[EXHIBIT 10.1.7]
LICENSE AGREEMENT
LICENSE AGREEMENT dated October 27, 2003, between FILM & MUSIC
ENTERTAINMENT, INC. ("Licensor"), a Nevada corporation having its
principal place of business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxxxxxx Xxxx, C/'. 90067, and WESTERN MEDIA GROUP CORPORATION
("Licensee"), a Minnesota corporation having its principal
place of business at 00 Xxxx Xxxxx, Xxxxx 000X, Xxxxxxxx, Xxx
Xxxx 00000.
WITNESSETH
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WHEREAS, Licensor is the owner of all rights to a Linux-based
real-time streaming video broadcast server which allows for
no-buffering and which is known as "XXXXX"; and
WHEREAS, Licensee wishes to license from Licensor all of
Licensor's right, title and interest in and to XXXXX, upon the
terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
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Section 1.1 Grant of Exclusive License. Upon the terms and
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subject to the conditions hereinafter set forth, Licensor hereby
grants to Licensee, for the term of this Agreement, the ,itl-"f"t-L
exclusive, assignable right to use XXXXX (including its related
software(." object and source codes and the tradename "XXXXX") in
the Territory, and for the Permitted Uses, as defined below. For
the purposes of this Agreement, the "Territory" shall mean the
United States of America and its territories and possessions. For
the purposes of this Agreement, the "Permitted Uses" shall mean
any use of XXXXX which relates in any way to the medical or
healthcare industry or medical or healthcare education.
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Nothing contained herein shall preclude in any way Licensee from
changing the trade name of XXXXX or using only some, rather than
all, of the features or components of XXXXX, or not using XXXXX and
any and all of the rights granted under the license at all,
Included with the license granted hereunder are copies of, and
the exclusive right to use, the following in the Territory: all
documentation and other materials (whether hardware or software)
necessary for the exercise of the license rights granted hereunder
or the operation and maintenance of XXXXX, which shall include the
complete, up-to-date and documented interface source code;
information on all known bugs or other issues; the history of the
development of XXXXX; and a general, practical summary of how
XXXXX operates from both the business side and the user-experience
side. Licensor and licensee shall engage in good faith, reasonable
negotiations with respect to the source code, source code
extensions, privacy and protection issues and other matters
relevant to the protection of licensor's intellectual property.
Section 1.2 Term. The license granted by this Agreement shall
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continue for a period of ten (10) years from the execution and
delivery hereof. After every two year interval the user based
royalty fee shall be reviewed and renewed for another two
year period there after. This fee may be re-negotiated upon mutual
agreement by both parties.
Section 1.3 No Assumption or Payment of Liabilities. Licensee
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shall not assume, or have any liability or responsibility for,
any trade or other account payable of Licensor or any other
liability or obligation of Licensor. Licensor and Licensee agree
that Licensee shall not assume, and will have no liability or
responsibility for any liabilities or obligations of Licensor
(i) for any employee-related obligations
(ii) with respect to litigation and other legal proceedings
(whether civil or criminal), fines and claims and any related
fees and expenses; or
(iii) for the fees and disbursements of Licensor's counsel,
accountants and
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other experts, and all other expenses incurred by Licensor, in
connection with the preparation for, entering into and
consummation of the transaction contemplated by this Agreement
and all other matters incident thereto.
ARTICLE II
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Section 2.1 Royalty Payment: XXXXX Servers. The one-time
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advance royalty to be paid by Licensee to Licensor for the
license (including all accompanying rights) granted hereby,
and for two XXXXX servers, shall be the sum of $20,000.00, which
shall be paid by the delivery to Licensor, contemporaneously
with the execution and delivery of this Agreement, of a check in
such amount payable to Licensor. Future units not to exceed
$800.00. The XXXXX Servers sha1l be delivered to Licensee by
Licensor no later than 30 days after the execution of this
Agreement. In addition, Licensee shall pay to Licensor, for
the two year period following the execution of this Agreement,
a royalty of $1.00 for each use of XXXXX by a client of
Licensee or its wholly owned subsidiary, Med-Link USA, Inc. No
further payment from Licensee to Licensor is contemplated by
this Agreement.
ARTICLE III
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Future Cooperation
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Section 3.1. Cooperation. From and after the date hereof,
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either party hereto will, at the request of the other party
hereto, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such instruments and other
documents, and perform or cause to be performed such acts, as
may reasonably be required to evidence or effectuate the
transaction contemplated by this Agreement. In addition, each
party hereto, upon the reasonable request of the other party
hereto, shall make available to the other party hereto, for
inspection and/or copying, such books and records as may
reasonably be required in connection with the filing of
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tax returns, compliance with other govermental laws, rules or
regulations or any other reasonable purpose.
ARTICLE IV
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Representations and Warranties Of Licensor
Licensor hereby represents and warrants to Licensee as follows
Section 4. Organization. Good Standing and Corporate Power
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and Authority of Licensor. Licensor is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Nevada and has the corporate power and authority to enter into
this Agreement and to perform the obligations required of it under
this Agreement. Licensor has all requisite power and authority,
and all licenses, franchises, permits and authorizations, necessary
to carry on its business as presently conducted and to own, lease
and operate the assets, property and business owned, leased and
operated by it.
Section 4.2. Effective Agreement of Licensor.
