EXHIBIT 10
TECHNOLOGY LICENSE AGREEMENT
This Agreement is entered into as of March 28, 2001
(the "Effective Date") by and between ATR Technology, LLC, a
limited liability company of the state of Nevada and having
its principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx ("ATR") and Sarcor Management, S.A. a
British Virgin Islands (BVI) corporation having its
principal place of business at Xxxxx Xxxxx, Xxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxx NW22AQ("Sarcor").
WHEREAS, Sarcor is in the business of developing,
using, and licensing others to use and is the owner of, or
has the relevant licenses to use, certain human resource
compiler based search recognition software and hardware
("Sarcor Technology"); and
WHEREAS, ATR is in the business of technology,
consulting, and recruitment solutions and personnel and
services ("ATR Products"); and
WHEREAS, ATR desires to license the Sarcor
Technology for use in conjunction with the ATR Products;
NOW THEREFORE, for good and valuable consideration
and on the promises and premises set forth below, the
parties agree as follows:
1. DEFINITIONS.
1.1 CONFIDENTIAL INFORMATION:
a. SARCOR CONFIDENTIAL INFORMATION: Confidential
and/or proprietary information relating to
the Search Technology, research, development,
products, processes, trade secrets, business
plans, customers, finances, and personnel
data related to the business of Sarcor.
Sarcor Confidential Information does not
include any information (i) which ATR knew
before Sarcor disclosed it to ATR; (ii) which
has become publicly known through no wrongful
act of ATR; (iii) which ATR developed
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independently, as evidenced by appropriate
documentation; (iv) which is disclosed to ATR
by a third party without restriction of
confidentiality; or (v) the disclosure of
which is required by law.
b. ATR CONFIDENTIAL INFORMATION: Confidential
and/or proprietary information relating to the research,
development, products, processes, trade secrets, business
plans, customers, finances, and personnel data related to
the business of ATR. ATR Confidential Information does not
include any information (i) which Sarcor knew before ATR
disclosed it to Sarcor; (ii) which has become publicly known
through no wrongful act of Sarcor; (iii) which Sarcor
developed independently, as evidenced by appropriate
documentation; (iv) which is disclosed to Sarcor by a third
party without restriction of confidentiality; or (v) the
disclosure of which is required by law.
1.2 DERIVATIVES: Any or all translation (including
translation into other human or computer languages),
portation, modification, correction, addition, extension,
upgrade, update, enhancement, revision, new version,
improvement, compilation, abridgement, or other form in
which the Intellectual Property Rights may be recast,
transformed, or adapted, including any products, systems or
other items which provide comparable or enhanced
functionality whether or not specifically based on or
derived from such Intellectual Property
Rights.
1.3 SARCOR DOCUMENTATION: Any and all manuals, user
guides, product specifications and other documentation,
owned by or licensed to Sarcor, relating or referring to the
Sarcor Technology.
1.4 SARCOR RIGHTS: Any and all Intellectual Property
Rights and Derivatives, of Sarcor in and to the Sarcor
Copyrights, Sarcor Documentation, Sarcor Marks, Sarcor
Patents, Sarcor Technology and/or the Project Work Product.
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1.5 SARCOR TECHNOLOGY: Sarcor's proprietary search
recognition software as set forth in Exhibits A and B hereto
including, but not limited to, all English and foreign
language, all commercial and non-commercial, and all present
and future versions thereof, and all required and/or
relevant Sarcor Documentation, Intellectual Property Rights
and other proprietary rights therein, and Derivatives
thereof that is required and/or relevant to ATR's
development of current and future versions of ATR Products.
1.6 FIELDS OF USE (FOU): ALL MARKETS AND
INDUSTRIES, AS FOLLOWS:
The license contained herein is an EXCLUSIVE FIELDS
OF USE for a period of ten (10) years and is non-cancelable.
This license grants ATR the exclusive worldwide rights to
the technology and the further rights to sublicense on a non-
exclusive basis.
1.7 INTELLECTUAL PROPERTY RIGHTS: Any and all
proprietary, common law, and/or statutory intellectual
property rights, including but not limited to, patentable
materials and patent rights, copyrightable materials and
copyrights, moral rights, trade secret rights, trademark
rights, service xxxx rights, and/or any and all other
proprietary rights, including all Derivatives.
1.8 ATR CLIENT: An end user customer of ATR in the FOU
and Territory.
1.9 ATR DISTRIBUTOR: Authorized third party
distributors licensed by ATR to distribute the ATR Products
to ATR Clients.
1.10 ATR PRODUCTS: Any and all search recognition
products and services that use, integrate, or contain search
recognition capabilities, made, distributed, and/or sold by
ATR to one or more professional user market segments.
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1.11 ATR RIGHTS: Any and all Confidential Information
and Intellectual Property Rights of ATR in and to the ATR
Products, exclusive of the Sarcor
Rights.
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1.12 COMPILER ENGINE: The component of the Sarcor
Technology that is the core search recognition engine.
