EXHIBIT 10.1
SOFTWARE LICENSE AGREEMENT
Licensor:
WebIAm, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Licensee:
WEBiX Inc.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Date: As of June 20, 2001
SOFTWARE LICENSE AGREEMENT
This Agreement for a License to computer software ("Agreement") is
entered into as of the 20th day of June, 2001 (the "Effective Date") by and
between WebIAm, Inc., 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("WebIAm")
and WEBiX Inc., 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 ("WEBiX").
WHEREAS, WEBiX represents that it will engage in, among its other
activities, facilitating the trading by its Customers (as defined below) in
secondary markets for, MicroCap Securities (as defined below);
WHEREAS, WEBiX represents that it has the resources and expertise
required, and shall use its best efforts to obtain all necessary regulatory
authorizations and approvals, to provide certain services necessary for
operating an Automated Trading System, as defined by the U.S. Securities and
Exchange Commission under Regulation ATS, to facilitate the trading of MicroCap
Securities between its Customers and their clients;
WHEREAS, WebIAm represents that it is in the business of providing
computer software designed to facilitate the trading of securities; and
WHEREAS, WEBiX desires to license certain software from WebIAm on the
terms and subject to the conditions set forth below and WebIAm desires to
license such software to WEBiX on the terms and subject to the conditions set
forth below.
NOW, THEREFORE, in consideration of the foregoing recitals of the
parties, and in consideration of the mutual promises set forth herein, WebIAm
and WEBiX (collectively the "Parties") hereby agree as follows:
Article I: Definitions.
Section 1.1. Defined Terms. Terms defined in this Article I, and
parenthetically elsewhere, shall throughout the Agreement have the meanings here
and there provided.
Section 1.2. "Agreement" means this Software License Agreement and its
Schedules, which are incorporated in and form an integral part of this
Agreement.
Section 1.3. "Business Day" means a day or part day when the New York
Stock Exchange or the NASDAQ Stock Market are required or permitted to be open
for business, including extended trading hours in the State of New York,
excluding Saturdays and Sundays.
Section 1.4. "Calendar Quarter" means the calendar quarters during the
Term, each beginning on January 1, April 1, July 1, and October 1 of each
Contract Year.
Section 1.5. "Contract Year" means any one-year period commencing on
the first day of the Calendar Quarter during which the Customized Software
Acceptance Date, as that term is defined in the Software Consulting Services
Agreement, occurs, or any anniversary thereof. The Contract Year commencing on
the first day of the Calendar Quarter during which the Customized Software
Acceptance Date occurs shall be referred to herein as the "First Contract Year."
Section 1.6. "Customers" means only those WEBiX institutional investor,
issuer, registered broker dealer, and retail customers who have duly executed an
end-user license agreement or subscriber agreement (whether by signing or by
electronic acceptance means) as set forth in Schedule 3 or 4, respectively, of
this Agreement and to whom WEBiX provides services through which they may
conduct trading, as generally understood, of MicroCap Securities using Licensed
Software and Customized Software through the WEBiX Site, within the scope of the
Software License.
Section 1.7. "Customizations" or "Customized Functions" means
modifications made to WIAtrader as set forth in any Statement of Work (as
defined in the Software Consulting Services Agreement), in machine readable,
executable form only, and which are to be owned in all respects by WebIAm or its
authorized agents. Customizations do not include Enhancements. Unless otherwise
expressly identified in an applicable Statement of Work, any modification to
WIAtrader to be developed under the Software Consulting Services Agreement
pursuant to a Statement of Work shall be deemed a Customization.
Section 1.8. "Documentation" means any and all written documentation
provided to WEBiX with respect to Enhancements and Software Updates and
identified in writing by WebIAm as Documentation.
Section 1.9. "Enhancements" means any and all major modifications,
improvements, upgrades, additions to, and later releases (e.g. version x.0
releases) of WIAtrader (in machine-readable, executable form only) and related
Documentation, which are made generally available to WebIAm's other licensees
for free or in consideration for additional license fees. Enhancements do not
include Customizations that may be developed by WebIAm for WEBiX under the
Software Consulting Services Agreement.
Section 1.10. "License Fee" means the fees payable by WEBiX to WebIAm
for the right to use the Licensed Software pursuant to this Agreement, as set
out in Schedule 2.
Section 1.11. "Licensed Software" means WIAtrader, together with any
Software Updates and any Enhancements that WebIAm may provide to WEBiX
hereunder, excluding Third Party Software.
Section 1.12. "Licensed Software Acceptance Date" means the date on
which the Licensed Software is accepted pursuant to Section 2.1 or Section 2.2
hereof, as applicable.
Section 1.13. "MicroCap Securities" means any equity security that is
not otherwise listed on a US or non-US national or local security exchange or
the NASDAQ stock market.
Section 1.14. "Net Transaction Revenue" means, for any securities
transaction using the licensed software, the gross revenue received by WebiX for
such transaction (trade) less the cash amount of clearing costs actually paid by
WebiX in respect of such transaction, if any. If clearing costs are charged to
Customers as a fee in addition to that payable to WebiX, then the Net
Transaction Revenue shall be WEBiX's gross revenue for such transaction.
Section 1.15. "Required Platform" means (a) the central processing unit
or attached processor or multi-processor complex, using (i) one or more
operating systems as specified by WebIAm and (ii) such Third Party Software as
specified by WebIAm to support the Licensed Software and (b) the Third Party
Software to be used by Customers, all as more particularly described in Schedule
1.
Section 1.16. "Software Consulting Services Agreement" means that
certain Software Consulting Services Agreement entered into by the Parties dated
as of June 20, 2001.
Section 1.17. "Software License" means the license WebIAm grants to
WEBiX in connection with the Licensed Software and Documentation under this
Agreement, pursuant to Article 5 hereof.
Section 1.18. "Software Support and Maintenance" means the software
support and maintenance services with respect to the Licensed Software as set
forth in the Software Consulting Services Agreement.
Section 1.19. "Software Updates" means error corrections, bug fixes,
and other minor alterations made to the Licensed Software by WebIAm from time to
time during the Term as part of Software Support and Maintenance, in
machine-readable, executable form only, which are provided by WebIAm to its
other licensees on a general release basis and which do not constitute
Enhancements.
Section 1.20. "Source Code" means a human-readable form of the Licensed
Software, which can be understood, modified, and compiled by an ordinarily
trained computer-programmer with no special or particular knowledge of the
Licensed Software.
