EXHIBIT 10.1
SOFTWARE LICENSE AGREEMENT
APRIL 5, 2001
This Agreement is made and entered into this 9th day of May 2001 by
and between RDS Tasks of Ohio, Inc. (alternatively referred to herein as
"Licensor" or "RDS") and Geoalert Incorporated (formerly, Moonlight R&D, Inc.)
(herein, the "Licensee").
Whereas:
1. "Geoalert" is a system of collecting closing alerts for schools,
businesses and other organizations and distributing these to telecom media such
as television and radio broadcasting ("CAS");
2. Geoalert has been operated on a system developed by The RoviSys
Company ("RoviSys") who licenses the system to Geoalert and maintains custody of
all Source Code;
3. A new and updated system will be developed by the Licensor which
will encompass (a) CAS and will develop (b) a new personal alert service, which
will provide for individuals to call in to obtain the closing status of their
organization (school, business, or other organization) or optionally be notified
of the closing status electronically (these services will be categorized as
Individual Alert Services or "IAS" for the purposes of this Agreement) and (c) a
local sports score reporting service ("LSS"). The new system shall be the
property of Licensor and shall be licensed to Licensee subject to the terms,
provisions, agreements, covenants and conditions set forth herein (the "RDS
System").
4. The Geoalert database, present and future, is not subject to this
Agreement. The database represents that data pertaining to system participants;
that is, schools, businesses, media customers, other organizations, public
customers, and so forth.
Now, Therefore, in consideration of the mutual promises and covenants
as set forth herein, and other valuable consideration, the receipt, adequacy,
mutuality and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. RDS Undertakings.
(a) The System. Licensor shall promptly undertake to purchase the
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existing software from RoviSys provided for in a certain "Settlement Agreement
and Release" among RoviSys. Moonlight R&D, Inc. and others dated on or about
September 2000; provided, however, that RDS (i) shall use it's efforts to
purchase the existing software from RoviSys at the best price reasonably
attainable, (ii) has obtained the approval of Licensee to any purchase price for
the existing software, (iii) is assured that it has acquired the existing
software for its exclusive use, and free and clear of any liens, encumbrances,
limitations or restrictions of any nature, (iv) is assured that no rights in or
copies of the existing software have been retained by RoviSys or any other party
and (v) is able to acquire the existing software not later than thirty (30) days
from the date hereof.
(b) Joint Development Plan. RDS and Licensee shall, upon the
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execution hereof, jointly undertake to develop, prepare and finalize the content
of the RDS System and a budget for the development, testing and implementation
of the RDS System, which shall set forth in reasonable detail the makeup and
capabilities of the System and the costs thereof (the "Joint Development Plan").
RDS and Licensee shall use their good faith efforts to complete the Joint
Development Plan not later than April 30, 2001.
(c) RDS System. RDS shall develop the RDS System substantially in
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accordance with the Joint Development Plan, and:
(i) The RDS System shall be available for testing, review and
acceptance by Licensee in accordance with the timing
requirements set forth in the Joint Development Plan for
introducing LSS and IAS for the 2001 - 2002 school season.
Licensee shall provide acceptance (or rejection) of the RDS
System as set forth in the Joint Development Plan. Licensee
shall be required to accept the RDS System so long as it is
substantially in compliance with the Joint Development
Plan.
(ii) RDS shall, within fifteen (15) days following receipt of
Licensee's written acceptance of the RDS System, provide
the RDS System to Licensee for Licensee's implementation
and operation of the System. Upon acceptance and
implementation of the RDS System, it shall be deemed
"complete" for purposes of this Software License Agreement.
(iii) Following acceptance of the RDS System pursuant to
subparagraph (i) above, RDS shall assist Licensee in the
implementation and operation of the System which may from
time to time during the term hereof be requested by
Licensee.
The existing software and the RD System shall collectively be referred to herein
as the "System".
2. Licensee Undertakings.
(a) RoviSys. Upon execution hereof, Licensee shall and does hereby
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assign its right in and to the existing software, including any right to
purchase it, to RDS. Licensee shall pay to RoviSys such amount as has been
approved by it for the purchase of the existing software.
(b) Joint Development Plan Assistance. Licensee shall provide
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personnel to assist RDS in the preparation of the Joint Development Plan and
shall provide its review and comments on such Plan on a timely basis.
(c) Hardware. Licensee shall be responsible for and shall provide
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such computer hardware and publicly available software, and such other resources
and facilities, as may be necessary to develop, test, implement, complete and
operate the System including, but not limited to the requirements of the Joint
Development Plan.
