EXHIBIT 10.41
SOFTWARE LICENSE AGREEMENT
This Agreement is made as of June 7, 2000 (the "Effective Date") by and
between OnRadio, a California corporation with offices at 0000 Xxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxx Xxxxxx, XX 00000 ("OnRadio") and XxxxxxXxxxx.xxx,a Nevada
corporation with offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X
0X0 ("Global").
RECITALS
A. WHEREAS, Global and OnRadio have entered into an Asset Purchase
Agreement dated June 6, 2000 concerning the sale of certain contracts for the
provision of streaming media, website hosting, maintenance, content delivery,
and e-commerce and other services to radio station customers (the "Asset
Purchase Agreement").
B. WHEREAS, as part of the transition, OnRadio desires to license certain
rights in its Content Manager software described in Schedule "A" which it has
developed, and Global desires to obtain said rights from OnRadio under the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein, Global and OnRadio agree as follows:
SECTION 1
DEFINITIONS
The following definitions shall apply throughout this Agreement:
1.1 CONTRACTS. "Contracts" shall have the meaning set forth in the Asset
Purchase Agreement.
1.2 CUSTOMERS. "Customer" shall have the meaning set forth in the Asset
Purchase Agreement.
1.3 DOCUMENTATION. "Documentation" shall mean any written documentation
which may exist for the Programs and Source Code as of the Effective Date.
1.4 PROGRAMS. "Programs" shall mean the software programs listed in
Schedule "A". Unless expressly indicated to the contrary herein, the term
"Programs" includes "Updates".
1.5 SOURCE CODE. "Source Code" means the source code and associated source
materials for the Programs.
1.6 UPDATES. "Updates" shall mean revisions, modifications, updates and
corrected versions for the Programs that may be developed by OnRadio during the
term of this Agreement.
SECTION 2
ONRADIO'S OBLIGATIONS
2.1 DELIVERY OF PROGRAMS. OnRadio shall deliver the Programs and Source
Code to Global within six (6) months of the Effective Date.
2.2 UPDATES. From time to time during the term of this Agreement, OnRadio
may create Updates for the Programs. OnRadio shall provide Global with any
necessary Source Code for the Updates. OnRadio shall have no duty to provide
Program or Source Code maintenance, enhancements, updates or upgrades.
2.3 TECHNICAL SUPPORT. OnRadio agrees to provide Global with reasonable
technical support, training and assistance with respect to the use of the
Programs and Source Code in order for Global to provide services under the
Contracts during the term of this Agreement. Global shall designate a single
Global employee as the technical support contact for the Programs and Source
Code. The technical support available until December 6, 2000.
SECTION 3
RIGHTS CONVEYED TO GLOBAL
3.1 GRANT. In accordance with the terms and conditions of this Agreement,
OnRadio hereby grants Global a royalty-free, non-exclusive, non-transferrable,
non-sublicensable right to use the Programs, Source Code and Documentation
solely for the purpose of performing the services set forth in the Contracts for
the Customers (the "Permitted Use"). Global shall have no right to use the
Programs, Software and Documentation for any purpose other than the Permitted
Use.
3.2 DERIVATIVE WORKS. Global shall have the right, in its own discretion,
to independently correct and modify the Programs and Source Code, and create new
code using the Programs, Source Code and Documentation ("Modifications") for the
Permitted Use. Global shall have no right to use the Programs, Source Code and
Documentation to make Modifications for any purpose other than the Permitted
Use.
SECTION 4
PROPRIETARY RIGHTS
Nothing in this Agreement will vest title in Global to any of property
rights including but not limited to copyrights, patents, trade secrets, trade
names and trademarks in the Programs, Source Code and Documetation that have
been licensed under this Agreement. OnRadio reserves all rights not expressly
granted to Global herein. All copies of the Programs, Software and Documentation
made by or for Global as well as any Modifications that are derivative works
under the U.S. copyright laws ("Derivative Works") shall remain the property of
OnRadio.