Section 1.21. "Term" means the period beginning on the Effective Date
and ending on the Termination Date.
Section 1.22. "Third Party Software" means any software, including
without limitation software composing the Required Platform, excluding
WIAtrader, Software Updates, Enhancements and Customized Software (as such term
is defined in the Software Consulting Services Agreement).
Section 1.23. "Termination Date" means the date on which the Software
License shall expire or terminate, in accordance with Article IX.
Section 1.24. "WEBiX Market" means the market for trading MicroCap
Securities.
Section 1.25. "WEBiX Site" means WEBiX's Web site located at a domain
name and unique public IP address by which WEBiX's Customers are enabled to
engage in trading of MicroCap Securities.
Section 1.26. "WIAtrader" means WebIAm's WIAtrader Secondary Market
Trading Software, version 1.0, in machine-readable, executable form only.
Article II: Delivery
Section 2.1. Delivery of WIAtrader. Upon execution of this Agreement,
WebIAm shall deliver one copy of WIAtrader to WEBiX. WIAtrader shall be deemed
accepted by WEBiX following a reasonable period of testing after such delivery.
Section 2.2. Enhancements. If at any time during the Term WebIAm
develops any Enhancements, WebIAm shall, when in its sole judgment such
Enhancements are ready for release and are made available to other licensees on
a standard release basis, offer the same to WEBiX with all necessary instruction
in the use and application of such Enhancements, pursuant to terms to be set
forth by WebIAm, which terms may or may not include payment of additional
license fees similar in amount to those fees charged by WebIam to other
licensees. In the event that WebIAm offers and WEBiX accepts Enhancements under
such terms, WebIAm shall provide such Enhancements to WEBiX on disk or in other
machine-readable form, as requested by WEBiX. WEBiX shall have the right to
refuse the offer of Enhancements, provided, however, that such refusal may
affect WEBiX's ability to receive Software Support and Maintenance, but only to
the extent that Third Party Software does not support or operate properly with
the Licensed Software without the Enhancement. WEBiX recognizes that such
Enhancements may require that WEBiX install or have installed specific current
versions of the Third Party Software as identified in Schedule 1 or otherwise
identified to WEBiX as being required. An Enhancement shall be deemed accepted
by WEBiX following a reasonable period of testing after WebIAm's delivery of
such Enhancement to WEBiX.
Section 2.3. Required Platform. WEBiX shall be solely and exclusively
responsible for obtaining (and procuring licenses from third party vendors as
may be necessary for operation of its system) the Required Platform as set forth
in Schedule 1 of this Agreement, including any third party licenses that may be
necessary for WebIAm to compile and integrate Third Party Software for WEBiX or
its Customers as provided in Schedule 1. WebIAm shall have absolutely no
responsibility whatsoever for acquiring or configuring the Required Platform
other than as agreed upon in the Software Consulting Services Agreement.
Section 2.4. Encryption. WEBiX 's use of the Licensed Software,
Required Platform and/or Third Party Software may involve WEBiX 's export,
import, or re-export of cryptographic software that is subject to control under
the laws of the United States and/or other countries. It shall be solely and
exclusively WEBiX 's responsibility to, and WEBiX hereby represents and warrants
that it shall, conform with and obtain any necessary permissions, licenses, and
clearances required by, any and all laws of any country pertaining the export,
re-export, or import of the Licensed Software and any and all Third Party
Software composed in the Required Platform or otherwise. WEBiX acknowledges and
agrees that WEBiX will not distribute or re-export any such cryptographic
software to any third party without (i) the prior written consent of WebIAm in
each instance, (ii) WEBiX 's compliance with all export laws of the United
States, including acquiring any licenses required thereunder, and (iii) WEBiX's
compliance with the laws of the country of destination or use, including without
limitation import laws.
Section 2.5. WebIAm Access. Throughout the term of the Software
Consulting Services Agreement, WEBiX shall provide WebIAm with a mock Customer
account allowing WebIAm to monitor and test the Licensed Software and any
Customizations to the Licensed Software on the WEBiX Site.
Article III: Title
Section 3.1. Proprietary Rights. Subject only to the Software License
granted in Article 5 of this Agreement, and to the license to Source Code
granted in the Source Code escrow agreement as described in Section 16.7 of this
Agreement, all right, title and interest in and to the Licensed Software, the
source code underlying the Licensed Software, Documentation, any product of
Software Support and Maintenance and WebIAm's Confidential Information (as
defined in Section 6.2 hereto), including, without limitation, all copies
thereof and all rights to patents, copyrights, trademarks, trade secrets and
other intellectual property rights inherent therein and appurtenant thereto,
shall be and shall remain exclusively with WebIAm or its licensors or suppliers.
WEBiX shall not, by virtue of this Agreement or otherwise, acquire any
proprietary rights whatsoever, except the license rights expressly granted to it
herein, in the Licensed Software, the source code underlying the Licensed
Software, Documentation, any product of Software Support and Maintenance or
WebIAm's Confidential Information, which shall be the sole and exclusive
property of WebIAm. No identifying marks, copyright or proprietary right notices
may be deleted from any copy of the License Software, its source code or
WebIAm's Confidential Information.
Article IV: Payment
Section 4.1. Fee. WEBiX shall pay to WebIAm the License Fee in
accordance with the provisions of Schedule 2. In the event that WEBiX has not
obtained the regulatory authorizations and approvals necessary to facilitate
trading in the WEBiX Market through the WEBiX Site using the Licensed Software
(the "Required Authorizations") within ten (10) months from the Effective Date,
WEBiX shall make a non-refundable payment to WebIAm of $100,000; and in the
event that WEBiX has not obtained the Required Authorizations within sixteen
(16) months from the Effective Date, WEBiX shall make a second non-refundable
payment to WebIAm of $100,000. Neither payment, nor any portion thereof, shall
be refundable in any event, including without limitation in the event that WEBiX
subsequently obtains the Required Authorizations. In the event that WEBiX has
not obtained the Required Authorizations within twenty-four (24) months from the
Effective Date, notwithstanding anything to the contrary in this Agreement, the
Software License shall automatically and immediately revert to a non-exclusive
license for the balance of the Term or be mutually canceled upon the repayment
to WEBiX of the License Fee
Section 4.2. Taxes. WEBiX shall be solely responsible for all taxes
which may be assessed, levied, or imposed with respect to use of Licensed
Software by WEBiX pursuant to this Agreement, excluding any taxes levied by any
government or other agency with regard to WebIAm's income.
