date of the Agreement or thereafter
becomes public knowledge through no fault of the receiving party, (ii) is
lawfully received by the receiving party from a third party who either
has the right to disclose it, or is under no obligation of
confidentiality to the disclosing party, or (iii) is disclosed as
required under any applicable law. The burden of proof that any
disclosure falls within any of the aforesaid exclusions shall be on the
disclosing party. Where a doubt exists, as to whether any of the
aforesaid exclusions apply, the party seeking to disclose shall give the
other party a written notice and, if a dispute arises, then such party
shall keep such information confidential until the dispute is settled or
resolved in an appropriate court of law, subject to any temporary relief
which the party seeking the disclosure shall be entitled to apply for to
such court.
11. EUROPA GLOBAL'S LIABILITY; INDEMNIFICATION.
11.1 Europa Global shall promptly indemnify the Company against any losses,
damages, costs and expenses incurred by Company as a direct result of any
representation of Europa Global contained in SECTION 2 above proven by
the Company as materially untrue or incorrect, provided, however, that
all indemnifications, compensations or other payments which Europa Global
may become liable for hereunder shall in no event exceed the total
consideration amount specified in SECTION 5 above.
11.2 The Company shall not be entitled to the above indemnity, unless, if any
claim, suit, action or other proceeding to which the indemnity set forth
above applies is brought against the Company, it shall give Europa Global
prompt notice of same, and Europa Global and the Company shall coordinate
and cooperate in the defense of such claim, suit, action or other
proceeding. If the Company seeks such indemnity from Europa Global, then
neither the Company nor Europa Global shall adjust, settle or compromise
any claim, suit, action or other proceeding brought against it to which
the indemnity set forth herein applies without the prior written consent
of the other party which consent shall not be unreasonably withheld;
provided, however, that Europa Global shall be entitled to adjust, settle
or compromise any such claim, suit, action or other proceeding without
the prior written consent of the Company if such adjustment, settlement
or compromise is monetary only and in an amount which is fully covered by
the indemnification under SECTION 11.1 above.
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12. NOTICES.
Any notice or other communication required or authorized under this Agreement to
be given by any party to the other party may be personally delivered, mailed,
transmitted by telex, facsimile, or other electronic mean, however such notice
shall operate and be deemed to have been served upon its actual receipt by the
other party or upon the third working day in the postal service from its
dispatch by registered mail, postage prepaid and return receipt requested,
addressed to the other party's address as stated below:
If to Europa Global:
Europa Global, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
If to the Company:
Maximum Dynamics, Inc.
0 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
13. MISCELLANEOUS.
13.1 In the event that Europa Global becomes a corporate or other legal
entity, then Europa Global shall be entitled to assign all or part of it
rights and obligations hereunder to such corporation or entity, which
shall become party to this Agreement with respect to the rights and
obligations assigned thereto. If any Technology is transferred to such
corporation or entity, such transfer shall be subject to the Company's
License granted to the Company hereunder and the Company's rights related
thereto. Except as provided in this SECTION 13.1 and in SECTION 6 above,
neither this Agreement as a whole nor any right or obligation hereunder,
shall be assignable by any party without the prior written consent of the
other party.
13.2 This Agreement may be executed in two or more counterparts each of which
shall be deemed an original but all of which constitute one and the same
instrument.
13.3 Save as expressly provided herein, this Agreement may be amended or
terminated, and any of the terms hereof waived, only by a document in
writing specifically referring to this Agreement and executed by the
parties hereto or, in the case of a waiver, by the party waiving
compliance. The failure of either party hereto at any time or times to
require performance of any provisions hereof shall in no manner affect
this right at a later time. No waiver by either party hereto of a breach
of any term contained in this Agreement, in any one or more instances,
shall be deemed or construed as a further or continuing waiver of any
such breach or a waiver of any breach of any other form.
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13.4 If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
this Agreement as a whole, but this Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and all other rights and obligations of the parties shall
survive to the maximum extent permitted by law.
13.5 This Agreement and the rights and obligations of the parties hereunder or
pursuant hereto shall be governed by and construed in accordance with the
laws of the State of Colorado. The parties hereby submit to the exclusive
jurisdiction of the competent courts situated in any court of the State
of Colorado for the purpose of any suit, action, or other proceeding
arising out of this Agreement in all matters relating to this Agreement.
13.6 Words herein denoting the singular number only shall include the plural
and vice versa.
13.7 The headings and section in this Agreement are inserted for convenience
only and shall not affect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Technology Transfer
and License Agreement on the day first written above.
Europa Global, Inc. Maximum Dynamics, Inc.
By: Xxxxxxx Xxxxx By: Xxxx X. Xxxxxx
Signature: Signature: /s/ Xxxx X. Xxxxxx
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Title: President Title: Chief Executive Officer
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EXHIBIT A
Description of Technology
The Technology to be licensed by Europa Global is a web-based financial software
that allows for the administration of hedge funds.
The Technology is written in PERL programming language and is designed with
numerous security features built into it, such as seven levels of hierarchical
administrative and user access along with passwords to provide overall security.
All transactions are recorded and stored showing who made the transaction and
the date on which it was enacted, helping to keep third party administrators
from conducting fraud.
All Internet sessions use Secure Socket Link (SSL) and Secure Tunneling
technology to encrypt the entire exchange of information between the Company's
clients Internet browser and the fund's server.
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