Global agrees to transfer and assign, and hereby transfers and assigns, all
right title and interest (including without limitation all copyright ownership
therein) in any Derivative Works to OnRadio. Global agrees to cooperate with
OnRadio in perfecting any such assignment of rights. During and after this
Contract, Global will assist OnRadio in every reasonable way, at OnRadio'
expense, to establish original ownership of all such Derivative Works on the
part of OnRadio and secure, maintain and defend for OnRadio's benefit all
copyrights, patent rights, mask work rights, trade secret rights and other
proprietary rights in and to the Programs, Source Code, Documentation and
Derivative Works. Global shall retain ownership of any new code that are the
original works of authorship of Global and which are not Derivative Works.
SECTION 5
TERM
5.1 The license set forth in this Agreement shall commence on the
Effective Date and continue until June 6, 2002 unless terminated earlier as
provided herein.
5.2 This Agreement shall terminate on the thirtieth (30th) day after
either Party gives the other Party written notice of a material breach by the
other Party of any material term or condition of this Agreement, unless the
breach is cured before that day.
5.3 Upon the termination or expiration of this Agreement, Global shall
provide OnRadio with all copies and originals of the Programs, Source Code and
Documentation, as well as any other materials provided to Global, or created by
Global for or from the Programs, Source Code and Documentation under this
Agreement.
SECTION 6
CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. All documentation and information designated
by the party disclosing the information ("the Disclosing Party") as proprietary
or confidential, including without limitation drawings, source code, computer
program listings, techniques, algorithms and processes and technical and
marketing information ("Confidential Information") that is supplied by the
Disclosing Party in connection with this Agreement shall be treated
confidentially by the recipient of the confidential information ("Recipient")
and its employees and shall not be disclosed by the Recipient, except as
required in order to exercise the rights and obligations set forth in this
Agreement, without the Disclosing Party's prior written consent. Source Code
shall be presumed confidential even though not marked or designated as
confidential or proprietary.
6.2 RESTRICTIONS ON USE OF THE PROGRAMS, SOURCE CODE AND DOCUMENTATION.
Global agrees that except as authorized in writing by OnRadio: (i) Global will
preserve and protect the confidentiality of all Confidential Information by
taking suitable security and trade secret protection measures; (ii) Global will
not deliver Confidential Information to any third party, or permit the
Confidential Information to be removed from Global's premises without OnRadio's
prior written consent; (iii) Global will not use Confidential Information in any
way other than to provide the services set forth in the Contracts as provided in
this Agreement; and (iv) Global shall require that
each of its employees who work on or have access to the materials which are the
subject of this Agreement sign a suitable confidentiality and assignment of
rights agreement and be advised of the confidentiality and other applicable
provisions of this Agreement.
6.3 LIMITATIONS. Information shall not be considered to be Confidential
Information if
(1) Such information is generally available to the public through no
fault of Recipient and without breach of this agreement;
(2) Such information is already in the possession of Recipient without
restriction and prior to any disclosure under this Agreement;
(3) Such information is or has been lawfully disclosed to Recipient by
a third party without obligation of confidentiality upon Recipient; or
(4) Recipient can prove that such information was developed
independently by employees of Recipient who have not had access to
information disclosed hereunder.
6.4 SURVIVAL. The duty of confidentiality with respect to Source Code, if
any, which is disclosed pursuant to this Agreement shall survive the termination
of the license granted in this Agreement for so long as the materials remain
confidential and proprietary. The duty of confidentiality with respect to all
other confidential information shall survive the termination or expiration of
the license granted in this Agreement for a period of three (3) years.
SECTION 7
DISCLAIMER; LIMITATION OF LIABILITY
7.1 NO WARRANTIES. THE PROGRAMS, SOURCE CODE AND DOCUMENTATION ARE
PROVIDED "AS IS." ONRADIO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, REGARDING THE SERVICES AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO
THE MAXIMUM EXTENT POSSIBLE BY LAW.
