Software and Technology License Agreement
This Software and Technology License Agreement ("Agreement") is made
and entered into this 11th, day of June 2003 ("Effective Date"), by and
between Speed of Thought Trading Corporation, a New York corporation,
(hereafter "Company"), and ResCon Technology Corporation, a Nevada
corporation (hereafter "Licensee").
The parties agree as follows:
1. Definitions.
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For purposes of this Agreement, the following terms shall have the
following meanings:
a. "Product" shall mean the Company's existing day trading
software platform and associated technology, including the applicable
end-user documentation specified therein, if any, as described in
Exhibit A hereto.
b. "Licensee Product" shall mean a Licensee product that
includes the Product or a modification or a derivative of the Product
c. "Proprietary Rights" shall mean patent rights, copyrights,
source codes, object codes, software programs, trade secret rights,
database rights and all other intellectual and industrial property
rights of any sort.
d. "Subsidiary" shall mean a corporation, company or other
entity more than fifty percent (50%) of the outstanding shares of
securities of which (representing the right to vote for the election
of directors or other managing authority) are owned, directly or
indirectly, by a party, but only so long as such ownership shall
continue.
e. "Technology" shall mean inventions (whether or not
patentable), ideas, processes, systems, and know-how owned or
controlled by Licensor and used by it as of the date of this
Agreement, or hereafter.
2. License Grant.
--------------
a. Subject to full payment under Section 3 and to the other terms of
this Agreement the Company grants to Licensee an exclusive, worldwide,
sublicensable, perpetual, fully paid-up license to use the Product,
Proprietary Rights and Technology as determined in the sole discretion of
the Licensee, and to:
(i) produce, or have its contractors produce the Product for
distribution;
(ii) modify, adapt, and prepare derivative works of the Product,
or have its contractors do so on its behalf, for the purposes
described in 2(a)(iii) below.
(iii) reproduce, have reproduced, display, perform and distribute
(directly or indirectly pursuant to clause (iv) below) the Product and
modifications and derivative works of the Product created pursuant to
clauses (i) and (ii) above;
Licensee will indemnify the Company from all damages, court
costs, settlements, attorneys' fees and expenses incurred by the
Company in connection with any claim of a third party related to the
Licensee Products or the distribution thereof, subject to the
Company's liability for the original Product prescribed in this
Agreement in Section 15(c); provided that (i) Licensee is promptly
notified in writing of a claim from a third party, (ii) Licensee shall
have the sole control of the defense and/or settlement thereof, and
(iii) Company furnishes to Licensee, at Licensee's request and
expense, information reasonably available to Company for such defense;
(iv) sublicense to third parties the rights in 2(a)(i), (ii)
and (iii) above; any such sublicense shall be pursuant to a sublicense
agreement for Company's benefit that contains all the restrictions and
obligations imposed on Licensee hereunder.
b. The foregoing license includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known
as "moral rights" (collectively "Moral Rights"). To the extent such Moral
Rights cannot be licensed and to the extent the following is allowed by the
laws in the various countries where Moral Rights exist, Company hereby
ratifies and consents to any action consistent with the terms of this
Agreement that would violate such Moral Rights in the absence of such
ratification/consent. Company will confirm any such ratifications and
consents from time to time as requested by Licensee.
3. Price and Payment.
------------------
Licensee agrees to pay Company a one time license fee of
4,416,000 shares of restricted Licensee Common Stock, (the "Shares") to be
delivered within ten (10) business days of execution of this Agreement. In
connection with the issuance of the shares, Company represents and warrants
to Licensee that the Shares being acquired pursuant to this Agreement are
being acquired for Company's own account and for investment and not with a
view to the public resale or distribution of such shares. Company
acknowledges that the Shares have not been registered under the Securities
Act of 1933 are being issued pursuant to an exemption provided in Section
4(2) of such Act. Therefore, the Shares shall be deemed to be "restricted
securities" as that term is defined in Rule 144 promulgated under the
Securities Act of 1933 and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Company further acknowledges that the Shares
will bear the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for
investment and may not be sold or offered for sale in the absence of
an effective Registration Statement for the shares under the
Securities Act of 1933 or an opinion of counsel to the Corporation
that such registration is required.
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4. Delivery, Porting, Training and Support.
