EXHIBIT 10.1
LICENSE AGREEMENT
This License Agreement is effective as of February 27, 2001 , by and between
Omni Short Film Distribution of 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxx 00000 and Bentley Communications Corp., a Florida corporation having
its principal place of business at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxx Xxxxxxx, Xxxxxxxxxx, 00000.
1. Definitions.
"Agreement" means this licensing agreement only.
"Film Library" means the entire short film library owned by Omni Short Film
Distribution (list of which is attached to this agreement under Schedule
A).
"Confidential Information" means information relating to either party's
product plans, trade secrets, designs, costs, prices, finances, marketing
plans, business opportunities, personnel, research, or development; any
information designated by the disclosing party as confidential in writing
or, if disclosed orally, reduced to writing and designated as confidential
within thirty (30) days; and the terms and conditions of this Agreement.
"Confidential Information", excludes information that: (1) is now or
subsequently becomes generally available to the public; (2) can
demonstrated to have been rightfully in possession prior to disclosure, or
without obligation of confidentiality; (3) is independently developed
without material reference to the other party's "Confidential Information";
or (4) is rightfully obtained from a third party who has the right to
transfer or disclose it.
"Effective Date" means the effective date of this agreement.
"Additions" means any additions to the Short Film Library that Omni Short
Film Distribution may add.
2. License Grant. In consideration of the terms and conditions set forth in
the Agreement and the issuance of 200,000 common shares of Bentley
Communications Corp., with a deemed value of $0.10 per share, to be issued
to Omni Short Film Distribution or its nominees, and subject to Rule 144 of
the Securities and Exchange Act of 1933, Omni Short Film Distribution
hereby grants to Bentley Communications Corp. a non-exclusive world-wide
right and license to exhibit and to utilize fully, on any of Bentley's
websites or the websites of Bentley's subsidiaries, the Film Library.
3. Ownership. All right, title and interest in the Film Library is retained by
Omni Short Film distribution
4. Independent Development. Nothing in this Agreement will impair either
party's right to independently acquire, license, develop, manufacture or
distribute for itself, or have others independently develop, manufacture or
distribute for it, similar films performing the same or similar functions
as the films contemplated by this Agreement, or to market and distribute
such similar films in addition to, or in lieu of, the films set forth in
this Agreement.
5. Warranty. Omni Short Film Distribution, at Omni Short Film Distribution's
expense, and at Bentley Communications Corp.'s option, will either promptly
repair or replace defective products. Omni Short Film Distribution
represents and warrants that the Film Library does not infringe any
intellectual property rights of any third party anywhere in the world.
6. Indemnity. (1) Omni Short Film Distribution will, at their expense, defend
any claim or action brought against Bentley Communications Corp. to the
extent it is based on a claim that the product provided under this
Agreement, as used within the scope of the license granted by Omni Short
Film Distribution, infringe or violate any patent, copyright, trademark,
trade secret or other proprietary right of a third party, and Omni Short
Film Distribution will indemnify and hold Bentley Communications Corp.
harmless from and against any cost, damages, and fees reasonably incurred
by Bentley Communications Corp., including but not limited to fees of
attorneys and other professionals, that are attributable to such claim; (2)
provided that (i) Bentley Communications Corp. gives Omni Short Film
Distribution reasonably prompt notice in writing of any such claim or suit
and permits Omni Short Film Distribution, through counsel of its choice, to
answer the charge of infringement and defend such claim or suit; (ii)
Bentley Communications Corp. provides Omni Short Film Distribution
information, assistance and authority, at Omni Short Film Distribution's
expense, to enable Omni Short Film Distribution to defend such claim or
suit, and (iii) Omni Short Film Distribution will not be responsible for
any settlement made by Bentley Communications Corp. without Omni Short Film
Distribution's permission. (3) If Omni Short Film Distribution agrees to
settle the claim or suit, both Omni Short Film Distribution and Bentley
Communications Corp. agree not to publicize the settlement nor to permit
the party claiming infringement to publicize the settlement unless both
party's to the Agreement agree otherwise in writing.
7. DISCLAIMER. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF OR
FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDIRECT DAMAGES
ARISING FROM A CLAIM THAT GAME INFRINGES OR VIOLATES ANY INTELLECTUAL
PROPERTY RIGHTS OF A THIRD PARTY.
8. Nondisclosure and Nonuse of Confidential Information. Each party agrees to
use the same degree of care that it uses to protect its own confidential
and proprietary information of similar importance, to prevent the
unauthorized use, disclosure, publication or dissemination of the other
party's Confidential Information. Either party may disclose Confidential
Information if required by any judicial or governmental request,
requirement or order; provided that the disclosing party will take
reasonable steps to give the other party sufficient prior notice in order
to contest such request, requirement or order by notifying the discloser of
such request.
9. Term. The term of this Agreement will commence as of the Effective Date and
continue for three (3) years.
10. Termination for Cause By Either Party. Either party may suspend its
performance and/or terminate this Agreement if the other party is in
material breach of any warranty, term, condition or covenant of the
Agreement, and fails to cure that breach within thirty (30) days after
written notice of that breach and of the first party's intention to so
suspend its performance.
11. Effect of Termination. Upon any termination of this Agreement or any
provision thereof, the rights and obligations of the parties with respect
to sections 1, 3, 8, 12-28 will survive such termination.
12. Return of Confidential Information. Upon any termination of this Agreement,
each party will certify the destruction of any Confidential Information
belonging to the other party, including any copies thereof, with ten (10)
business days.
13. Dispute Resolution Coverage. Any dispute between the parties with respect
to this Agreement shall be submitted for structured negotiation and, if
necessary, a mini-trial pursuant to the Agreement. The commencement, and
any resolution reached as a result, of any dispute resolution pursuant to
the Agreement shall be considered Confidential Information to be held in
confidence by both parties pursuant to the Agreement.