7.2 ONRADIO MAKES NO WARRANTY OR REPRESENTATION THAT THE SOURCE CODE,
PROGRAMS OR DOCUMETATION PROGRAM IS COMPATIBLE WITH ANY HARDWARE. GLOBAL SHALL
BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE PROGRAMS AND SOURCE CODE ARE
COMPATIBLE WITH ANY HARDWARE.
7.3 IN NO EVENT SHALL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE
OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT,
SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN
IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.4 Notwithstanding anything in this Agreement to the contrary, Global's
sole remedy for any problems or errors arising from the Source Code, Programs
and Documentation shall be OnRadio's commercially reasonable efforts to correct
errors in the Source Code, Programs and Documentation.
SECTION 8
INDEMNIFICATION
8.1 Indemnification. Each party (the "Indemnitor") shall defend,
indemnify, and hold the other party (the "Indemnitee") harmless from and against
any claims, losses, actions, demands, lawsuits or damages, including, but not
limited to reasonable attorney's fees, costs, experts costs and other
litigation/settlement costs resulting from any act of omission of the Indemnitor
that constitutes a breach of its obligations under this Agreement. OnRadio
specifically agrees that it shall defend, indemnify, and hold the other party
(the "Indemnitee") harmless from and against any claims, losses, actions,
demands, lawsuits or damages, including, but not limited to reasonable
attorney's fees, costs, experts costs and other litigation/settlement costs
resulting from third party claims that the Source Code, Programs and
documentation infringe the third party's rights. OnRadio shall have no duty to
provide such indemnification to the extent the third party claims relates to
changes, additions or modifications made by Global to the Source Code, Programs
or documentation.
8.2 This indemnity shall not apply to the extent the portion of such
claim, liability, loss, cost, damage or expense is the result of the gross
negligence or willful misconduct of the Indemnitee, its agents or
representatives, or to the extent liability is disclaimed or limited by either
party under this Agreement. Any claim for indemnity hereunder shall be subject
to the claims procedures set forth in Section 8.4 of the Asset Purchase
Agreement.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1 NOTICES: For purposes of all notices and other communications required
or permitted to be given hereunder, the addresses of the parties hereto shall be
as indicated below. All such communications shall be in writing and shall be
deemed to have been duly given if sent by facsimile, the receipt of which is
confirmed by return facsimile, or if delivered personally with receipt
acknowledged or sent by first class registered or certified mail or equivalent,
return receipt requested, if available, postage paid, addressed to the Parties
at their addresses respectively set forth below:
If to OnRadio: XxXxxxx.xxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: General Counsel
If to Global: XxxxxxXxxxx.xxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Chief Financial Officer
9.2 THE DESIGNATED PERSON TO SEND AND RECEIVE MATERIAL: The Parties agree
that all materials exchanged between the parties for formal approval shall be
communicated between single designated persons, or a single alternate designated
person for each Party.
9.3 ENTIRE AGREEMENT: This Agreement, including the attached Schedules
which are incorporated herein by reference as though fully set out, contains the
entire understanding and agreement of the Parties with respect to the subject
matter contained herein, supersedes all prior oral or written understandings and
agreements relating thereto except as expressly otherwise provided, and may not
be altered, modified or waived in whole or in part, except in writing, signed by
duly authorized representatives of the Parties.
9.4 FORCE MAJEURE: Neither Party shall be held responsible for damages
caused by any delay or default due to any contingency beyond its control
preventing or interfering with performance hereunder, including but not limited
to acts of God or the public enemy, civil disturbances or disobedience, war,
governmental regulation, embargoes, export, shipping ore remittance restriction,
strikes, lockouts, boycotts, accidents, fires, pestilence, delays or defaults
caused by carriers, floods or governmental seizure, control or rationing, or
action or inaction of governmental agencies.
9.5 SEVERABILITY: If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to any law, the remaining
provisions shall remain in full force and effect as if said provision never
existed.
