EXHIBIT 10.1
LICENSE AGREEMENT
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THIS AGREEMENT made and entered into this 27 day of March, 1998 by Softlink
Inc. having a place of business at 0000 X. Xx Xxxxxx Xxxx, Xxxxx 00, Xxxxxxxx
Xxxx, Xxxxxxxxxx 00000, U.S.A., (hereinafter referred to as LICENSOR), and NIC
Ltd. having a place of business at 0-00-00 Xxxxxxxxxxxx, Xxxxxxxxx-xx, Xxxxx
000, Xxxxx, (hereinafter referred to as LICENSEE).
WHEREAS, LICENSOR has developed certain software and related documentation
(hereinafter PRODUCTS) as described in Exhibit A attached hereto; and
WHEREAS, LICENSOR desires to license and LICENSEE desires to obtain certain
exclusive rights to the PRODUCTS within LICENSEE's TERRITORY.
NOW, therefore the parties agree as follows:
1.0 DEFINITIONS - For the purpose of this licensing Agreement, the
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following words and terms shall have the meanings set forth below:
a) PRODUCTS - The products identified in Exhibit A.
b) TERRITORY - Japan.
c) MARKET - The Retail and Bundling Computer Software Industry.
2.0 THE GRANT
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2.1 LICENSOR grants to LICENSEE an exclusive license to assemble, sell,
and distribute in the market exclusivity in the TERRITORY under the
terms and conditions set forth in this AGREEMENT.
2.2 LICENSEE shall not have the right to grant a sub license under this
License Agreement without the written consent of the LICENSOR.
2.3 LICENSOR shall have the right to demand the CD manufacturer
immediately cease the production of the PRODUCT if any part of this
Agreement is violated by the LICENSEE.
3.0 ROYALTIES
3.1 LICENSEE shall pay to LICENSOR in connection with all sales in the
TERRITORY a royalty as follows:
3.2 BravoMAIL (new name: PowerLink)
(a) Royalty -USD$15.00 per unit
(b) VoiceLink Royalty -USD$7.00 per unit
3.2 LICENSEE shall agree to pay LICENSOR an Annual Minimum Guarantee
Royalty of USD$800,000 for the first year which consists of 15 months,
and an Annual Minimum Guarantee Royalty of USD$1,200,000 in the second
year which consists of 12 months. LICENSEE agrees to pay LICENSOR a
TOTAL INITIAL DEPOSIT of USD$250,000 in three installments. The first
installment of USD$10,000 shall be made at the signing of this
AGREEMENT, the second installment of USD$115,000, shall be paid before
April 20, 1998, and the third and final installment of USD$125,000
shall be paid when the production versions of the PRODUCTS are
completed and given to the LICENSEE. The payment of the TOTAL INITIAL
DEPOSIT shall be credited in full against the minimum Annual Minimum
Guarantee Royalty for the first year. At the end of each royalty year,
any deficiency to the Annual Minimum Guarantee Royalty shall be pay on
within 60 days after the close of the royalty year. Royalty payments
in excess of the minimum payments specified in this paragraph may not
be carried forward from previous years and applied against the future
Annual Minimum Guarantee Royalty. After the second year, thirty (30)
days prior to the beginning of each year, the Annual Minimum Guarantee
Royalty will be established by mutually agreed upon by LICENSOR and
LICENSEE. If LICENSEE fails to pay the deficiency, the LICENSEE will
lose the exclusivity right in the TERRITORY. The LICENSEE is not
liable to pay the deficiency.
3.3 LICENSOR shall be entitled for 30% of the revenue generated from the
sales by the LICENSEE of upgrades on the PRODUCTS.
3.4 LICENSOR shall be entitled for 40% of the revenue generated from
bundling of the PRODUCTS in TERRITORY.
3.5 LICENSEE shall report sales volume to the LICENSOR every month on the
20/th/ day of each month and pay the corresponding royalty fee to the
LICENSOR within 60 days.
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4.0 RECORD MAINTENANCE AND INSPECTION
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4.1 LICENSEE shall at all times keep accurate accounts and maintain
complete records of the quantity and selling price of PRODUCTS sold it
or by its SUBSIDIARY or AFFILIATE and of any other information
necessary to confirm the amounts Royalty paid to LICENSOR. Such
records of LICENSEE and its SUBSIDIARY or AFFILIATE shall be open
inspection on behalf of LICENSOR at LICENSOR's own expense by a
Certified Public Accountant to be chosen by LICENSOR on reasonable
notice, during ordinary business hours, but not more than once in any
twelve (12) month period, for the purpose of verifying the records and
the accuracy of royalty payments. LICENSEE agrees that such documents
will be maintained for a period equal to a five (5) years period at
LICENSEE's aforementioned place of business. In the event that such
Certified Public Accountant shall examine the records, documents and
materials in the possession of or in the control of LICENSEE or its
SUBSIDIARY or AFFILIATE with respect to the subject matter hereof,
such examination shall be conducted in such manner as not to unduly
interfere with the business of LICENSEE or its SUBSIDIARY or
AFFILIATE.