Section 4.3. Interest. WEBiX shall pay interest on any amount due under
this Agreement which remains unpaid after the day on which it becomes payable,
from such date to the date of payment at a rate per annum equal to the lower of
(a) the highest rate permitted by applicable law or (b) 1.5%, accruing on a
monthly basis. Payments outstanding for sixty (60) calendar days shall be deemed
to be an automatic material breach of this Agreement justifying immediate
termination of this Agreement and the Software License by WebIAm. WEBiX also
agrees to pay all reasonable fees and expenses incurred by WebIAm in enforcing
the provisions of this Agreement. No failure by WebIAm to request any such
payment or to demand any such performance shall be deemed a waiver by WebIAm of
WEBiX's obligations hereunder or a waiver of WebIAm's right to terminate this
Agreement.
Section 4.4. Currency and Exchange Rate. Payments shall be paid in U.S.
currency. Any rate of exchange which may be applicable to payments due or other
monetary calculations for purposes of this Agreement shall be the rate set forth
in the Wall Street Journal on the day that the payment is due or the date upon
which the calculation is scheduled to be made.
Article V: Grant and Scope of License
Section 5.1. License. Subject to the terms and conditions of this
Agreement, including, without limitation, Section 5.2 hereof and to WEBiX's
payment of the License Fee, WebIAm hereby grants to WEBiX a limited,
non-transferable (other than as expressly provided herein), perpetual and
exclusive as against the rest of the world license, solely during the Term, to
use the Licensed Software and Documentation at the WEBiX Site in connection with
the operation of an internet based electronic exchange for secondary trading of
MicroCap Securities (the "Exclusive Permitted Use") and a limited
non-transferable, non-exclusive license, solely during the Term, to use the
Licensed Software and Documentation solely for the purpose of making the
Licensed Software available to Customers that trade MicroCap Securities through
such site (the "Non-Exclusive Permitted Use").
Section 5.2. Restrictions on License. As an express condition of the
grant of Software License in Section 5.1 hereto, WEBiX shall strictly comply
with all use restrictions and limitations on the Software License set forth or
described in this Section 5.2. WEBiX may not do the following, or cause the
following to be done: (1) copy, publish or display Licensed Software, other than
(a) as expressly permitted by Section 5.1 above and (b) as permitted in Section
5.3 hereto, (2) sublicense, assign, subcontract, transfer, distribute, rent,
lease or loan Licensed Software (except as permitted by Section 14.1 of this
Agreement), (3) translate, modify or create derivative works based on the
Licensed Software or any part thereof, other than pursuant to WebIAm's
Consulting Services (as such term is defined under the Software Consulting
Services Agreement), or (4) reverse engineer, decompile, translate, adapt, or
disassemble the Licensed Software, or attempt to create the source code from the
object code form of the Licensed Software. Any use by WEBiX of the Licensed
Software in violation of any term or condition in this Section 5.2 shall
constitute a material breach of this Agreement. Subject to Section 3.1 of the
Software Consulting Services Agreement, nothing in this Section 5.2 shall
prevent WEBiX from independently developing its own software having
functionality in common with the Licensed Software, provided that WEBiX only use
such developed software subsequent to the Termination Date, as long as such
software developed by WEBiX does not infringe WebIAm's copyrights or other
intellectual property rights in the Licensed Software or otherwise.
Section 5.3. Allowed Copies. Notwithstanding Section 5.2 hereto, WEBiX
may copy and use Licensed Software: (1) as is reasonably necessary for its
maintenance, back-up, archival purposes, testing, training, disaster recovery or
contingency procedures, and (2) for other purposes upon WebIAm's advanced
written authorization which shall not be unreasonably withheld. WebIAm shall not
be responsible for supporting or maintaining allowed copies of Licensed
Software. WEBiX shall keep and maintain at all times during the Term an accurate
and complete list of any copies of the Licensed Software that it creates,
including a description of the purpose of its creation and use and its location,
and shall provide such list to WebIAm on each anniversary during the Term of the
first day of the First Contract Year, and shall make such list otherwise
available to WebIAm upon WebIAm's reasonable written request.
Section 5.4. Exclusivity. WEBiX 's Software License shall be exclusive
to WEBiX as against the rest of the world, solely with respect to Exclusive
Permitted Use.
Section 5.5. Reservation of Rights. Any and all rights to the Licensed
Software not herein specifically granted to WEBiX in this Agreement are reserved
by WebIAm. Without limitation of the foregoing, WebIAm and its licensors shall,
in all instances, retain the sole and exclusive right to exploit the Licensed
Software outside of the Exclusive Permitted Use.
Section 5.6. Press Releases. WEBiX hereby grants WebIAm a license to
use its name in press releases regarding this Agreement and/or the Software
Consulting Services Agreement. At least five (5) Business Days in advance of
such press release, WebIAm shall provide the intended press release to WEBiX for
its review with respect to the factual accuracy of such press release, and WEBiX
may not unreasonably withhold its approval of such release. It is acknowledged
that various state and federal authorities and/or self-regulatory organizations
may require review and approval of certain press releases prior to public
release. If WEBiX intends to distribute any press release or other promotional
material to any third party, the subject matter of which is to include Licensed
Software and/or knowledge of this Agreement, and the material makes specific
mention of WebIAm, its licensors or affiliates, or uses such entity's name,
marks, or logos, then the press release or promotional material must first be
approved in writing by WebIAm.
Section 5.7. Proprietary Notices. WEBiX shall maintain WebIAm's
identifying marks, patent, trademark, service xxxx, copyright and/or proprietary
notices on Licensed Software, the Documentation and WebIAm's Confidential
Information, and shall reproduce the notices on any copies and other documents
generated from such Licensed Software, Documentation or WebIAm's Confidential
Information. WEBiX shall take any and all steps as may be required to protect
WebIAm's trade secrets, patents, trademarks, service marks, and copyrights, and
other ownership rights in Licensed Software, the Documentation and WebIAm's
Confidential Information.