----------------------------------------
a. At the time Licensee delivers the Shares to Company, Company will
deliver to Licensee copies of the Product in source and object code forms,
and all Proprietary Rights and Technology. Licensee may perform an
acceptance test for the Product within ten (10) days following the receipt
of the Product, for conformance to the applicable specifications published
by Company. If Licensee discovers material non-conformance in such
acceptance test and provides Company with sufficient written instructions,
and documentation ("Nonconformance Materials") to allow Company to readily
reproduce the problems at its facility, Company shall, at its cost, use
reasonable efforts to make corrections, including workarounds within thirty
(30) days after receipt of the required Nonconformance Materials or such
longer period as the parties agree. The Product will be deemed accepted
upon the earliest of the following to occur (i) Licensee provides notice of
acceptance, (ii) Licensee commercially ships or sublicenses the Product or
any part or modification thereof, (iii) ten (10) days after submission of
the Product or a correction to Licensee if Licensee has not first provided
the necessary Nonconformance Materials or (iv) no material non-conformance
for which Licensee has provided the required Nonconformance Materials
remains.
b. Company will provide a total of five person days of Product
training for Licensee personnel at Company's facilities and at mutually
agreeable times.
c. During a reasonable initial development period, Company will
provide additional reasonable support, whether by phone or fax or
occasionally in person, in connection with the initial porting effort.
d. Unless contractually or legally prohibited from doing so, Company
will provide Licensee at no cost with source code for updates and new
releases of the Product that it makes generally available within twenty-
four (24) months after the date of this Agreement.
e. In addition to the fees specified in Section 3, Licensee will pay
all reasonable travel, room and board and other out-of-pocket expenses of
either party in connection with any activity under this Section 4. Such
expenses of the Company to be borne by Licensee, however, shall be approved
by Licensee in advance. Payment for such expenses by Licensee shall be
made within thirty (30) days after receipt of Company's invoice together
with the evidence of the expense.
5. No Restriction on Competition.
------------------------------
Nothing in this Agreement shall be deemed to prohibit Licensee from
developing, making, using, marketing or otherwise distributing or promoting
products competitive with the Product, provided that Licensee does not
breach any provision of Section 8 or disparage the Product in doing so.
6. Prohibition Against Assignment.
-------------------------------
Except as provided in this Agreement, neither this Agreement nor any
rights, licenses or obligations hereunder, may be assigned by either party
without the prior written approval of the non-assigning party; any
prohibited purported assignment shall be void. Notwithstanding the
foregoing, either party may assign this Agreement or delegate its
obligations to any acquiror of all or of substantially all of such party's
assets or business or equity securities.
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7. Term of Agreement.
------------------
This Agreement and the license granted herein shall be effective from
the Effective Date of this Agreement. The term of this Agreement shall run
in perpetuity, unless and until terminated in accordance with Section 8.
8. Default and Termination.
------------------------
This Agreement may be terminated if either party materially fails to
perform or comply with this Agreement or any material provision hereof.
Termination shall be effective thirty (30) days after notice of termination
to the defaulting party if the defaults have not been cured within such
thirty (30) day period.
9. Survival.
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Rights to payment, the indemnity in Section 2(a)(iii), Sections 1, 7,
8, 9, 10, 11, 12, 13, 14, 15 and 17 and, except as otherwise expressly
provided herein, any right of action for breach of this Agreement prior to
termination shall survive any termination of this Agreement. The license
to Licensee and any sublicenses will cease upon termination. Unless the
termination of this Agreement is due to Licensee's material breach,
Licensee and its sublicensees may retain the source code and other
maintenance materials provided hereunder solely for the purposes of
maintaining the Product and providing normal maintenance services to
distributors and end users as allowed herein
10. Notices and Requests.
---------------------
All notices, consents, authorizations, and requests in connection with
this Agreement shall be deemed given (i) immediately upon confirmed fax; or
(ii) four (4) days after the day they are deposited in the U.S. mails,
postage prepaid, certified or registered, return receipt requested; or
(iii) three (3) days after they are sent by air express courier, charges
prepaid; and addressed as follows:
Licensee: ResCon Technology Corporation
Vanderbilt Center
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Company: Speed of Thought Trading Corporation
00 Xxxxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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or to such other address as the party to receive the notice or request so
designates by written notice to the other.
11. Controlling Law.
----------------
This Agreement shall be governed by and construed under the laws of
the State of New York and the United States without regard to conflicts of
laws provisions thereof. The sole jurisdiction and venue for actions
related to the subject matter hereof shall be the New York state and U.S.
federal courts having within their jurisdiction the location of the
Company's principal place of business. Both parties consent to the
jurisdiction of such courts and agree that process may be served in the
manner provided herein for giving of notices or otherwise as allowed by New
York or federal law.
12. Attorneys' Fees.
----------------
If either the Company or Licensee employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorneys' fees, costs and
other expenses.
