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EXHIBIT 10.1
Execution Copy
Software Agreement
Between: Tribeworks, Inc., a California corporation ("Tribeworks"), with
offices located 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000;
And: Keepsake sprl, a Belgian corporation ("Keepsake") with offices
located at Avenue Xxxxxx Demolder 38 at 0000 Xxxxxxxx, Xxxxxxx;
And: Xx. Xxxxxxx Amar ("Amar"), residing at 0, xxx Xxxxxx xx 00000
Xxxxx, Xxxxxx.
Dated: November 2, 1999
Preamble
Tribeworks is engaged in developing software applications for web media
developers through the Internet.
Keepsake has extensive experience in development of multimedia publishing
software tools.
Keepsake has developed a software authoring tool distributed under the tradename
"iShell" (the "Software").
Amar has assisted Keepsake in development of the Software.
Tribeworks is commercializing the Software.
In consideration for the premises and covenants included herein, the parties
agree to enter into this Agreement.
Agreement
1. Keepsake is holder of all intellectual property rights, including copyrights
to the Software. The specifications to the Software are specified on Annex A.
The credits regarding the authors of the Software that are imbedded in the
source code shall remain unchanged.
2. Keepsake and Amar warrant to Tribeworks that they are authorized to enter
this Agreement. To the best of the knowledge of Amar and Keepsake, execution of
this Agreement by Keepsake and Amar will not conflict with any rights granted by
Keepsake or Amar in the Software to any third party .Keepsake and Amar further
represent that (i) the Software is proprietary to Keepsake and Amar, and (ii) to
the best of their knowledge, the Software does not infringe upon or conflict
with the intellectual property rights of any third parties in the Software.
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3. Keepsake and Amar hereby assign to Tribeworks all of their right, title and
interest to the Software (including without limitation the source code, the
tradename, and other related intellectual property rights). Tribeworks agrees to
pay Keepsake the consideration as specified in Annex B.
4. KEEPSAKE AND AMAR EXPRESSLY DISCLAIM ANY WARRANTIES WITH RESPECT TO THE
SOFTWARE EXCEPT THOSE SPECIFIED IN SECTION 2 ABOVE. THE SOFTWARE IS PROVIDED ON
AN "AS IS BASIS". ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE IS EXPRESSLY DISCLAIMED.
5. Unless there would be a breach of Section 2 above, Keepsake and Amar shall in
no event be liable for any damages (including without limitation, damages for
loss of business profits, business interruption, loss of business information,
or any other pecuniary loss) related directly or indirectly to the Software. In
the event that the provisions of preceding sentence set forth in this Section 5
shall be considered invalid under the laws of the applicable jurisdiction, or in
the event of breach by Keepsake and/or Amar of the provisions of Section 2
hereunder, the parties acknowledge that the total damages due and payable by
Keepsake and/or Amar hereunder shall not exceed twenty-five percent (25%) of the
total aggregate consideration paid by Tribeworks to Keepsake and Amar under this
Agreement.
6. Tribeworks undertakes on a "best effort basis" to commercialize and to
develop the worldwide notoriety of the Software. Tribeworks shall organize a
professional team to support the Software and to respond to any queries
regarding the Software by users.
7. Upon (i) institution by or against Tribeworks of any action for insolvency,
receivership or bankruptcy or any other proceedings for settlement of
Tribeworks' debts, or (ii) Tribeworks' making an assignment for the benefit of
creditors, or (iii) Tribeworks, dissolution or insolvency (the events specified
in clauses (i) through (iii) hereof being referred to herein as "Insolvency
Events"), Tribeworks will grant to Keepsake a royalty-free license to the
Software and any derivative works based on the Software. For purposes hereof,
term "Derivative Works" shall mean all work based on the Software such as a
revision, modification, translation, compilation, or any other form, including a
new work in which the Software may be recast, transformed or adapted (including
but not limited to error corrections or enhancements to the Software). In
connection with the foregoing, Tribeworks shall make available to Keepsake all
documentation relating to the Software or the Derivative Works upon occurrence
of an Insolvency Event.
8. Keepsake shall assist Tribeworks for a period of 12 months after execution of
this Agreement in development of the Software on a "best effort basis". The
relationships of Tribeworks and Keepsake shall be that of an independent
contractor for work performed by Keepsake for Tribeworks under this Section 8.
All work product developed by Keepsake for Tribeworks after the date hereof
under this Section 8 shall constitute the property of Tribeworks. The fees
payable by Tribeworks to Keepsake for this development work are specified in
Annex C. Tribeworks shall deliver to Keepsake such copies of the Software and
Derivative Works to enable Keepsake to perform its duties under this Agreement.
Any copies of the Software and Derivative Works
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delivered by Tribeworks to Keepsake for this purpose shall be used by Keepsake
for internal purpose only.
9. Commencing as of the effective date of this Agreement, Tribeworks will
perform all development with respect to the Software. Tribeworks' development
work will be headed by Amar.
10. Failure by either party to enforce any provision of this Agreement will not
be deemed a waiver of future enforcement of that or any other provision. This
Agreement is governed by and construed in accordance with the laws of Belgium.
In case of litigation, the courts having exclusive jurisdiction shall always be
the courts in which judicial area the registered office of the defendant is
located. This Agreement, including all annexes thereto, constitutes the entire
Agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior or contemporaneous understandings or
agreements, written or oral regarding such subject matter. Any amendment to this
Agreement should be made exclusively by written means.
IN WITNESS WHEREOF, that parties have executed this Agreement by their duly
authorized representative as of the date specified below.
TRIBEWORKS, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: CEO
KEEPSAKE SPRL
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Manager
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
Acknowledged:
PAN WORLD CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
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