Section 5.8. Enforcement. WebIAm shall retain the sole and exclusive
right to commence any and all actions in connection with any third-party
infringements or violations of any WebIAm rights in and to the Licensed
Software, and WEBiX shall reasonably cooperate with WebIAm in connection with
the prosecution of any such actions. In the event that WEBiX obtains knowledge
of a third party's infringement of WebIAm's proprietary rights in the Licensed
Software within the WEBiX Market (a "Third Party Infringement"), WEBiX shall
promptly notify WebIAm in writing of any and all details within its knowledge of
such Third Party Infringement. Within sixty (60) days of the date that WebIAm
receives written notice from WEBiX of a known or suspected Third Party
Infringement, WebIAm shall inform WEBiX in writing as to whether WebIAm plans to
initiate appropriate action against such Third Party Infringement. In the event
that WebIAm informs WEBiX in writing pursuant to the immediately preceding
sentence that WebIAm does not intend to take appropriate action in connection
with such Third-Party Infringement, then WEBiX shall have the right to initiate
appropriate action against such Third Party Infringement upon prior written
notice to WebIAm. o
Article VI: Confidentiality
Section 6.1. Confidential Information of WEBiX. WebIAm and its
employees shall not, in accordance with Section 6.3 herein (without first
obtaining the prior written consent in each instance of WEBiX), for the duration
of this Agreement or thereafter, disclose, transfer, publish, or otherwise make
available to others (other than WebIAm's affiliates, subject to the
confidentiality obligations of this Article 6), make commercial or other use of,
or give or sell to any person, firm, or corporation any confidential information
received directly from WEBiX or acquired from WEBiX in the course of this
Agreement, including, by way of example only, details of transactions performed
by the Licensed Software for WEBiX, inventions, methods, designs, formulas,
systems, improvements, prices, discounts, business affairs, products, product
specifications, manufacturing processes, data, know-how, and the terms of this
Agreement (other than as reasonably necessary to perform WebIAm's obligations
under this Agreement or to exercise its rights under Section 5.6 herein), and
technical information of any type whatsoever (collectively, "WEBiX 's
Confidential Information") unless (i) required to do so pursuant to law (and
then only after taking commercially reasonable steps to maintain the
confidentiality of WEBiX's Confidential Information); (ii) it was rightfully in
the possession of WebIAm from a source other than WEBiX prior to the time of
disclosure of said information to WebIAm hereunder ("Time of Receipt"); (iii) it
was in the public domain prior to the Time of Receipt; (iv) it became part of
the public domain after the Time of Receipt by any means other than an
unauthorized act or omission on the part of WebIAm; (v) it is supplied to WebIAm
after the Time of Receipt without restriction by a third party who is under no
obligation to WEBiX to maintain such information in confidence; or (vi) it was
independently developed by WebIAm. Notwithstanding the foregoing, WebIAm may
disclose this Agreement, its terms and other pertinent information to investors
and potential investors, its accountants, lawyers, agents, on a need to know
basis pursuant to reasonable confidentiality restrictions.
Section 6.2. Confidential Information of WebIAm. WEBiX and its
employees, subcontractors, consultants, representatives and agents shall not, in
accordance with Section 6.3 herein, (without first obtaining the prior written
consent in each instance of WebIAm) during the duration of this Agreement or
thereafter, disclose, make commercial or other use of, give or sell to any
person, firm, or corporation (other than as reasonably necessary to perform its
obligations under this Agreement) or use to the detriment of WebIAm or its
licensors, sister companies or affiliates, any confidential information received
directly or indirectly from WebIAm or acquired from WebIAm in the course of this
Agreement, including, by way of example only, the Licensed Software, its source
code, the Documentation, and any portion thereof or modifications, changes,
enhancements, conversions, upgrades or additions thereto, ideas, inventions,
methods, designs, formulas, systems, improvements, prices, discounts, business
affairs, products, product specifications, manufacturing processes, data and
know-how, the existence of this Agreement, technical information of any type
whatsoever, and any material or documents labeled as confidential (collectively,
"WebIAm's Confidential Information"; WEBiX Confidential Information and WebIAm
Confidential Information referred to together as "Confidential Information")
unless (i) required to do so pursuant to law (and then only on the entry of a
protective order acceptable to WebIAm); (ii) it was rightfully in the possession
of WEBiX from a source other than WebIAm prior to the time of disclosure of said
information to WEBiX hereunder ("Time of Receipt"); (iii) it was in the public
domain prior to the Time of Receipt; (iv) it became part of the public domain
after the Time of Receipt by any means other than an unauthorized act or
omission on the part of WEBiX; (v) it is supplied to WEBiX after the Time of
Receipt without restriction by a third party who is under no obligation to
WebIAm to maintain such information in confidence; or (vi) it was independently
developed by WEBiX prior to the Time of Receipt. Notwithstanding the foregoing,
WEBiX may disclose this Agreement, its terms and other pertinent information to
investors and potential investors, its accountants, lawyers, agents, on a need
to know basis pursuant to reasonable confidentiality restrictions.
Section 6.3. Maintenance of Confidentiality. Both Parties shall
maintain the confidentiality of the other party's Confidential Information in a
manner using at least as great a degree of care as that which it uses to
maintain the confidentiality of its own Confidential Information. Both Parties
shall only permit access to the other party's Confidential Information by its
employees, consultants, and subcontractors who have a need to know in connection
with the rights or obligations under this Agreement, shall advise such
employees, consultants and subcontractors of their obligations to keep
Confidential Information confidential, and shall use commercially reasonable
efforts to prevent such employees, consultants and subcontractors from
disclosing such Confidential Information in violation of this Article 6. Both
Parties shall use their reasonable efforts to assist each other in identifying
and preventing any unauthorized use or disclosure of any Confidential
Information. Without limitation of the foregoing, the Parties shall use
reasonable efforts to advise each other immediately in the event that either
learns or has reason to believe that any person who has had access to
Confidential Information has violated or intends to violate the terms of this
Agreement, and will reasonably cooperate in seeking injunctive relief against
any such person.
Article VII: WebIAm's Warranties
Section 7.1. Warranty of Title. WebIAm warrants that it has, and shall
have throughout the duration of this Agreement, the right to license Licensed
Software and the Documentation, and it has and shall have throughout the
duration of this Agreement all the rights necessary to perform its obligations
under this Agreement.