1.13 TERRITORY:
a. EXCLUSIVE FOU: North America (United States
and its
Territories and Canada) in American English
b. EXCLUSIVE FOU: Worldwide
2. GRANT BY SARCOR.
Subject to the terms and conditions set forth in
this Agreement, SARCOR hereby grants to ATR during the Term
and in the Territory, and ATR hereby
accepts:
a. EXCLUSIVE LICENSE - An exclusive, non-
transferable, non-cancelable (except as provided in Section
13.1) license to use the Sarcor Technology in the Exclusive
FOU. During the term of this Agreement, Sarcor will not use,
or authorize, license or permit any person other than ATR to
use the Sarcor Technology to develop or offer any language
models or other products or services in the Exclusive FOU.
b. END-USER LICENSE - A non-exclusive, non-
transferable license to market and grant End User licenses
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of the Sarcor Distributable Technology, provided ATR
presents or causes to be presented to each End User an End
User License Agreement containing substantially the same
terms and conditions as contained in the License Agreement
shown in Exhibit C hereto.
Upon Sarcor's request, ATR shall provide a
copy of ATR's standard End User License Agreement. ATR
agrees to comply with all reporting and record keeping
requirements set forth herein.
c. DISTRIBUTOR LICENSE - The right to appoint
ATR Distributors to market and grant sub licenses of the
Sarcor Distributable Technology under terms of this
Agreement. ATR shall ensure hat each ATR Distributor
executes a written agreement with ATR binding Distributors
to provisions substantially similar to those contained in
the pertinent sections of this Agreement. ATR agrees to
comply with all reporting and record keeping requirements
set forth herein.
3. LIMITATIONS ON ATR. The foregoing license grants are
expressly conditioned upon ATR's compliance with the
following requirements:
3.1 ATR acknowledges that the Sarcor Rights and
Sarcor Confidential Information are proprietary to Sarcor
and/or its licensor(s) and that Sarcor and/or its licensor
(s) retains all right, title, and interest therein and
thereto, including without limitation all Intellectual
Property Rights therein and therefor, and that ATR has no
rights therein other than as set forth in this Agreement.
3.2 Other than as expressly set forth in this
Agreement, ATR agrees not to:
a. reproduce, sublicense, distribute or
dispose of the Sarcor Rights;
b. alter, create derivative works of, edit,
modify, or revise the Sarcor Rights;
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c. reverse engineer, reverse compile, or
disassemble the Sarcor Rights, in whole or in part, except
as expressly permitted by this Agreement or pursuant to
applicable law.
3.3 On all copies of the Sarcor Rights made by ATR
pursuant to this Agreement, ATR agrees that it shall (i) not
remove any copyright notices, trademarks, or other
proprietary legends contained therein or thereon, as
provided by Sarcor, and (ii) include any copyright notices,
trademarks, or other proprietary legends contained within
the Sarcor Technology, as provided by Sarcor.
3.4 ATR warrants and represents that it does not
intend to, nor will, directly or indirectly, export or
transmit the Sarcor Technology, in whole or in part, or any
Sarcor Confidential Information or technical data relating
thereto, to any country to which such export or transmission
is restricted by any applicable U.S. regulation or statute,
without prior written consent, if required, of the Bureau of
Export Administration of the U.S. Department of Commerce, or
other such governmental entity as may have jurisdiction over
such export or transmission.
Use, duplication, or disclosure by the United States
Government of the Sarcor Technology is subject to
restrictions as set forth in The Rights in Technical Data
and Computer Software clause at
DFARS 252.227-7013 or of the Commercial Computer Software -
Restricted Rights clause at 48 C.F.R. 52.227-19 as
applicable.
3.6 ATR agrees not to in any way misrepresent, or to
mislead (especially with respect to prospective customers,
journalists, or market analysts, etc.) about ATR's
relationship with SARCOR, ATR's duties as specified in this
Agreement, the features of Sarcor's products including any
technical specifications, expected benefits of use, and the
origin of Sarcor's products. In particular, ATR shall not
represent itself as an exclusive agent or exclusive
distributor of Sarcor's products, except as indicated in
this Agreement. ATR shall not represent itself as the
developer or manufacturer of Sarcor's products, or as SARCOR
itself.
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3.7 Prior to the first commercial shipment from ATR
to any End User, of an ATR Product incorporating the
Compiler Engine, ATR must submit a finished version of such
ATR Product, along with the accompanying documentation, to
SARCOR for testing to insure satisfactory operation and
receive from SARCOR a written notice of approval. SARCOR
shall examine and test a finished version of each ATR
Product that incorporates the Compiler Engine, and provide
such notice of approval or a statement of defects as quickly
as possible but no later than 30-days from receipt. ATR
shall not be required to correct any such defects other than
those defects that are such as to cause material harm to
Sarcor if included in the software distributed by ATR
("Major Defects"). In the event Sarcor does not give a
statement identifying such Major Defects within such 30-day
period, the software shall be deemed approved for all
purposes hereof. In the event SARCOR notifies ATR in writing
of Major Defects, ATR must correct such Major Defects and
return a newly finished version of the ATR Product for
retesting, and SARCOR shall within 30 days of such
redelivery provide ATR with written notice of approval or a
statement of Major Defects. Sarcor's acceptance of a
finished version of ATR Product shall not be unreasonably
withheld, and approval shall be deemed to have been given if
in any case Sarcor does not deliver notice of Major Defects
within 30 days following delivery of a version of the
software. The above procedure may, at Sarcor's option, be
repeated until a final version of
each ATR Product is approved.