5.0 WARRANTIES AND REPRESENTATION
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5.1 LICENSOR warrants and represents that:
a) It has not granted any entity other than the LICENESS the right
to the market in the LICENSEE's TERRITORY.
b) It has made no actual knowledge of any infringement of a third-
party patent or any other claim which would interfere with the
commercialization of the PRODUCTS by LICENSEE.
5.2 At the time when the production versions of the PRODUCTS are completed
and given to LICENSEE, LICENSOR shall disable all future other
localized versions of the PRODUCTS, including English, French, German
and Spanish, to operate on Japanese Windows in Japanese time zone.
6.0 THIRD PARTY CLAIMS
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6.1 LICENSOR agrees to indemnify and hold harmless the LICENSEE from and
against any claim by an U.S. or Japan patent and copyright
infringement or any other claim by a third party, which, if sustained,
would prevent LICENSEE from marketing the PRODUCTS.
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6.2 So long as LICENSEE maintains product liability insurance coverage,
LICENSEE agrees to include LICENSOR as an additional named insured
under LICENSEE's product liability insurance as far as any product
covered by this Agreement is concerned.
7.0 COMMERCIALIZATION BY LICENSEE
7.1 LICENSEE shall use its best efforts to promote vigorously the
marketing and distribution of the PRODUCTS to realize the maximum
sales potential for the PRODUCTS in the TERRITORY. LICENSEE shall be
solely responsible for all costs and expenses related to the
advertising, marketing, promotion, and distribution of the PRODUCTS.
7.2 LICENSOR shall be responsible for the localization of the PRODUCTS.
LICENSEE shall be responsible for the localization of manual and
packages.
7.3 LICENSEE shall display "SOFTLINK" copyright in all documents and
software copies of the PRODUCTS.
8.0 FORCE MAJEURE
8.1 It is understood and agreed that in the event of an act of government,
or war conditions, or fire, flood or labor trouble in the offices or
factory of the LICENSEE or in the factory of those assembling the
PRODUCTS including strikes of any nature, embargoes or transportation
interruptions, which prevents the performance by LICENSEE of the
provisions of this agreement, then such non-performance by LICENSEE
shall not be considered a breach of this Agreement and such non-
performance shall be excused while, but no longer than, the conditions
described herein prevail.
9.0 TERM
9.1 This Agreement and the royalty obligations thereunder shall
remain in force, for the greater of two years or terminated under the
provisions of paragraph 10, for the end of the commercial life of the
product.
10.0 TERMINATION
10.1 This License Agreement may be terminated by either party by giving
written notice to such effect, in the event that the other party shall
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materially default in the performance of any of its obligations
arising hereunder and shall fail to cure such default within sixty
(60) days after receipt of written notice thereof from the other
party.
10.2 LICENSOR shall have the right to terminate this Agreement if LICENSEE
is materially in default of this Agreement; or make an assignment for
the benefit of creditors; or files a voluntary petition of
bankruptcy; or seeks or consents to any reorganization or similar
relief; or is adjudicated bankrupt; or if a third party commences any
bankruptcy, insolvency, reorganization or similar proceeding
involving the other party; or if the assets of such other party or a
major part thereof are expropriated, nationalized or otherwise made
subject to government control. Upon the occurrence of any such event
LICENSOR shall have the right to terminate this Agreement effective
upon notice at any time within ninety (90) days of such event coming
to its knowledge. LICENCEE agrees that the limit to LICENSEE's right
is the distribution of the PRODUCT in the TERRITORY and under no
conditions does LICENSEE have any rights to the intellectual property
of LICENSOR.
10.3 It is understood and agreed that if LICENSEE ceases the sale of the
PRODUCTS three (3) months, or fails to list the ITEM in LICENSEE's
sales catalogs, LICENSOR may give notice to LICENSEE of his desire to
terminate this Agreement as to that product for that reason, and if
LICENSEE does not within sixty (60) days resume the sale of that
product, this License Agreement and the license granted herein as to
the PRODUCTS shall terminate as of the end of that sixty (60) day
period.