Section 7.2. No Actions, Suits or Proceedings. WebIAm warrants there
are no actions, suits, or proceedings, pending or threatened, which will have a
material adverse effect on WebIAm's ability to fulfill its obligations under
this Agreement. WebIAm further warrants it will, within a reasonable amount of
time, notify WEBiX if WebIAm becomes aware of any pending action, suit or
proceeding which will have a material adverse effect of WebIAm's ability to
fulfill the obligations under this Agreement.
Section 7.3. Warranty of WebIAm Capability. WebIAm warrants that it is
financially capable of fulfilling all material requirements of this Agreement,
that there are no legal proceedings against it that could threaten performance
of this Agreement, and that WebIAm is a validly organized entity that has the
authority to enter into this Agreement. WebIAm is not prohibited by any loan,
contract, financing arrangement, trade covenant or similar restriction from
entering into this Agreement.
Section 7.4. Warranty of Non-infringement. WebIAm represents and
warrants that the Licensed Software, when used by WEBiX as authorized under this
Agreement, will not infringe any United States patent which has issued as of the
Effective Date, or any United States copyright, trademark or trade secret of any
third party.
Section 7.5. Source Code Warranty. WebIAm represents and warrants that
it owns or has the right to license and deposit into escrow the Source Code, as
provided in Section 16.7 herein. WebIAm further represents and warrants that (1)
the Source Code shall be the source code for the Licensed Software including
Enhancements as delivered to WEBiX, if WEBiX has accepted, and paid any relevant
license fees for, such Enhancements, and that WebIAm will update the Source Code
within a reasonable amount of time after WebIAm has provided WEBiX with updates
to the Licensed Software pursuant to this Agreement; (2) that the Source Code is
and shall be reasonably understandable and usable by an ordinarily trained
computer-programmer skilled in the art with no special or particular knowledge
of the Licensed Software; and (3) that the Source Code includes all elements
reasonably required for its understanding and use as provided in the definition
of Source Code in this Agreement.
Section 7.6. Unauthorized Code. WebIAm represents and warrants that, at
the time WebIAm delivers Licensed Software to WEBiX, there will be no
Unauthorized Code, as defined below, in the Licensed Software delivered by
WebIAm at that time, or any portion thereof. "Unauthorized Code" means any
virus, Trojan horse, worm or other software routines designed to permit
unauthorized access by WebIAm or third parties; to disable, erase or otherwise
harm Licensed Software, hardware or data; or to perform similar or other such
actions.
Section 7.7. Warranty of Functionality. WebIAm represents and warrants
that, for a period of one hundred and twenty (120) days following the Licensed
Software Acceptance Date, including any subsequent acceptance of any
Enhancements and Software Updates (the "Warranty Period"), the Licensed
Software, as installed by WebIAm on the Required Platform, shall conform and
operate in all material respects to the Documentation when operated on the
Required Platform. The foregoing warranty in this Section 7.7 shall have no
effect during any period of time that any of the following conditions exists:
(i) the Licensed Software allegedly containing a non-conformity with its
Documentation has not been kept up to date by WEBiX 's procurement and
installation of Software Updates or has been modified other than by WebIAm
pursuant to the Software Consulting Services Agreement; (ii) the Licensed
Software is operated on equipment or software other than the Required Platform;
(iii) the alleged non-conformity arises from or is produced by a defect or
shortcoming in the Required Platform; (iv) the alleged non-conformity is due to
a defect or shortcoming in any software not developed by WebIAm; or (v) the
Licensed Software is used in a manner not authorized by this Agreement.
Notwithstanding the warranty set forth in this Section 7.7, WebIAm does not
warrant that Software Updates and Enhancements will function properly with
Licensed Software that has been modified or customized under the Software
Consulting Services Agreement, provided that, for additional, mutually agreed
upon consideration fees as set forth in an executed Statement of Work (as
defined in the Software Consulting Services Agreement), and to the extent
commercially feasible, WebIAm shall modify customized Licensed Software to be
compatible with Software Updates and Enhancements.
Section 7.8. Warranty Procedure. Upon WebIAm's receipt during the
Warranty Period, of a written or electronic notice from WEBiX that the Licensed
Software as installed by WebIAm on the Required Platform does not substantially
conform to the warranties set forth in Sections 7.6 or 7.7 of this Agreement (a
"Timely Defect Notice"), WEBiX shall duplicate the problem on the Licensed
Software in the presence of an WebIAm representative (whether remotely or in
person) who WebIAm shall make available for such purposes. If the problem cannot
be duplicated, WebIAm's warranty shall not apply and WebIAm shall have no
obligation to remedy the cited defect. If the alleged problem is duplicated on
the Licensed Software and WebIAm, subject to Sections 7.6, 7.7 or this Section
7.8, determines that the problem constitutes a failure of the Licensed Software
to conform to the requirements of such warranties, WebIAm shall use its best
efforts, to the extent commercially practicable, at no additional charge to
WEBiX, to repair and correct such problem. The limited warranties in Sections
7.6 and 7.7 hereof do not apply to corrections or remedies for difficulties or
defects arising from system changes, the hardware or software environment
(including, without limitation, the Required Platform), Third Party Software,
modifications made to the Licensed Software, alleged problems with the Licensed
Software discovered or reported to WebIAm after the expiration of the Warranty
Period or other causes external to the Licensed Software, for which WEBiX shall
pay WebIAm at WebIAm's then standard time and materials charges. If WEBiX
requests WebIAm's assistance with any non-warranty problem, WebIAm will provide
services to the extent provided in the Software Consulting Services Agreement.
Section 7.9. Disclaimers of Warranty. THE WARRANTY SET FORTH IN THIS
ARTICLE 7 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY WebIAm, ITS
LICENSORS, OR AFFILIATES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 7, NO
WARRANTY, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, AS TO CONDITION, QUALITY, PERFORMANCE, INFRINGEMENT, MERCHANTABILITY,
DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS GIVEN OR ASSUMED BY WebIAm,
ITS LICENSORS, OR AFFILIATES, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS
AND TERMS ARE HEREBY EXPRESSLY DISCLAIMED. WebIAm AND ITS LICENSORS, OR
AFFILIATES DO NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET WEBiX 'S
REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE WILL BE
CORRECTED. WebIAm'S LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF
WebIAm, ITS LICENSORS, OR AFFILIATES, IN CONNECTION WITH THE DELIVERY, USE OR
PERFORMANCE OF THE LICENSED SOFTWARE. THE PARTIES AGREE THAT THE LICENSED
SOFTWARE'S FAILURE TO PERFORM IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS SHALL
NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED
HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, AND ANY EXPRESS OBLIGATIONS OF
WebIAm IN THIS AGREEMENT, THE ENTIRE RISK OF THE LICENSED SOFTWARE'S QUALITY AND
PERFORMANCE IS WITH WEBiX.