4.0 OBLIGATIONS OF THE PARTIES.
4.1 SARCOR OBLIGATIONS. During the Term of this
Agreement, Sarcor agrees to:
a. Provide relevant Sarcor Technology to ATR in
accordance with the terms and conditions of this Agreement;
b. Provide ATR Key Personnel with access to the
relevant Sarcor Technology, including participation in
Sarcor's first beta testing of relevant Sarcor Technology,
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whether or not such testing is made available to other
Sarcor licensees;
c. Provide sufficient and appropriate training to
ATR personnel to enable ATR to understand the
developing Sarcor Technology.
d. Provide upgrades on the software on as needed
basis, but not less than three times during the term
of this license.
4.2 ATR OBLIGATIONS. During the Term of this
Agreement ATR agrees to:
a. Provide Sarcor with appropriate marketing
and promotional assistance in the FOU in the manner and
methods to be mutually agreed between the parties in
writing.
5.0 CONFIDENTIALITY.
a. Each party agrees not to disclose any
Confidential Information of the other party and to maintain
such Confidential Information in strictest confidence, to
take all reasonable precautions to prevent its unauthorized
dissemination and to refrain from sharing any or all of the
information with any third party for any reason whatsoever
except as required by court order, both during and after the
termination of this Agreement. Without limiting the scope of
this duty, each party agrees to limit its internal
distribution of the Confidential Information of the other
party only on a "need to know" basis and solely in
connection with the performance of this Agreement, and to
take steps to ensure that the dissemination is so limited.
b. Each party agrees not to use the
Confidential Information of the other party for its own
benefit or for the benefit of anyone other than the
providing party, or other than in accordance with the terms
and conditions of this Agreement.
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c. All ATR Confidential Information remains
the property of ATR and all Sarcor Confidential Information
remains the property of Sarcor, and other than as expressly
provided by this Agreement.
d. Upon written request of the providing
party, or upon the expiration or other termination of this
Agreement for any reason whatsoever, the receiving party
agrees to return to the providing party all such provided
Confidential Information, including but not limited to all
copies thereof.
f. The provisions of this Section shall
survive the expiration or other termination of this
Agreement.
6.0 OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS, AND NON-
DISCLOSURE.
6.1 SARCOR RIGHTS:
a. SARCOR shall retain all rights, title and
interest (including all intellectual property rights)
of the Sarcor Technology and Sarcor Documentation and
any derivative works of the Sarcor Documentation, and
any copies thereof.
b. ATR shall not alter or remove any
copyright, trade secret, patent, proprietary and/or other
legal notices contained on or in copies of the Sarcor
Technology and Sarcor Documentation. ATR shall reproduce and
include any SARCOR trademark, copyright, trade secret or
proprietary information notices and other legends on every
copy, in whole or in part, of the Sarcor Technology in any
form. ATR shall not decompile, disassemble or otherwise
reverse engineer the Sarcor Technology, except as SARCOR is
required to allow ATR to do under applicable law.
c. ATR shall render to SARCOR commercially
reasonable assistance in connection with Sarcor's
enforcement of its rights in and to the Sarcor Technology
and Sarcor Documentation, including without limitation using
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efforts to prevent End Users from copying or using the
Sarcor Technology and Sarcor Documentation outside the scope
of this Agreement, or the End User License Agreement.
d. Certain data or portions thereof, which may
be supplied by Sarcor relating to the Sarcor Technology, are
confidential and proprietary to Sarcor and will be so
marked. ATR shall abide its obligations under Section 5.0 as
applicable to such data.
6.2 ATR: ATR is, and as to Sarcor, shall be, the
owner of all worldwide right, title and interest, including
any and all Intellectual Property Rights, in and to the ATR
Confidential Information and the ATR Rights.
7.0 TERM.
The license granted under this Agreement shall
commence on the
Effective Date set forth above and terminate at the
expiration of ten years from such effective date. The
license is non-cancelable by either party.
8.0 PAYMENTS.
8.1 Upon the execution of this license ATR shall
cause to be issued 3,500,000 shares of stock of the parent
of ATR Technology, ATR Search Corporation ("ATR Corp.") All
shares to be duly authorized, validly issued, fully paid and
non-assessable. During the Term of this Agreement, ATR
shall make monthly payments to Sarcor aggregating
$1,976,400.00USD, payable monthly pursuant to the attached
Schedule C.
The license fees and all other amounts payable pursuant to
this Agreement are exclusive of all federal, state, local,
municipal or other excise, sales, use, property or similar
taxes and fees, now in force or enacted in the future, and
all such taxes and fees shall be paid by ATR. ATR shall
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obtain and provide to SARCOR any certificate of exemption or
similar document required to exempt any transaction under
this Agreement from sales tax, use tax or other tax
liability.
8.2 Purchase Option.
a. Upon the completion of the ten (10) year lease, ATR
shall have the right, at its sole option, to acquire
all right, title and interest to the Sarcor technology
and software for a cash payment of $1,000.00, provided
that ATR has paid all outstanding license fees and has
not materially breached the license and is not currently
in default of any provisions contained therein.
b. During the first three (3) years of the License
Agreement, ATR shall possess the right, at its sole option
to acquire the software and technology for $1,150,000.
9.0 SARCOR REPRESENTATIONS AND WARRANTIES.
Sarcor represents and warrants to ATR, during the
Term and in the Territory, as follows:
a. OWNERSHIP. Sarcor is the owner, or has the
right to enter into this Agreement on behalf of the owner,
of all worldwide right, title and interest in and to any and
all Sarcor Confidential Information and the Sarcor Rights.