9.6 CONTRACT ASSIGNMENT: Neither Party may assign their rights and duties
under this Agreement without the written consent of the other Party which will
not be unreasonably withheld; provided, however, either Party may assign this
Agreement to any parent, subsidiary, or affiliate of such Party or to any third
party which succeeds by operation of law to, or purchases or otherwise acquires
substantially all of the assets of such Party or a subsidiary or affiliate of
such Party and which assumes such Party's obligation hereunder; provided,
further, that in no event shall the rights or obligations of either Party
hereunder be assigned or assignable by any bankruptcy proceedings, and in no
event shall this Agreement or any rights or privileges hereunder be an asset of
either Party under any bankruptcy, insolvency or reorganization proceedings.
9.7 WAIVER AND AMENDMENTS: No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless consented to by both
Parties in writing. No failure or delay by either Party in exercising any
rights, power, or remedy under this Agreement shall operate as a waiver of any
such right, power, or remedy.
9.8 AGENCY: The Parties are separate and independent legal entities.
Nothing in this Agreement shall constitute a partnership nor make either Party
the agent or representative of the other. Neither Party has the authority to
bind the other or to incur any liability on behalf of the other, nor to direct
the employees of the other.
9.9 TITLES AND HEADINGS: The titles and headings of each section are
intended for convenience only and shall not be used in construing or
interpreting the meaning of any particular clause or section.
9.10 CONTRACT INTERPRETATION: Ambiguities, inconsistencies, or conflicts in
this Agreement shall not be strictly construed against the drafter of the
language but will be resolved by applying the most reasonable interpretation
under the circumstances, giving full consideration to the Parties' intentions at
the time this Agreement is entered into.
9.11 NO THIRD PARTY RIGHTS: This Agreement is not for the benefit of any
third party, and shall not be considered to grant any right or remedy to any
third party whether or not referred to in this Agreement.
9.12 SINGULAR AND PLURAL TERMS: Where the context of this Agreement
requires, singular terms shall be considered plural, and plural terms shall be
considered singular.
9.13 GOVERNING LAW: The validity, construction, and performance of this
Agreement shall be governed by the laws of the state of California without
regard to principles of conflicts of law.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set
forth above.
XxXxxxx.xxx XxxxxxXxxxx.xxx
By:/s/ Xxxxxxx Xxxx By:/s/ L. Xxxxx Xxxxxx
------------------------ ------------------------
Its: President Its: Chief Financial Officer
----------------------- ----------------------
SCHEDULE A
PROGRAMS AND SOURCE CODE
ONRADIO ADMINISTRATION SYSTEM: All of the OnRadio owned Programs and Source Code
that OnRadio was using, as of the Initial Closing set forth in the Asset
Purchase Agreement, that are necessary for the provisions of services under the
Contracts to the Customers. The OnRadio Adminstration System Programs and Source
Code include the following:
Affiliate site Management module
Remote Ad Management module
Streaming Affiliate Management module
Chat Manager
Contest Manager
Audio Request Reporter
Database Structure Viewer
DB Admin Table editor
PHP3 Source Code Viewer
Knowledgebase Editor
Documentation Viewer
DB Process Viewer
ONRADIO CONTENT MANAGEMENT SYSTEM: This system includes all of the Programs and
Source Code necessary for the input, scheduling, and provisioning of content to
Customers under the Contracts. The OnRadio Content Management System Programs
and Source Code include the following:
Station Web Site Software: This includes javascript and html code for the radio
station web sites created by OnRadio.
Content Administration
Article Editor and Scheduler
Media Database
Artist Library
THIRD PARTY SOFTWARE. Programs and Source Code does not include the following
third party software as well as any other software under license to OnRadio from
a third party
Licensed OS software, Sun Solaris
Screaming Media Harvester Module
OnRadio eCommerce engine
Oracle database
SafePassage tunneling software from C2Net
DoubleClick source code
Aria Source code (Macromedia)
CriticalPath - HTML Mail software
RightNowTechnologies FAQ software
Lyris List Manager
eShare