Article VIII: WEBiX 's Warranties
Section 8.1. WEBiX Warranties. WEBiX represents and warrants: (1) that
it has, and shall have throughout the Term, all the rights necessary to enter
into and perform its obligations under this Agreement and to use the Required
Platform as set forth in this Agreement; (2) that it shall use its best efforts
to procure any and all regulatory authorizations necessary to trade in the WEBiX
Market and operate an Automated Trading System or other regulatory authorized
undertakings, as defined by the U.S. Securities and Exchange Commission under
Regulation ATS, to facilitate trading in the WEBiX Market between Customers and
their clients, and that it shall have in place such authorizations at any time
that it is conducting the WEBiX market; (3) that it has the resources and
expertise required to conduct such activities; and (4) that it has complied, and
shall comply throughout the Term, with any and all laws, statutes, and
regulations applicable to such trading and/or in connection with its use of the
Licensed Software.
Section 8.2. No Actions, Suits or Proceedings. WEBiX represents and
warrants that there are no actions, suits, or proceedings, pending or
threatened, which will have a material adverse effect on WEBiX 's ability to
fulfill its obligations under this Agreement. WEBiX further warrants it will,
within a reasonable amount of time, notify WebIAm if WEBiX becomes aware of any
pending action, suit or proceeding which will have a material adverse effect of
WEBiX 's ability to fulfill the obligations under this Agreement.
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Section 8.3. Warranty of WEBiX Capability. WEBiX represents and
warrants that it is financially capable of fulfilling all material requirements
of this Agreement, that there are no legal proceedings against it that could
threaten performance of this Agreement, and that WEBiX is a validly organized
entity that has the authority to enter into this Agreement. WEBiX is not
prohibited by any loan, contract, financing arrangement, trade covenant or
similar restriction from entering into this Agreement.
Section 8.4. Disclaimers of Warranty. THE WARRANTY SET FORTH IN THIS
ARTICLE 8 AND IN SECTION 2.4 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY
MADE BY WEBiX. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 8 AND IN SECTION
2.4, ANY WARRANTY, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY
OR OTHERWISE, AS TO INFRINGEMENT, ACCEPTANCE OR USE OF THE LICENSED SOFTWARE ARE
HEREBY EXPRESSLY DISCLAIMED. WEBiX'S LIMITED WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES OF WEBiX IN CONNECTION WITH ITS ACCEPTANCE OR USE OF THE LICENSED
SOFTWARE.
Article IX: Duration, Termination and Cancellation
Section 9.1. Duration or Term. The duration of this Agreement shall be
for the Term.
Section 9.2. Termination for Material Breach. If either party is in
material breach of this Agreement, the non-breaching party shall provide a
written notice to the breaching party specifying the nature of the breach. In
the event that such breach is curable, the breaching party shall have sixty (60)
days from receipt of such notice to correct the breach. If the breach is not
cured within such period, the non-breaching party may terminate this Agreement,
including the Software License, immediately by providing the breaching party
with written notice of such immediate termination. In the event that a material
breach is not curable (including without limitation incurable material breaches
of the confidentiality provisions of Article 6 hereto or WEBiX 's material
breach of the scope of the Software License set forth in Section 5.2), the
non-breaching party may immediately terminate the Software License and this
Agreement by written notice to the allegedly breaching party.
Section 9.3. Termination for Insolvency. Either party may terminate
this Agreement immediately upon the occurrence of any of the following events
with respect to the other party: (a) a receiver is appointed for such party or
its material assets; (b) such party becomes insolvent, generally unable to pay
its debts as they become due, or makes an assignment for the benefit of its
creditors or seeks relief under any bankruptcy, insolvency or debtor's relief
law; (c) if proceedings are commenced against the other party, under any
bankruptcy, insolvency or debtor's relief law, and such proceedings have not
been vacated or set aside within sixty (60) days from the date of commencement
thereof; or (d) if such party is liquidated, dissolved or ceases operations.
Section 9.4. Effect of Termination. In the event that the Agreement is
validly terminated pursuant to any section of this Article, the Software License
shall continue in effect until WEBiX has secured an alternative source of
software but in no event longer than six (6) months (the "Post-Termination
Period"). Upon expiration of the Post-Termination Period WEBiX shall have no
right to use or exploit in any manner, the Licensed Software or Documentation.
If such termination is undisputed, WEBiX shall deliver to WebIAm within five (5)
calendar days after the Post-Termination Period all copies of the Licensed
Software and Documentation and all embodiments thereof in its possession or
under its control, and/or, at WebIAm's option, provide WebIAm access to any and
all Required Platforms on which any Licensed Software is installed for purposes
of uninstalling the Licensed Software. Upon any termination, each party shall
immediately return to the other, or if so requested destroy, all Confidential
Information of other party. If WEBiX disputes a termination by WebIAm, then
WebIAm shall not repossess the Licensed Software and Documentation on an ex
parte basis, but WEBiX shall first be given an opportunity to be heard before a
court.
Article X: Liabilities and Remedies
Section 10.1. Available Remedy. No remedy set forth in this Agreement
for breach of this Agreement is intended to exclude or limit any other remedy
now or hereafter existing at law or in equity, unless such remedy is expressly
limited by this Agreement. For example, cancellation or termination of this
Agreement in accordance with its terms does not exclude or limit a claim for
damages caused by a breach of this Agreement.
Section 10.2. Uniform Commercial Code Remedies. In addition to any
other remedy it may have, WEBiX shall have the right to demand "adequate
assurance of performance" and to obtain "cover" as those terms are defined under
the Uniform Commercial Code as adopted in the State of New York.
Section 10.3. Limitation of Liability. WebIAm SHALL HAVE NO LIABILITY
WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE
AGGREGATE LIABILITY OF WebIAm TO WEBiX FOR ANY REASON AND UPON ANY CAUSE OF
ACTION OR CLAIM SHALL BE LIMITED TO THE GREATER OF: (1) THE FAIR MARKET VALUE OF
THE COMMON STOCK OF WEBIX ISSUED TO WebIAm HEREUNDER, OR (2) ONE MILLION DOLLARS
($1,000,000). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE
AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE
TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER AND OTHER TORTS.
BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS
HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE
PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE
LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF
RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET
FORTH IN THIS AGREEMENT. Notwithstanding the above, and notwithstanding Section
11.3 of the Software Consulting Services Agreement, if WebIAm breaches this
Agreement, willfully and in bad faith, by licensing the Licensed Software or
Customized Software to any third party(ies) within the WEBiX Market while
WEBiX's Software License is exclusive, then (1) the limitation on direct damages
set forth in the second sentence of this Section 10.3 shall not apply, and
instead (2) WebIAm shall be liable to WEBiX for damages which the parties agree
will be uncertain and difficult to ascertain and which therefore they agree to
liquidate in the following amount, which is intended to compensate WEBiX for its
actual damages: WebIAm shall pay WEBiX all license and royalty fees, or all
consideration in lieu of such fees, received from all such licensees up through
the end of the fifth Contract Year of the Software Consulting Services
Agreement, regardless of its earlier termination, plus the greater of (1) the
fair market value of the Common Stock of WEBiX issued to WebIAm hereunder, or
(2) one million dollars ($1,000,000).
Article XI: Indemnities
Section 11.1. WebIAm's Indemnification. WebIAm shall defend, at its
sole expense, any third party action brought against WEBiX alleging that the
Licensed Software or Documentation provided pursuant to this Agreement, or any
part thereof, or the Customized Software or documentation thereof provided
pursuant to the Software Consulting Services Agreement or any Statement of Work
entered into there under except those claims for which WEBiX has promised to
indemnify WebIAm pursuant to the Software Consulting Services Agreement,
infringes any United States patent issued as of the Effective Date, United
States trademark and/or copyright or WebIAm's breach of its representations and
obligations hereunder, and WebIAm will pay any and all loss, cost, liability and
expense incurred by WEBiX on account of any such third party claim or action,
including any amount awarded against WEBiX in connection with such claim or
action and including reasonable attorneys' fees sustained by WEBiX, and WebIAm
shall otherwise hold harmless WEBiX from and against any such third party claim
or action, all provided that WEBiX promptly notify WebIAm in writing of any such
claim and that WebIAm shall have the exclusive right to control such defense.
The indemnity set forth in this Section 11.1 shall not apply to any action based
on a claim relating to the use of the Licensed Software or the Customized
Software beyond the scope of the Software License or in conjunction with
software or equipment not provided by WebIAm other than the Required Platform,
or relating to alterations or customizations to the Licensed Software not
authorized by WebIAm. If a temporary restraining order or preliminary or
permanent injunction is obtained against WEBiX's use of any of the allegedly
infringing Licensed Software, or Customized Software within the scope of this
Article 11, WebIAm shall, at its sole expense, and as WEBiX 's sole and
exclusive remedy for such infringement, perform whichever of the following
remedies WebIAm chooses in its sole discretion: (a) procure for WEBiX the right
to continue using the allegedly infringing Licensed Software or Customized
Software; (b) replace or modify the allegedly infringing Licensed Software or
Customized Software so that it becomes non-infringing, provided such replacement
or modification complies with all warranties made by WebIAm under this
Agreement; (c) refund all fees paid by WEBiX for the infringing Licensed
Software or Customized Software pursuant to this Agreement and cancel any
remaining payment obligations; or (d) reach a financial settlement with WEBiX
which is acceptable to both parties.
Section 11.2. WEBiX's Indemnification. WEBiX shall defend, at its sole
expense, any third party action brought against WebIAm arising out of any
unauthorized use of the Licensed Software by WEBiX (excluding claims for which
WebIAm is expressly required to indemnify WEBiX under Section 11.1 herein), or
WEBiX 's breach of its representations and obligations hereunder, and WEBiX
shall pay any and all loss, cost, liability and expense incurred by WebIAm on
account of any such third party claim or action, including any amount awarded
against WebIAm in connection with such claim or action and including reasonable
attorneys' fees sustained by WebIAm, and WEBiX shall indemnify and hold harmless
WebIAm from and against any such third party claim or action, provided that
WebIAm promptly notifies WEBiX in writing of any such claim.
Section 11.3. Indemnification Procedure. In claiming any
indemnification hereunder, the indemnified Party shall promptly provide the
indemnifying Party with written notice of any claim which the indemnified Party
believes falls within the scope of this Article 11. The indemnified Party may,
at its own expense, assist in the defense if it so chooses, provided that the
indemnifying Party shall control such defense and all negotiations relative to
the settlement of any such claim and further provided that any settlement
intended to bind the indemnified Party may not be entered into without the
indemnified Party's prior written consent, which shall not be unreasonably
withheld or delayed.
Article XII: Force Majeure
Section 12.1. Force Majeure Events. Neither party shall be liable for
breach of its obligations under this Agreement (other than an obligation to make
payment of any monies) to the extent that such breach is caused by industrial
disputes, lockouts, power failures, acts of government, war, hostilities, riots,
civil disturbance, acts of God or other matters beyond the reasonable control of
the party concerned, whether existing on the Effective Date or arising
thereafter.
Section 12.2. Force Majeure Notice. If the circumstances set out in
Section 12.1 shall come into effect then that party shall as promptly as
practicable notify the other party in writing of the intervention and of the
cessation of any such circumstances and shall state its intention to invoke
Section 12.1 in such notice.
Article XIII: Notices
Section 13.1. Notices. All notices, reports, and receipts shall be in
writing and shall be deemed duly given on (i) the date of personal or courier
delivery; (ii) the date of receipt, if such notice is delivered by commercial
overnight carrier or courier, or (iii) the date of transmission by telecopy or
other electronic transmission service, provided a confirmation copy is also sent
no later than the next Business Day by postage paid, first-class mail, addressed
as follows:
If to WebIAm:
WebIAm, Inc.
Attention: Xxxxxx X. Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx, 00000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
If to WEBiX:
WEBiX Inc.
Attention: K. Xxxxxxx X. Xxxxxxx
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxx.xxx
Either party may change its mailing address by written notice to the
other party in accordance with this Section 13.1.