Sarcor will obtain in writing, prior to delivery to ATR of
any Sarcor Confidential Information or Sarcor Rights, any
and worldwide assignments, licenses, permissions, or other
consents of all third party Intellectual Property Rights
and/or other third party proprietary rights as are or shall
be necessary to enable Sarcor to fulfill its obligations to
ATR hereunder, and to enable ATR to utilize the Sarcor
Rights for their intended purpose. Sarcor shall immediately
notify ATR in writing of any limitations on use required by
the proprietor of such third party materials, and Sarcor
shall not agree to any such demands or requirements without
the prior written approval of ATR.
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b. NON-INFRINGEMENT. To the best of Sarcor's
knowledge the Sarcor Rights do not infringe any existing
patent, copyright, trademark, service xxxx, trade name,
trade secret, patent, or other Intellectual Property Right
of any third person, firm, corporation or other entity.
c. NO BUGS. Sarcor agrees that prior to
submission to ATR, the Sarcor Rights in the form of
prerecorded media will be tested by Sarcor and confirmed to
the best of Sarcor's knowledge, to be free of any known
viruses and/or known bugs.
d. NO ENCUMBRANCES. To the best of Sarcor's
knowledge, the Sarcor Rights shall be free and clear of any
and all encumbrances and/or liens of any nature whatsoever,
other than those identified by Sarcor pursuant to this
Agreement, and other than non-exclusive licenses granted by
Sarcor to others to use the Sarcor Rights.
e. NO CONFLICTS. To the best of Sarcor's
knowledge, Sarcor's performance of this Agreement does not
conflict with any other Agreement to which Sarcor is bound
and, while performing this Agreement, Sarcor will not
knowingly enter into any other Agreement in conflict with
this Agreement or which would impair the ability of Sarcor
to perform this Agreement.
f. YEAR 2000 COMPLIANCE. Sarcor warrants
and/or represents to ATR as follows:
SARCOR warrants that the Sarcor Technology,
as provided by SARCOR, is capable of processing, recording,
storing and presenting data containing four-digit years in
substantially the same manner and with substantially the
same functionality as it performed before January 1, 2000.
However, SARCOR assumes no responsibilities or obligations
to cause third-party products or services to function with
the Sarcor Technology. In addition, SARCOR will not be in
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any breach of this warranty for any failure of the Sarcor
Technology to correctly create or process date-related data
if such failure results form the inability of any software,
hardware, or systems of a customer or any third party either
to correctly create or process such date-related data or to
create or process such date-related data in a manner
consistent with the method in which the Sarcor Technology
creates or process date-related data. In the event of a
breach of this warranty, SARCOR shall use its commercially
reasonable efforts to correct or provide a work around for
reproducible errors that cause breach of this warranty, or
if SARCOR is unable to make the Sarcor Technology operate as
warranted herein within a reasonable period of time, the
customer shall be entitled to recover the fees paid for the
license of the Sarcor Technology.
10.0 INDEMNIFICATION.
10.1 BY SARCOR. SARCOR will defend ATR against a
claim that an ATR Product supplied hereunder infringes a
U.S. patent or copyright, or other proprietary right of a
third party, and SARCOR will indemnify ATR and hold it
harmless from and against any loss, liability and any costs,
expenses and reasonable attorneys' fees finally awarded. ATR
shall prompt notify SARCOR in writing of the claim, and
SARCOR shall have sole control of the defense and all
related settlement negotiations, and ATR shall provide
SARCOR complete information concerning the claim but any
failure to provide prompt notice or information shall not
impair ATR's rights to indemnification hereunder except to
the extent that such failure has materially prejudiced or
materially delayed SARCOR in defense of its claim. SARCOR
shall have the right to assume the defense of any claim
against ATR in connection with such violation or
infringement. After notice from SARCOR to ATR of election to
assume the defense thereof, SARCOR will not be liable to ATR
for any legal or other expenses subsequently incurred by ATR
in connection with the defense thereof other than reasonable
costs of investigation, unless incurred at the written
request of SARCOR, in which event such legal or other
expenses shall be borne by SARCOR. ATR shall, however, have
the right to participate in the defense and settlement of
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such claim being defended by Sarcor through separate counsel
at ATR's expense. ATR shall not be subject to any liability
or restriction under any settlement entered into by SARCOR
without ATR's prior written approval.
a. SARCOR shall have no obligation to ATR
under this Section if any claimed infringement is based
upon: (i) use of any Sarcor Technology delivered hereunder
in connection or in combination with equipment, software or
devices not supplied by SARCOR;
(ii) ATR's use of a Sarcor Technology in the
practicing of any process or in a manner for which the
Sarcor Technology was not designed; or (iii) Sarcor's
compliance with ATR's designs, specifications or
instructions. ATR shall indemnify and hold SARCOR harmless
from and against any loss, cost or expense suffered or
incurred in connection with any suit, claim or proceeding
brought against SARCOR so far as it is based on a claim that
the manufacture or sale of any Sarcor Technology delivered
hereunder which has been either (1) modified, altered or
combined with any product, software, or device not supplied
by SARCOR or (2) modified by SARCOR in accordance with ATR's
designs, specifications or instructions, constitutes such an
infringement because of any such modification, alteration or
combination.
The foregoing states Sarcor's entire liability for
infringement by Sarcor Technology furnished under this
Agreement
b. EXCEPT AS STATED ABOVE, SARCOR DISCLAIMS
ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO
THE SARCOR TECHNOLOGY, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SARCOR SHALL IN NO EVENT SHALL SARCOR BE
LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, PROFITS
OR USE OF EQUIPMENT, OR FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH
THE USE OR PERFORMANCE OF THE SARCOR TECHNOLOGY.