10.4 Upon the termination prior to expiration of this Agreement in any
manner provided herein, LICENSEE shall have a period of three(3)
months to dispose of its then existing inventory and work in progress
of the PRODUCTS
10.5 LICENSEE shall have the right to terminate this contract if the
funding party fails to provide the necessary fund for the INITIAL
DEPOSIT. LICENSOR shall have the right to keep the INITIAL DEPOSIT
when this Contract is rescinded.
11.0 NO JOINT VENTURE
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11.1 Nothing herein shall be construed to place the parties in the
relationship of partners or joint ventures and neither party shall
have the power to obligate or bind the other in any manner or the
assignment of ownership rights.
12.0 WAIVER
12.1 No waiver by either party, whether expressed or implied, of any
provisions of this License Agreement, nor any breach nor default of
either party, shall constitute a continuing waiver, or a waiver of
any other provision or provisions of this License Agreement and no
such waiver by either party shall prevent such party from enforcing
any or all other provisions of this Agreement or from acting upon the
same or any subsequent breach or default of the other party under any
provisions of this Agreement.
13.1 APPLICABLE LAW
13.2 This Agreement shall be construed and applied in accordance with the
laws of the States of California, except as to any provisions hereof
that are governed by the laws of the United States of America, in
which case the latter shall govern.
14.0 DISPUTES
14.1 All disputes, controversies or differences which may arise out of or
in relation to or in connection with this License Agreement as
between the parties to this License Agreement shall be resolved
through arbitration on an expedited basis in accordance with the
rules of the American Arbitration Association in San Francisco,
California, USA.
15.0 ASSIGNMENT
15.1 LICENSEE's obligations and rights under this License Agreement cannot
be assigned by LICENSEE except to a purchaser of the entire business
of LICENSEE which shall agree to be bound by the terms and conditions
of this License Agreement.
16.0 INVALIDITY
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16.1 Invalidity, illegality or unenforceability of any part of this
License Agreement shall not affect the validity, legality or
enforceability of the balance thereof.
17.0 ENTIRE UNDERSTANDING
17.1 This License Agreement is the entire understanding between the
parties and no change in Agreement or modification shall be effective
unless executed in writing.
18.0 NOTICES
18.1 Any communication, report or notice required or permitted to be given
under this License Agreement shall be made in writing and in English
language and shall be deemed to have been duly and validly given
effective upon receipt of same , or if sent by Certified or
Registered mail, effective seven (7) days after mailing, addressed to
each case as follows:
a) If to LICENSOR, to him at:
____________________________________
____________________________________
____________________________________
b) If to LICENSEE, to it at:
____________________________________
____________________________________
____________________________________
Attention:__________________________
or at such other address as either party may hereafter furnish to the other
party by written notice, as herein provided.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed effective as of the date of this Agreement.
LICENSOR: LICENSEE:
Softlink Inc. N.I.C. Ltd.
By: /s/ Xxxxxxx Xxx By: /s/ Eijin Goh
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Name: Xxxxxxx Xxx Name: Eijin Goh
Title: Chief Executive Officer Title: President
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EXHIBIT A
1. BravoMAIL (new name: PowerLink)
2. VoiceLink'98
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CONSULTANT AGREEMENT
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THIS AGREEMENT made and entered into this 27 day of 1998, by Softlink Inc.
having a place of business at 1621 W. E1 Camino Real, Suite 22, Mountain View,
California 94040, U.S.A., (hereinafter referred to as the "Company"), and NIC
Ltd. having a place of business at 0-00-00 Xxxxxxxxxxxx, Xxxxxxxxx-xx, Xxxxx
000-0000, Xxxxx (hereinafter referred to as the "Consultant").
Both parties shall agree on the following issues:
1. For each copy of PowerLink and VoiceLink products sold in Japan, the
Consultant will be entitled for USD$1.00.
2. For the revenue generated from upgrade given to the Company through
the Consultant, the Consultant will be entitled for 10% of the
revenue.
3. The Consultant shall promote bundling for the Japanese market only. If
the bundling territory shall extend beyond Japan, the Company shall be
notified beforehand and reserve the right of refusal.
4. The Consultant shall be entitled for 10% of the Japanese overall
bundling revenue.
5. The Consultant has an option to license the Company's technology and
participate in co-development of future products. Details will be
addressed and negotiated on mutual agreed terms.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
effective as of the date of this Agreement.
The Company: The Consultant:
Softlink Inc N.I.C. Ltd.
By: /s/ Xxxxxxx Xxx By: /s/ Eijin Goh
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Name: Xxxxxxx Xxx Name: Eijin Goh
Title: Chief Executive Office Title: President