Article XIV: Assignment
Section 14.1. Assignment. Neither party may assign, without the prior
written consent of the other party, this Agreement or its rights, duties or
obligations under this Agreement to any person or entity, in whole or in part,
and any attempt to do so shall be deemed both void and a material breach of this
Agreement. Notwithstanding the above, either party may assign this Agreement,
including the Software License, to its successor in law through merger or
acquisition or the sale of all or substantially all of the assets of the party,
subject to the prior written approval of the other party, which approval shall
not be unreasonably withheld or delayed. Further, it is expressly understood and
acknowledged that WEBiX may, upon written notice to Licensor but without the
necessity of receiving any approval by the Licensor, sell, sublicense, assign or
otherwise transfer its rights under this Agreement and any other related
agreements between the Parties to any national or regional securities exchange.
Article XV: Support and Maintenance
Section 15.1. Software Support and Maintenance. WebIAm shall provide
Software Support and Maintenance and training in accordance with the terms and
conditions provided in the Software Consulting Services Agreement.
Article XVI: General
Section 16.1. Entire Agreement. This Agreement including its Schedules
and the Software Consulting Services Agreement constitute the entire agreement
between the Parties with respect to the Licensed Software, Documentation and
Software Support and Maintenance, and supersedes any previous agreements
concerning the subject matter hereof (other than the Software Consulting
Services Agreement, as applicable), and no statement or promise which is not
contained herein shall be binding unless included in this Agreement, or the
Software Consulting Services Agreement, provided that where this Agreement
contemplates the incorporation of additional material to be developed in the
future (for example, without limitation, the provision of Enhancements), this
Article 16 shall not limit the application of such provisions according to their
terms.
Section 16.2. Written Amendments. This Agreement may be amended only
upon the written consent of WebIAm and WEBiX as evidenced by the signature of an
authorized executive officer.
Section 16.3. Survival. Articles 1, 2.4, 3.1, 6, 9.4, 10, 11, 13 and
this Article 16 shall survive the termination of this Agreement for any reason.
Section 16.4. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York. No suit or
action related to this Agreement shall be brought unless instituted and
maintained in any state or federal court of competent jurisdiction in New York
County, State of New York. The parties agree to the exclusive jurisdiction of
such courts and agrees to their venue as well.
Section 16.5. Severability. If any part of any Article or Schedule of
this Agreement shall be rendered or declared unenforceable by any decision of
any court of competent jurisdiction, the remainder of this Agreement shall
remain in full force and effect and shall be construed as if such unenforceable
provision had not been in this Agreement, unless the absence of the
unenforceable provision shall substantially destroy the business purpose of this
Agreement.
Section 16.6. Independent Contractor. WebIAm and its personnel, in
performance of this Agreement, are acting as independent contractors and not
employees or agents of WEBiX.
Section 16.7. Source Code Escrow. WebIAm and WEBiX shall enter into a
mutually acceptable, separate Source Code escrow agreement, the Preferred
Registration Technology Escrow Agreement, with each other and with an
independent escrow agent, which shall apply to the Source Code of the Licensed
Software deposited by WebIAm pursuant to this Section. The Source Code escrow
agreement shall, when executed, give WEBiX the right to possess and use the
Source Code in the circumstances described in the Source Code escrow agreement.
WEBiX 's license to use the Source Code pursuant to the Source Code escrow
agreement shall terminate immediately upon the termination or expiration of this
Agreement or the Software License. WebIAm shall deposit with the escrow agent,
Source Code for the Licensed Software (including Software Updates and any
Enhancements accepted by WEBiX), within 15 days of their Acceptance by WEBiX.
WebIAm acknowledges that if WebIAm as a debtor in possession or a trustee in
bankruptcy in a case under the bankruptcy code rejects this Agreement, WEBiX may
elect to retain its rights under this Agreement and the Source Code escrow
agreement as provided in section 365(N) of the bankruptcy code. Upon written
request of WEBiX to WebIAm or the bankruptcy trustee, WebIAm or such bankruptcy
trustee shall not interfere with the rights of WEBiX as provided in this
Agreement and the Source Code escrow agreement, including the right of WEBiX to
obtain the Source Code from the escrow agent and to use such Source Code as set
forth in the Source Code escrow agreement.
Section 16.8. Section Headings. The Section headings contained in this
agreement are for reference purposes only and shall not in any way affect the
meanings or interpretations of this Agreement. Execution
WEBiX and WebIAm have caused this Agreement to be signed by their duly
authorized officers as of the date first set forth above, whereupon it enters
into full force and effect in accordance with its terms.
WebIAm, Inc. WEBiX Inc.
By:/s/ Xxxxxx X. Xxxxxx By:/s/ K. Xxxxxxx X. Xxxxxxx
-------------------- ---------------------
Name: Xxxxxx X. Xxxxxx Name: K. Xxxxxxx X. Xxxxxxx
---------------- ----------------------
Title: President Title: President
SCHEDULE 1
REQUIRED PLATFORM
WEBiX shall provide a computer system having no less than the specified
minimum requirements identified by WebIAm as indicated on the First Statement of
Work. To the extent that WEBiX's business requires a hardware system of higher
capacity to meet its market demand, WEBiX shall be solely and exclusively
responsible for identifying and meeting such needs.
WEBiX shall procure and maintain on the Required Platform, at its sole
expense, the third-party software indicated on its First Statement of Work,
subject to update as a result of issuance of a subsequent version or release by
the third party prior to delivery of the Licensed Software by WebIAm pursuant to
Section 2.1 herein. WEBiX shall be required to maintain and upgrade the required
third-party software as directed by WebIAm for the full term of the License:
SCHEDULE 2
PAYMENT AND CHARGES
3.A. The Software License Fee On the Effective Date, WEBiX shall make a
cash payment to WebIAm in the amount of $100,000. Such fee does not include the
license fee, if any, for future Enhancements.
3.B. Transaction Fee In addition to the Software License Fee, WEBiX
shall pay a fee in an amount equal to seven percent (7%) of WEBiX's Net
Transaction Revenues throughout the entire Term. In the event that WebIAm is
prohibited, by public policy or other reasons from receiving a fee based on
WEBiX's Net Transaction Revenues, WebIAm shall have the right to assign such
fees to any person or entity to which the payment of such fees would not be
prohibited. In the event that any such assignment shall be ineffective, WEBiX
and WebIAm shall mutually agree on an additional License Fee to approximate the
fees that would have been payable in accordance with this Section 3.B. Fees
shall be due and payable in accordance with the terms of the Software Consulting
Services Agreement.