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c. IT IS ALSO UNDERSTOOD BY BOTH PARTIES TO
THIS AGREEMENT THAT SEARCH RECOGNITION IS INHERENTLY A
STATISTICAL PROCESS; THAT SEARCH RECOGNITION ERRORS ARE
INHERENT IN THE PROCESS OF SEARCH RECOGNITION; THAT SEARCH
RECOGNITION APPLICATIONS AND USAGE MUST BE DESIGNED TO ALLOW
FOR SUCH ERRORS IN THE SPEECH RECOGNITION PROCESS; AND THAT
IT IS ATR'S RESPONSIBILITY THAT ALL ITS SUBLICENSEES
UNDERSTAND THAT SUCH ERRORS ARE INEVITABLE AND THAT IT IS
THE RESPONSIBILITY OF THE APPLICATION DEVELOPER TO PROVIDE
FOR HANDLING SUCH ERRORS AND OF THE USER TO MONITOR THE
SEARCH RECOGNITION PROCESS AND CORRECT ANY ERRORS. SARCOR
SHALL IN NO EVENT BE LIABLE FOR ANYDIRECT OR INDIRECT
DAMAGES, INCLUDING PERSONAL INJURY, RESULTING FROM ERRORS IN
THE RECOGNITION PROCESS.
10.2 BY ATR. ATR agrees to indemnify and hold
harmless Sarcor, its officers, agents, and employees from
and against all liability, loss, cost, damages, claims or
expenses (including reasonable attorneys fees) arising out
of any claims or suits, whatever their nature and however
arising, which may be brought or made against Sarcor by
reason or arising from (i) any material breach this
Agreement by ATR or (ii) any allegation of third party
intellectual property right(s) infringement or unfair
competition, where such claim or suit is based upon the
combination, operation, modification, or use of the Sarcor
Rights, if such claim of infringement would have been
avoided but for such combination, operation, modification,
or use. ATR shall have sole control over the selection of
counsel and the defense of any claim or any settlement
thereof, at ATR's expense. Sarcor shall provide ATR with its
reasonable assistance in the defense of such claim, at the
expense of ATR. In no event may ATR enter into any third
party settlement agreements which would in any manner
whatsoever affect the right of, or bind, Sarcor in any
manner to said third party, without the prior written
consent of Sarcor.
10.3 NOTIFICATION. The party seeking indemnification
under this Section shall immediately notify the other party,
in writing, of any claim or proceeding brought against it
for which it seeks indemnification hereunder.
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IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES
OF ANY NATURE WHATSOEVER, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4 INSURANCE. Each party will carry appropriate
and sufficient policies of insurance, which must comply with
all statutory regulations in the state (or country) where
this Agreement is being performed, which shall be in effect
at least as early as the Effective Date of this Agreement
and which shall remain in force and provide coverage
throughout the Territory until the effective date of
Termination. Each party shall be solely responsible for the
payment of all deductibles on its own policies. Such
policies of insurance shall include, but are not limited to,
the following: (i) Workers' Compensation and State
Disability, including Employers' Liability, (ii)
Comprehensive General Liability, (iii) Umbrella Liability,
and (iv) Auto Liability. Prior to the Effective Date of this
Agreement, each party will deliver to the other a
certificate of insurance or other documentary proof that
each party has obtained the required insurance policies
pursuant to this Agreement.
10.5 The provisions of this Section shall survive
the expiration or other termination of this Agreement.
11.0 TERMINATION.
11.1 FOR CAUSE: Without prejudice to any rights
which it may have under this Agreement or in law, equity, or
otherwise:
a. Either party shall have the right to
terminate this Agreement if the other party defaults in the
performance of any of its obligations or breaches any term,
provision, warranty, or representation under this Agreement
("Defaults"). Upon the occurrence of any of the foregoing
Defaults, the non-Defaulting party shall give notice of
termination of this Agreement in writing to the Defaulting
party, who shall have Thirty (30) days from the date of
notice in which to correct any Default, or if not wholly
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curable within said thirty days, to use its best efforts to
commence any and all steps reasonably necessary to cure such
Default. If the Defaulting party fails to correct the
Default or to commence any and all steps reasonably
necessary to cure such Default within the notice period,
this Agreement shall terminate on the last day of such
notice period unless otherwise agreed to in writing signed
by both parties.
b. This Agreement shall terminate
automatically and without further notice to the other party
in the event that ATR shall make any unauthorized assignment
for the benefit of creditors, file any petition under the
bankruptcy or insolvency laws of any jurisdiction, have or
suffer a receiver or trustee to be appointed for its
business or property, or be adjudicated a bankrupt or an
insolvent.
11.2 EFFECT OF TERMINATION FOR DEFAULT OF EITHER
PARTY.