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(a) The execution and delivery by Licensor of this Agreement
and the consummation by Licensor of the transaction contemplated
hereby have been duly authorized by all necessary corporate
action of Licensor, and this Agreement constitutes, and any
other agreements or instruments executed and delivered by
Licensor prior to or contemporaneously with the execution and
delivery of this Agreement, when executed and delivered by
Licensor, will constitute, legal, valid and binding obligations
of Licensor, enforceable against Licensor in accordance with
their respective terms.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transaction contemplated hereby will (i)
violate any provision of the articles of incorporation or bylaws
of Licensor, as amended to date, (ii) with or without the giving
of notice and/or the
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passage of time, violate, conflict with, result in the breach or
termination of, constitute a default under, or result in the
creation of any material lien, charge or encumbrance upon any of
the assets or property of Licensor pursuant to, any contract,
agreement, lease or commitment to which Licensor is a party or
by which Licensor or any of its assets or property may be bound,
or (iii) violate any judgment, decree, order, statute, rule or
governmental regulation applicable to Licensor or any of its
assets, property or business.
(c) No consent, approval, qualification, order or authorization
of, or filing with, any governmental authority, including any
court, or other third party is required in connection with
Licensor's valid execution, delivery or performance of this
Agreement or the consummation of any transaction contemplated
hereby.
Section 4.3 Undisclosed Liabilities. As of and from and after
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the execution and delivery of this Agreement, Licensee will not
be liable, obligated for or otherwise responsible for
(a) any liability or obligation of Licensor, whether accrued,
absolute, contingent, contractual or otherwise and whether or not
incurred in the ordinary course of Licensor's business, which
existed prior to the execution and delivery of this Agreement,
(b) any other expense, liability or obligation of Licensor
relating to a claim of a third party based upon an event which
occurred prior to the execution and delivery of this Agreement,
or (c) any expense, liability or obligation owed by Licensor to
its shareholders or any director or officer of Licensor. or any
of their affiliated entities or related persons.
Section 4.4. Litigation. There are no actions, suits,
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proceedings, judgments or decrees pending or, to the knowledge
of Licensor, threatened involving Licensor or its business. There
are no judgments, orders or decrees outstanding against Licensor.
Licensor has no knowledge of
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any pending or threatened proceeding or condition which would, in
any manner, impair or curtail the ability of Licensee to obtain
the benefit of the license granted hereunder.
Section 4.5 Ownership Rights of Licensor. XXXXX is being
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lawfully used in Licensor's business and may be so used by
Licensee without payment to, infringement claim from or other
legal interference from, any third party, and there has been no
assignment, license or other authorization given to any third
party to use XXXXX. None of the rights embodied in the license
granted hereunder are used in connection with any business other
than the business of Licensor. To the best of its knowledge,
Licensor has the right to use XXXXX without infringement on the
rights of any other person or entity.
Section 4.6 Product Warranties. Licensor is unaware of any
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design or other defect in the XXXXX software or hardware and has
not received notice of the assertion of any claim for a
credit, refund or damage recovery as a result thereof.
ARTICLE V
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Survival of Representations and Warranties: Indemnification
Section 5.1 Survival of Representations and Warranties. The
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representations and warranties made by Licensor and Licensee in
this Agreement or in any instrument or other document delivered
pursuant to this Agreement shall survive the execution and
delivery of this Agreement.
Any claim by Licensor or Licensee based upon a breach of a
representation or warranty shall be in writing and be asserted
prior to the expiration of the survival period. Nothing
contained in this Section 5.1 with respect to the survival of
representations arid warranties shall affect in any way the
obligations of the parties hereto that are to be performed,
in whole or in part, after the execution and delivery of this
Agreement
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ARTICLE VI
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Miscellaneous
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Section 6.1 Entire Agreement. This Agreement sets forth
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the entire agreement and understanding of the parties hereto
with respect to the transaction contemplated hereby and
supersedes any and all prior agreements and understandings
relating to the subject matter hereof. No representation,
promise or statement of intention has been made by any party
hereto which is not embodied in this Agreement or other
documents delivered pursuant hereto or in connection
with the transaction contemplated hereby, and no party hereto
shall be bound by or liable for any alleged representation,
promise or statement of intention not set forth herein or
therein.
Section 6.2 Amendment: Waiver. Except as otherwise
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expressly provided herein, this Agreement may be amended,
modified, superseded or cancelled, and any of the terms,
representations, warranties, covenants or conditions hereto
may be waived, only by a written instrument executed by the
parties hereto or, in the case of a waiver, by the party
hereto waiving compliance,
Section 6.3 Parties in Interest. All the terms,
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representations, warranties, covenants and conditions
contained in this Agreement shall be binding upon, and shall
inure to the benefit of and be enforceable by, the parties
hereto and their respective successors and assigns
Section 6.4 Governing Law. This Agreement shall be
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governed by and construed and enforced in accordance with
the laws of the State of California. Any action concerning,
relating to or involving this Agreement, or the other
agreements or instruments entered into or delivered
pursuant to this Agreement, shall be brought in by the
American Arbitration Association in Los Angeles California
and adjudicated in accordance with their rules in commercial
arbitration, and the parties hereby consent to the
jurisdiction and venue of such courts for such purpose
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Section 6.5 Captions. The article and section headings
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contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning of interpretation
of this Agreement.
Section 6.6. Counterparts. This Agreement maybe executed
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in any number of counterparts, each of which shall be deemed
to be an original instrument and all of which together shall
constitute a single agreement.
Section 6.7. Limitations on Rights of Third Parties.
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Nothing expressed or implied in this Agreement is intended or
shall be construed to confer upon or give any person, firm or
corporation other than the parties hereto any rights or remedies
under or by reason of this Agreement or any transaction
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
FILM & MUSIC ENTERTAINMENT, INC. WESTERN MEDIA GROUP CORPORATION
By:______________________________ By:_____________________________
_________________________________ ________________________________
Printed Name Printed Name
_________________________________ ________________________________
Title Title
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