3. Grant of License. Licensor grants to Licensee a personal,
nontransferable right to use the RDS System in accordance with the terms,
provisions, agreements, covenants and conditions set forth herein. No rights are
granted to modify, amend, change, adapt, improve, supplement, convey, transfer,
assign, share, register or sublicense the System without the express written
consent of Licensor. In any event, each improvement, modification, change,
amendment, adaptation, supplementation or registration, whether or not approved
by Licensor, shall be the sole and exclusive property of Licensor.
4. Term. The License granted herein to Licensee shall be for a period
commencing upon the execution hereof and continuing for a period of one (1)
year, unless earlier terminated in accordance with the premises hereof.
5. Payments and Compensation to RDS.
(a) Payments. Licensee shall be required to make on a timely basis
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the following payments, without deduction or setoff (unless specifically
authorized herein), to RDS:
(i) Contemporaneous with the execution hereof, Licensee shall
pay the amount of Twenty-Two Thousand Dollars ($22,000.00)
as repayment of a loan (or loans) made during the period
September, 2000 through March 16, 2001, interest free;
(ii) Contemporaneous with the execution hereof, Licensee shall
reimburse RDS for its costs incurred to date, i.e.,
Twenty-Three Thousand Dollars ($23,000.00), in connection
with RDS's preparation of the Strategic IT Plan of
December 2000, and other out-of-pocket costs;
(iii) Upon acquisition of the existing software, Licensee shall
reimburse RDS in an amount equal to the payment made by
RDS to RoviSys to acquire the existing software, plus
reasonable out-of-pocket expenses incurred by RDS in
connection with such acquisition, or, alternatively, pay
RoviSys such purchase price directly and reimburse RDS for
its expenses;
(iv) Commencing upon the execution hereof and in consideration
of the development and completion of the RDS System,
Licensee shall pay to and reimburse RDS for all of its
out-of-pocket expenses incurred, directly or indirectly,
in connection with the development of the System
including, but not limited to: development and supervisory
personnel; employee related costs; consultants;
independent contractors; acquisition of licensed software
to be used or incorporated into the RDS System; travel and
away from home expenses of its personnel; supplies and
tools; administrative expenses and overhead (the "RDS
Costs") as generally outlined in the Joint Development
Plan. RDS shall submit an invoice to Licensee at the end
of each calendar month until acceptance of the RDS System
setting forth the RDS Costs in such detail as Licensee may
reasonably request, and Licensee shall pay such invoice
amount not later than fifteen (30) days after each such
submission;
(v) When the RDS System is complete (as such term is defined
herein), Licensee shall pay to RDS as a License Royalty an
amount equal to two percent (2%) of its gross revenues
derived from the provision of IAS. Such gross revenues
shall be determined in accordance with generally accepted
accounting principles ("GAAP") as applied in the United
States and shall be payable on the fifteenth (15th) day of
each calendar month following completion of the RDS
System. A statement of gross revenues shall accompany each
such payment in form reasonably acceptable to RDS. Revenue
from corporate sponsors and annual fees from broadcast
media customers are not a part of IAS gross revenue.
RDS shall have the right to inspect and audit the books and records of Licensee
during normal business hours at the place where such books and records are
maintained to determine that payment tendered to RDS pursuant to this Agreement
have been made in accordance with the terms, provisions, agreements, covenants
and conditions hereof. Further, for purposes hereof, Licensee shall mean
Geoalert Incorporated, its parent, subsidiaries, brother and sister entities,
affiliates, officers, directors, employees and persons and entities under
control of any of the foregoing.
(b) Support Compensation. Should Licensee request or require the
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services and assistance of RDS in connection with (i) support and maintenance of
the System, (ii) marketing of the System's services, or (iii) upgrade,
amendments and improvements to the System, then each such request shall be
subject to the mutual agreement of Licensee and RDS; provided, however, in the
absence of such mutual agreement, Licensee shall pay RDS's Costs as defined
above and in accordance with the procedures set forth in Subsection 5(a)(iv)
hereof.
(c) Stock Options. In addition to the foregoing, Licensee has
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granted to RDS options to purchase common stock of Licensee under terms and
conditions set forth in a certain Stock Option Agreement executed, entered into
and delivered contemporaneously herewith.
6. Conditions. RDS's and Licensee's obligations to perform their
respective undertakings as set forth herein shall be conditioned upon:
(i) Licensee having obtained funding in an amount not less than
Five Hundred Thousand Dollars ($500,000.00) not later than
April 15, 2001; and
(ii) RDS is able to acquire the existing software in accordance
with the requirements hereof not later than April 30, 2001.