Upon expiration or termination of this Agreement for
the Default of either party, or for any reason (including
expiration under Section 7.0) other than the insolvency,
bankruptcy, reorganization of Sarcor or its authorized
successors or assigns, or the termination, cessation, or
inability or failure to maintain the Sarcor Technology or
that portion of the business associated with the Sarcor
Technology during the Term of the Agreement, by Sarcor or
its authorized successors or assigns:
a. ATR shall, within five (5) business days
thereof, return or, at Sarcor's option, destroy all whole or
partial copies of the Sarcor Rights in ATR's possession,
custody or control, and certify to Sarcor in writing within
five (5) business days thereafter that it has complied with
the foregoing obligation;
b. Each party shall return all copies of
Confidential Information disclosed by the other party, which
remain in its possession or under its control;
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c. Termination shall not affect the rights of
ATR Clients and ATR Distributors to continue to use the
Sarcor Technology acquired from ATR in accordance with the
terms of this Agreement;
d. Termination shall not affect ATR's
obligation to pay to Sarcor all amounts due pursuant to the
license as of the effective date of Termination and shall
not affect Sarcor's obligation to refund to ATR any amounts
paid by ATR attributable to any period of time after the
effective date of termination; and,
e. Except in the case of termination of this
Agreement for the Default of ATR, ATR shall have the
continued right to exercise the rights and licenses granted
in Section 2 in connection with the Sarcor Technology as in
existence as of the date of expiration or termination (and
not including any subsequent improvements or Derivatives
thereof), subject to the continued payment of license fees
under Section 8.0 with respect to any distribution of the
Compiler Engine, if any, by ATR after such expiration or
termination, and provided that ATR's rights under Section
2.a shall no longer be exclusive.
11.3 EFFECT OF TERMINATION FOR SARCOR
INSOLVENCY, ETC.
In addition to requirements and dispositions set
forth in preceding paragraph 11.2, upon termination of this
Agreement for the (i) insolvency, bankruptcy, reorganization
of Sarcor or its authorized successors or assigns, (ii)
insolvency, bankruptcy, reorganization of Sarcor or its
authorized successors or assigns, including the transfer (by
cash, credit, or stock purchase) of all or a majority of
either Sarcor's total assets or that portion of Sarcor's
business attributable to the Sarcor Technology to a third
party, or (iii) the termination, cessation, or inability or
failure to maintain the Sarcor Technology or that portion of
the business associated with the Sarcor Technology, during
the Term of the Agreement, by Sarcor or its authorized
successors or assigns, then all of the rights granted by
Sarcor to ATR hereunder shall immediately and automatically
convert into worldwide, fully paid up, fully transferable,
perpetual licenses.
/18/
12.0 ESCROW.
Within thirty (30) days of the effective date of
this Agreement, source code for the Sarcor Technology
Licensed by ATR pursuant to this Agreement will be placed in
escrow, under the conditions set forth below, with an escrow
agent mutually agreed to by the parties.
1. The cost of maintaining the escrow shall be borne
by ATR.
2. The source code shall not be released to ATR
unless or until Sarcor ceases to continue its business or
upon the failure of Sarcor to perform obligations it may
have to maintain the Sarcor Technology in question.
3. The use of the source code, if released to ATR,
is subject to the terms and conditions governing the use of
the object code as set forth in this Agreement with the
additional restrictions that the source code is not
authorized to be sub-licensed and that it shall not be
provided to or disclosed to third parties.
4. The release of the source code to ATR shall be
solely for the purpose of assisting ATR in the use,
maintenance, modification, or updating of the object code
and in no way shall impair Sarcor's ownership of the Sarcor
Technology or the rights of Sarcor's creditors, assigns, or
successors in interest.
5. THE SOURCE CODE SHALL BE PROVIDED ON AN "AS IS"
BASIS WITH WHATEVER SUPPORT SERVICES MAY BE AVAILABLE AND
WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR FREEDOM FROM INFRINGEMENT OF PATENTS
OR COPYRIGHTS.
13.0 ASSIGNMENT.
/19/
13.1 Either party may assign its rights, duties
and/or obligations under this Agreement in connection with
the transfer (by merger or by sale of assets or stock) of
all or a majority of either its total assets or that portion
of its business attributable to the Sarcor Technology (in
the case of Sarcor) or the ATR Products (in the case of ATR)
to a third party, provided that any such assignment is made
expressly subject to the terms and conditions of this
Agreement, and the assignee agrees in writing to be bound by
the terms and conditions hereof.
13.2 Except as otherwise provided by this Agreement,
neither party may assign its rights, duties and obligations
under this Agreement, without the prior written consent of
the other party, and further provided that any such
assignment is made expressly subject to the terms and
conditions of this Agreement, and the assignee agrees in
writing to be bound by the terms and conditions hereof.
14.0 GOVERNING LAW AND JURISDICTION.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without
reference to its conflicts of laws principles. Any lawsuit
relating to any matter arising under, or related to this
Agreement, initiated by or on behalf of ATR against SARCOR,
its employees, ex-employees, officers, agents, or affiliates
shall be initiated in the appropriate state or Federal Court
serving New York County in the State of New York.
SARCOR and ATR may not institute any action in any
form arising out of or in any way connected with this
Agreement more than eighteen (18) months after the cause of
action has arisen, or in the case of nonpayment, more than
eighteen (18) months from the date of last payment or
promise to pay, except that this limitation does not apply
to an action for payment of taxes.
15.0 WAIVER, AMENDMENT, OR MODIFICATION.
Any waiver, amendment or modification of this
Agreement shall not be effective unless made in writing and
signed by both parties. No failure or delay by either party
/20/
in exercising any right, power or remedy with respect to any
of its rights hereunder shall operate as a waiver thereof in
the future.