14. Structured Negotiation. For appropriate issues as set forth in the
preceding paragraph, either party may invoke this procedure by giving
written notice to the other party designating a corporate officer with
appropriate authority to be its representative in negotiations relating to
the dispute.
(i) Upon receipt of such notice, the other party shall, within five (5)
working days, designate a corporate officer with similar authority to
be its representative.
(ii) The designated officers shall, following whatever investigation
each deems appropriate, promptly, but no later than thirty-five (35)
days after the original notice, enter into discussions concerning the
dispute.
(iii) If, within forty-five (45) days, the dispute is not resolved as a
result of such discussions, either party may request the commencement
of a mini-trial pursuant to the Agreement.
15. Mini-Trial. Any dispute not resolved by structured negotiation, will be
resolved by a mini-trial. A party may commence a mini-trial by written
notice to the other party. The mini-trial shall commence within thirty (30)
business days of receipt of such notice by the other party. The mini-trial
will be held before a judge mutually agreed to by the parties; no jury will
be involved in the mini-trial. Each party shall have a maximum of three (3)
days each to do discovery, which shall consist of document discovery and
the taking of depositions. The Federal Rules of Evidence for procedure and,
except as limited by this Agreement, discovery shall apply. The mini-trial
shall take place in one (1) day in San Francisco, California. Each party
shall pay the fees of its own attorneys and the expenses of its witnesses.
All other costs and expenses of the mini-trial shall be borne equally by
the parties. The decision of the judge shall be final and binding with
respect to both parties. The decision may be enforced by either party in a
court of competent jurisdiction.
16. Force Majeure. Neither party shall be liable for any failure or delay in
its performance under this Agreement due to causes, including, but not
limited to, acts of God, acts of civil or military authority, fires,
epidemics, floods, earthquakes, riots, wars, sabotage, labor shortages or
disputes, and governmental actions, which are beyond its reasonable
control; provided that the delayed party: (i) gives the other party written
notice of such cause promptly, and in any event within fifteen (15) days of
discovery thereof; and (ii) uses its reasonable efforts to correct such
failure or delay in its performance. The delayed party's time for
performance or cure under this Section 10.1 shall be extended for a period
equal to the duration of the cause or sixty (60) days, whichever is less.
17. Relationship of Parties. Omni Short Film Distribution and Bentley
Communications Corp. are independent parties. Each party will determine, in
its sole discretion, the manner and means by which its obligations under
this Agreement are accomplished, subject to the express condition that each
will at all times comply with applicable law.
18. Assignment. The rights and liabilities of the parties hereto will bind and
inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that Omni Short Film
Distribution may not assign or delegate its obligations under this
Agreement either in whole or in part, without the prior written consent of
Bentley Communications Corp. Any attempted assignment in violation of the
provisions of this Agreement will be void.
19. Equitable Relief. Because Omni Short Film Distribution and Bentley
Communications Corp. will have access to and become acquainted with
confidential and proprietary information of the other party, the
unauthorized use or disclosure of which would cause irreparable harm and
significant injury which may be difficult to ascertain and which may not be
compensable by damages alone, each party agrees that the other party will
have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief without
prejudice to any other rights and remedies that each party may have for the
other party's breach of this Agreement.
20. Severability. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be void, invalid, or
unenforceable, that provision of the Agreement shall be enforced to the
maximum extent permissible so as to effect the intent of the parties, and
the remainder of this Agreement shall continue in full force and effect.
21. Notices. All notices required or permitted under this Agreement shall be in
writing, reference this Agreement and be deemed given when: (i) delivered
personally; (ii) when sent by confirmed telex or facsimile; (iii) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) one (1) day after deposit with a
commercial overnight carrier, with written verification of receipt. All
communications will be sent to the addresses set forth below or such other
address designated pursuant to this Agreement:
For Omni Short Film Distribution For Bentley Communications Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 000 9800 X. Xxxxxxxxx Blvd, Suite 625
X.X. Xxx 00000 Xxx Xxxxxxx, XX 00000
Xxx Xxxxxxx, XX 00000
22. No Waiver. Failure by either party to enforce any provision of this
Agreement shall not be deemed a waiver of future enforcement of that or any
other provision.
23. No Rights in Third Parties. This Agreement is made for the benefit of Omni
Short Film Distribution and Bentley Communications Corp. and their
respective subsidiaries and affiliates, if any, and not for the benefit of
any third parties.
24. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which will constitute
but one and the same instrument.
25. Headings and References. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
26. Construction. This Agreement has been negotiated by the parties and their
respective counsel. This Agreement will be fairly interpreted in accordance
with its terms and without any strict construction in favor of or against
either party.
27. Export. Neither party shall export, re-export or transfer, whether directly
or indirectly, Confidential Information or other technical data under this
Agreement without first obtaining a license from the United States
Department of Commerce or any other agency or department of the United
States Government, if required.
28. Entire Agreement and Governing Law. This Agreement constitutes the entire
agreement with respect to the subject matter hereof and supersedes all
prior or contemporaneous oral or written agreements concerning such subject
matter. This Agreement may not be amended except by the written agreement
signed by authorized representatives of both parties. This Agreement will
be governed by and construed in accordance with the laws of the State of
California, excluding that body of California law concerning conflicts of
law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
Omni Short Film Distribution Bentley Communications Corp.
BY: BY:
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxx
--------------------------- ------------------------------
Signature Signature
NAME: Xxxxx Xxxxxx NAME: Xxxxxx X. Xxx
TITLE: President TITLE: President