13. Confidentiality.
----------------
a. Each party agrees that all Products, Proprietary Rights and
Technology it obtains from the other and all other business, technical and
financial information it obtains from the other are the confidential
property of the disclosing party if identified as such at or before the
time of disclosure ("Proprietary Information"). All source code, source
documentation and underlying inventions, algorithms, know-how, systems,
technology and ideas are hereby identified as the Company's Proprietary
Information. Except as expressly and unambiguously allowed herein, the
receiving party will hold in confidence and not use or disclose any
Proprietary Information to its employees, contractors, except for in
legitimate "need to know" instances. Such employees and contractors shall
be similarly bound in writing. For the purpose of clarification, the object
code and the end user documentation of the Product are not Proprietary
Information, but are required to be protected under other provisions of
this Agreement. The receiving party shall not be obligated under this
Section 13 with respect to information the receiving party can document;
(1) is or has become readily publicly available without restriction
through no fault of the receiving party or its employees or agents; or
(2) is received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose such
information; or
(3) was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the disclosing party; or
(4) is independently developed by the receiving party by employees
without access to or reliance upon the other party's similar Proprietary
Information.
b. The four above exceptions to the confidentiality provisions of
this Agreement do not, and should not be interpreted to, confer any license
or other rights to the receiving party for any of the information
referenced in such exceptions. Nothing herein shall permit the receiving
party to disclose or use, except as explicitly permitted elsewhere in this
Agreement, confidential information of the disclosing party and then only
on an "as-needed" basis for purposes of this Agreement.
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c. Upon any termination of this Agreement, each party will promptly
return or destroy any Proprietary Information of the other and any copies,
extracts and derivatives thereof, except as otherwise set forth in this
Agreement.
d. Each party acknowledges that its breach of this Section 13 would
cause irreparable injury to the other for which monetary damages are not an
adequate remedy. Accordingly, a party will be entitled to injunctions and
other equitable remedies in the event of such a breach by the other.
14. Limited Liability.
------------------
EXCEPT AS OTHERWISE PROVIDED BELOW, AND NOTWITHSTANDING ANYTHING ELSE
IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED
UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS
OF THE AGGREGATE OF THE LICENSE FEES PAID TO IT (IN THE CASE OF COMPANY) OR
(IN THE CASE OF LICENSEE) PAID OR OWED BY IT HEREUNDER, OR (B) OR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS (EXCEPT AMOUNTS PAYABLE
UNDER SECTION 3) OR LOST OR CORRUPTED DATA OR INTERRUPTED USE OR (C) COST
OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE LIMITATIONS
IN THIS SECTION 14 SHALL NOT APPLY TO BREACHES OF SECTION 13 OR TO ACTIONS
OF LICENSEE BEYOND THE SCOPE OF THE LICENSE GRANT HEREUNDER. THIS SECTION
DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON
15. Warranty.
---------
a. Company warrants to Licensee that it has full corporate power and
authority to grant the licenses in this Agreement.
b. Company warrants to Licensee that the Product will conform
substantially to the specifications published by the Company. Licensee's
sole remedy for breach of this warranty or for product defects is its
rights under Section 4(a). Company makes no warranty regarding freedom from
bugs or uninterrupted use.
c. (i) Company shall defend or settle at its expense a claim or suit
against Licensee arising out of or in connection with an assertion that the
Product infringes any U.S. copyright , or is a misappropriation of a trade
secret and Company shall indemnify and hold harmless Licensee against and
from damages, costs, and attorneys' fees, if any, in such suit or the
amount of the settlement thereof; provided that (A) Company is promptly
notified in writing of such claim or suit, (B) Company shall have the sole
control of the defense and/or settlement thereof, and (C) Licensee
furnishes to Company, on request, information available to Licensee for
such defense. However, Company is in no way authorized to agree to any
settlement, compromise or the like which would require that Licensee make
any payment, or bear other obligations, including without limitation, the
obligation to make a grant back (but excluding the obligation to stop using
the Product) without prior written approval of Licensee, which shall not be
withheld unreasonably (taking into account proposals by Licensor to bear
the economic and other burdens of such obligations). Licensee shall not
admit any such claim without prior consent of Company.
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(ii) In the case of Section 15(c)(i) above, Company may, at its
option:
(1) procure for Licensee the right to continue using the Product
and the right to continued enjoyment of the licenses granted under this
Agreement; or
(2) replace or modify the Product so that they become non-
infringing but substantially equivalent in functionality and performance
and compatibility.