16.0 NO PARTNERSHIP.
This Agreement does not constitute and shall not be
construed as constituting a partnership or joint venture
between ATR and Sarcor. Neither party shall have any right
to obligate or bind the other party in any manner
whatsoever, and noting herein contained shall give, or is
intended to give, any rights of any kind to any third
persons.
Any commitment made by ATR to its customers with
respect to quantities, delivery, modifications, interfacing
capability, suitability of software, or suitability in
specific applications will be ATR's sole responsibility. ATR
has no authority to modify the warranties contained in this
Agreement or to make any other commitment on behalf of
SARCOR, and ATR will indemnify and defend SARCOR from any
liability, suit or proceeding for any such modified warranty
or other commitment by ATR.
ATR has the right to determine its own resale
prices, and no SARCOR representative will require that any
particular price be charged by ATR or grant or withhold any
treatment to ATR based on ATR's pricing policies. ATR agrees
that it will promptly report directly to a SARCOR officer
any effort by SARCOR personnel to interfere with its pricing
policies.
17.0 NOTICES.
All notices required under this Agreement will be in
writing, will reference this Agreement, and will be deemed
given: (i) when delivered personally; (ii) when sent by
confirmed electronic mail 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 for
/21/
one day overnight service, with written verification of
receipt. All communications will be sent to the names and
addresses set forth beneath the signature of each party to
this Agreement.
18.0 FORCE MAJEURE.
Neither party will be deemed in default or breach of
this Agreement to the extent that performance of its
obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, natural
disaster, accident, act of government, or an act that is
beyond the reasonable control of either party, provided that
such party gives the other party written notice thereof
promptly and, in any event, within fifteen (15) days of
discovery thereof and uses its best efforts to continue to
so perform or cure. In the event of such a Force Majeure,
the time for performance or cure will be extended
for a period equal to the duration of the Force Majeure.
19.0 REMEDIES AND ATTORNEYS FEES.
19.1 1NJUNCTION. The parties recognize and
acknowledge that a breach by one party of any of its
covenants, agreements or undertakings hereunder with respect
to the Confidential Information or Intellectual Property
Rights of the other party will cause the non-breaching party
irreparable damage, which cannot be readily remedied in
monetary damages in an action at law. In the event of any
default or breach by one party which could result in
irreparable harm to the non-breaching party, or cause some
loss or dilution of the good will, reputation or business of
the non-breaching party, the non-breaching party shall be
entitled to an immediate injunction in addition to any other
remedies available, to stop or prevent such irreparable
harm, loss or dilution.
19.2 ATTORNEYS FEES. In the event that either SARCOR
or ATR brings suit against the other party for any matter
arising out of or in connection with this Agreement, and the
party which is sued is ultimately adjudicated to not have
liability, then the party bringing suit agrees to pay the
other party's reasonable attorneys' fees and litigation
costs.
/22/
20.0 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof.
The failure of either party to require performance of any
provision of this Agreement shall not be, construed as a
waiver of its rights to insist on performance of that same
provision, or any other provision, at some other time. Any
waiver, variation or amendment, or modification, of any term
or condition of this Agreement shall be effective only if
signed by an authorized representative of both parties
hereto. The waiver by either party of any right created by
this Agreement in one or more instances
shall not be construed as a further continuing waiver of
such right or any other right created by this Agreement. If
any provision of this Agreement is found by a court of
competent jurisdiction to be unenforceable for any reason,
the remainder of this Agreement shall continue in full force
and effect.
AGREED TO AND ENTERED INTO BY AND BETWEEN THE PARTIES AS OF
THE EFFECTIVE DATE SET FORTH ABOVE.
SARCOR Management, S.A.
\s\ Xxxxxxx Xxxxxxx
---------------------
Print Name: Xxxxxxx Xxxxxxx
-----------------
Print Title: Vice President
-----------------
Date: 03/28/01
-----------------
ATR Technology, LLC
\s\ Xxxxxx Xxx
-----------------
Print Name: Xxxxxx Xxx
-----------------
Print Title: President
-----------------
Date: 03/28/01
-----------------
/23/
NOTICES TO SARCOR SHOULD BE SENT TO:
Sarcor Management, S.A.
NOTICES TO ATR SHOULD BE SENT TO:
ATR Technology, LLC
00 Xxxx 00xx. Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
/24/
Schedule A
I Purpose:
The software provides an optimal means of locating and
matching qualified candidates to any given job requisition.
II Benefits Obtained:
1. Human Resource departments will receive only those
resumes of candidates that meet their specific requirements.
2. Job candidates can quickly locate the most recent job
requisitions that demand their possessed skills.
3. Corporate websites will be highly targeted by
standardizing its segmentation model (Job Categories, Job
Titles, Industry Vertical Markets, salary and compensation
data) on standard data.
4.Corporate resume and recruiting databases will keep pace
with industry changes by standardizing there own data
through the systems ability to learn new concepts by
artificial intelligence.
III Approach to be Used:
1. Utilize any industries data to define all job
categories, job titles, and vertical markets exploited by
that particular industry.
2. For each job title, define the current skills that
relate to or are in demand for the specific job. This
information allows candidates to be defined in terms of the
tangible assets they possess and jobs to be defined in terms
of the skills that are required.
3. The system will provide a fast and intuitive mechanism
for applicants to select the skills that their job
experiences have provided. This information will be stored
in an applicant's profile.
4. The system will provide a fast and intuitive mechanism
for clients to designate the skills required for any given
job posting. This information will be stored in a job's
profile.