RDS or Licensee may waive one or more of the foregoing conditions. No such
waiver shall be effective, however, unless made in a writing which refers
specifically to this Agreement and the subsection or portion thereof being
waived. No such waiver shall constitute a waiver of any other term or provision
of this Agreement.
7. Default and Termination.
(a) In the event of a breach of any of the obligations of the
Licensee made hereunder, including the payment obligations of Section 5 hereof,
which breach (or breaches) is not cured by Licensee within fifteen (15) days
following the Licensor's written notice to Licensee of such breach, then
Licensor may, at its option, terminate this Agreement and the rights of the
Licensee granted hereunder by giving the Licensee thirty (30) days written
notice. Such notice shall state breach by Licensee and shall specify the date
upon which the Licensee's use of the System shall terminate. Upon Termination,
Licensee shall cease use of the System and shall return all materials relating
to the System to Licensor. In addition, Licensor shall have, and may pursue, all
of its other remedies which exist pursuant to this Agreement or in law or
equity.
(b) When the RDS System is complete, Licensee shall have the right
and option to purchase the System from the Licensor in exchange for the payment
of One Dollar ($1.00). Licensee may exercise its right to purchase the System by
giving Licensor written notice of its exercise of such right; whereupon Licensor
(i) shall convey, transfer and assign the System to Licensee by instrument
reasonably acceptable to Licensor and (ii) shall deliver to Licensee the Source
Code.
8. Miscellaneous Provisions.
(a) Governing Law. This Software License Agreement shall be governed
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by and construed in accordance with the laws of the State of Ohio and
jurisdiction for all purposes shall be vested in the Courts within the State of
Ohio.
(b) Entire Agreement. This Agreement represents the entire agreement
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between the parties hereto and supersedes all prior agreements, discussions,
correspondence and representations of any nature, whether oral, written or
otherwise, between the parties. For purposes hereof, this Software License
Agreement includes the option granted to Licensor contemporaneously herewith.
(c) Exclusivity. Both Licensor and Licensee agree that each will
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deal solely and exclusively with the other with respect to the System and the
undertakings set forth herein. Licensor shall not use the System other than as
set forth herein and Licensee shall not provide PAS, BAS, GAS, SSR or related
services other than through the System and other than in accordance with the
terms and provisions hereof.
(d) Notices. Where notice is required to be given hereunder, it
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shall be sent either by (i) certified mail with return receipt requested, (ii)
overnight courier with receipt acknowledgment, (iii) facsimile with transmittal
confirmation report or (iv) personal delivery to the following:
Licensor:
RDS Tasks of Ohio, Inc.
00000 Xxxxx Xxxx
Xxxxxxx, Xxxx 00000
Facsimile: 440/338-1568
Attn: Xxxxxx X. Xxxxxxx
Licensee:
Geoalert Incorporated
000 X. Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Facsimile: 440/260-7552
Attn: Xxxxxxx Xxxxxxx
Notice shall be deemed received when the U.S. Postal Receipt for Certified Mail
is signed by the recipient and returned to the sender, when acknowledgment of
receipt is made to a recognized overnight courier service, when a transmittal
confirmation report is received via facsimile by the sender or when personal
delivery is made to either of the individuals above.
(e) Indemnification. Each of the Licensor and Licensee shall
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indemnify, protect, defend and hold harmless to the other party for any breach
of any term, provision, agreement, covenant or condition set forth herein.
Licensee shall defend, indemnify, protect and hold harmless the Licensor, its
owners, officers, directors, employees and representatives from any claim of any
nature arising out of Licensee's provision of CAS, LSS, IAS and all related
services and the operation of the System.
(f) Assignment. This Software License Agreement may not be assigned,
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transferred, conveyed, sublet or sublicensed without the prior written consent
of the other party.
(g) Confidentiality. The terms and provisions hereof shall be
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maintained as confidential as will be the design of the System.
(h) Authorization. This Agreement is binding and enforceable against
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both the Licensor and Licensee and has been duly authorized by the Board of
Directors of each.
This Software License Agreement has been made and entered into this
9th day of May, 2001.
LICENSOR:
RDS TASKS OF OHIO, INC.
By /s/ Xxxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxx, its President
LICENSEE:
GEOALERT INCORPORATED
By /s/ Xxxxxxx X. Xxxxxxxx
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President