(iii) In the event that the use of the Product is enjoined on
account of a suit referred to above, Company shall use reasonable efforts
to procure on reasonable terms for Licensee, the right to continue using
the Product, or to replace or modify the Product so that they are outside
the scope of the injunction but substantially equivalent in functionality
and performance and compatibility. If neither of those actions is
reasonably feasible in spite of Company's reasonable efforts, Company shall
have the right to terminate this Agreement and the rights granted herein
and refund to Licensee the unamortized portion of the license fee actually
paid by Licensee for such Product (as amortized on a straight-line basis
over five years from the date of this Agreement).
(iv) Company shall have no obligation under this Section 15(c) if and
to the extent that such claim arises from:
(1) compliance by Company with Licensee's specifications, if
any,
(2) modification of the Product other than by the Company, or
(3) combination of the Product with products other than those
supplied from Company; and the alleged infringement or misappropriation
relates to such compliance, modification or combination.
The Company shall also not have any obligation with respect to a claim
if it has provided Licensee with changes that would have avoided the
problem and the changes are not fully implemented within a reasonable time,
provided that the changes do not materially adversely affect functionality
or performance or compatibility and that Licensee is notified of the
problem the changes avoid.
Licensee will indemnify the Company for any claims referred to in this
subsection (iv) in the same manner as provided in Section 15(c)(i) above.
d. Company represents and warrants to the Licensee that as of the
Effective Date: (i) Company is the sole owner of all rights, title and
interest in the Product, (ii) Company has not assigned, transferred,
licensed, pledged or otherwise encumbered any Product or underlying
technology or intellectual property rights with respect thereto in a manner
inconsistent with the terms of this Agreement or agreed to do so, (iii)
Company is not aware of any actual or potential violation, infringement or
misappropriation of any third party's rights (or any claim or potential
claim thereof) by the Product, (iv) neither Company's entering nor
performing this Agreement will violate any right of or breach any
obligation to any third party under any agreement or arrangement between
Company and such third party, (v) to the best of the Company's knowledge no
licenses, permissions or releases of third party rights are necessary for
Licensee's production or distribution of the Product in accordance with the
terms of this Agreement, (vi) all copyrightable matter licensed hereunder
has been created by persons who were employees of the Company at the time
of creation and no third party has or will have "moral rights" or rights to
terminate any assignment or license with respect thereto, and (vii) Company
has and will have agreements with its employees and contractors sufficient
to allow it to provide Licensee with the licenses to intellectual property
rights developed by them for Company.
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e. COMPANY MAKES NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT
TO THE PRODUCT (OTHER THAN THOSE SET FORTH ABOVE) OR ANY DERIVATIVES
THEREOF OR ANY SERVICES OR LICENSES AND DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
16. Negotiated Grant Back.
----------------------
Licensee agrees to negotiate, in good faith, reasonable terms and
conditions for the grant to Company of the right to use, reproduce, modify,
sublicense and/or distribute any Licensee Value-Added Technology (meaning
any work of authorship, invention, know-how, idea or other technology
embodied in any modification of the Product by or for Licensee, which
modification is made commercially available for licensing as a stand-alone
item or as incorporated in another product). In any event, Licensee agrees
to license such Value-Added Technology to Company on terms and conditions
which, taken as a whole, are at least as favorable to Company as the most
favorable terms and conditions that Licensee has or may grant from time to
time to any third party (except if primarily in settlement of a bona fide
dispute regarding infringement of the Value-Added Technology) with respect
to the Value-Added Technology (or a product of which it is a part). In
determining whether the terms and conditions offered to Company are at
least as favorable as those granted to a third party, (i) all terms and
conditions will be considered as a whole and (ii) only the value and
consideration attributable to the Value-Added Technology (not the Product)
will be taken into account
17. General.
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a. Upon execution by both parties, this Agreement shall constitute
the entire agreement between the parties with respect to the subject matter
hereof and merges all prior and contemporaneous communications. It shall
not be modified except by a written agreement dated subsequent to the date
of this Agreement and signed on behalf of Licensee and Company by their
respective duly authorized representatives.
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b. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.
c. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the
waiving party.
d. The Section headings used in this Agreement and the attached
Exhibits are intended for convenience only and shall not be deemed to
supersede or modify any provisions.
e. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS
AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH
PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO
THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above. All signed copies of this Agreement shall be deemed
originals.
LICENSEE: COMPANY:
ResCon Technology Corporation Speed of Thought Trading Corporation
By: By:
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Xxxxxxxxx Xxxxxxxxxxx, President Xxxxxxxxx Xxxxxxxxxxx, President
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