/25/
5. The system will provide an efficient means for
applicants to quickly locate jobs that match their skills.
6.The system will provide an efficient means for clients to
quickly locate qualified applicants for any or all of
their job positions. This can be performed manually by
having the client doing a standard text search, or
automatically utilizing a Natural Language Compiler where
a company may choose to have the system select the most
qualified candidates as they arrive in the system.
/26/
Schedule B
Diagrams submitted to Securities and Exchange Commission in
hardcopy format (pages 27 through 32).
Schedule C
ATR SEARCH (Lease Payments to Sarcor Management, S.A.)
Cost 1,500,000.00 Residual
------------
Deposit 350,000.00 Purchase Price $ 1,000.00
------------ --------------
Purchase option 1,150,000.00
------------
During first three years Total monthly Payments $ 1,976,400.00
--------------
5/1/01 1 -
6/1/01 2 -
7/1/01 3 -
8/1/01 4 5,000.00
9/1/01 5 5,000.00
10/1/01 6 5,000.00
11/1/01 7 5,000.00
12/1/01 8 5,000.00
1/1/02 9 5,000.00
2/1/02 10 5,000.00
3/1/02 11 5,000.00
4/1/02 12 5,000.00
---------
45,000.00
---------
5/1/02 13 10,000.00
6/1/02 14 10,000.00
7/1/02 15 10,000.00
8/1/02 16 10,000.00
9/1/02 17 10,000.00
10/1/02 18 10,000.00
11/1/02 19 10,000.00
12/1/02 20 10,000.00
1/1/03 21 10,000.00
2/1/03 22 10,000.00
3/1/03 23 10,000.00
4/1/03 24 10,000.00
---------
120,000.00
----------
5/1/03 25 15,000.00
6/1/03 26 15,000.00
7/1/03 27 15,000.00
8/1/03 28 15,000.00
9/1/03 29 15,000.00
10/1/03 30 15,000.00
11/1/03 31 15,000.00
12/1/03 32 15,000.00
1/1/04 33 15,000.00
2/1/04 34 15,000.00
3/1/04 35 15,000.00
4/1/04 36 15,000.00
---------
180,000.00
----------
/33/
5/1/04 37 19,100.00
6/1/04 38 19,100.00
7/1/04 39 19,100.00
8/1/04 40 19,100.00
9/1/04 41 19,100.00
10/1/04 42 19,100.00
11/1/04 43 19,100.00
12/1/04 44 19,100.00
1/1/05 45 19,100.00
2/1/05 46 19,100.00
3/1/05 47 19,100.00
4/1/05 48 19,100.00
---------
229,200.00
----------
5/1/05 49 19,100.00
6/1/05 50 19,100.00
7/1/05 51 19,100.00
8/1/05 52 19,100.00
9/1/05 53 19,100.00
10/1/05 54 19,100.00
11/1/05 55 19,100.00
12/1/05 56 19,100.00
1/1/06 57 19,100.00
2/1/06 58 19,100.00
3/1/06 59 19,100.00
4/1/06 60 19,100.00
---------
229,200.00
----------
5/1/06 61 19,175.00
6/1/06 62 19,175.00
7/1/06 63 19,175.00
8/1/06 64 19,175.00
9/1/06 65 19,175.00
10/1/06 66 19,175.00
11/1/06 67 19,175.00
12/1/06 68 19,175.00
1/1/07 69 19,175.00
2/1/07 70 19,175.00
3/1/07 71 19,175.00
4/1/07 72 19,175.00
---------
230,100.00
----------
/34
5/1/07 73 19,175.00
6/1/07 74 19,175.00
7/1/07 75 19,175.00
8/1/07 76 19,175.00
9/1/07 77 19,175.00
10/1/07 78 19,175.00
11/1/07 79 19,175.00
12/1/07 80 19,175.00
1/1/08 81 19,175.00
2/1/08 82 19,175.00
3/1/08 83 19,175.00
4/1/08 84 19,175.00
---------
230,100.00
----------
5/1/08 85 19,400.00
6/1/08 86 19,400.00
7/1/08 87 19,400.00
8/1/08 88 19,400.00
9/1/08 89 19,400.00
10/1/08 90 19,400.00
11/1/08 91 19,400.00
12/1/08 92 19,400.00
1/1/09 93 19,400.00
2/1/09 94 19,400.00
3/1/09 95 19,400.00
4/1/09 96 19,400.00
---------
232,800.00
----------
5/1/09 97 20,000.00
6/1/09 98 20,000.00
7/1/09 99 20,000.00
8/1/09 100 20,000.00
9/1/09 101 20,000.00
10/1/09 102 20,000.00
11/1/09 103 20,000.00
12/1/09 104 20,000.00
1/1/10 105 20,000.00
2/1/10 106 20,000.00
3/1/10 107 20,000.00
4/1/10 108 20,000.00
---------
240,000.00
----------
/35/
5/1/10 109 20,000.00
6/1/10 110 20,000.00
7/1/10 111 20,000.00
8/1/10 112 20,000.00
9/1/10 113 20,000.00
10/1/10 114 20,000.00
11/1/10 115 20,000.00
12/1/10 116 20,000.00
1/1/11 117 20,000.00
2/1/11 118 20,000.00
3/1/11 119 20,000.00
4/1/11 120 20,000.00
---------
240,000.00
----------
Total Payments 1,976,400.00
------------
/36/
