EXHIBIT 2.2
PROPRIETARY SOFTWARE LICENSE AND SUPPORT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of June 30, 2003
(the "Effective Date") by and between LiveCSP, Inc., a California corporation,
with its principal office at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000 ("LiveCSP"), on the one hand, and Pacific Magtron
International, Corp., a Nevada corporation, and LiveWarehouse, Inc., a
California corporation and a wholly-owned subsidiary of Pacific Magtron
International, Corp., on the other hand, both with their principal offices at
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. Pacific Magtron
International Corp., and LiveWarehouse, Inc., are referred to herein
collectively as "PMIC/LiveWarehouse."
WHERAS, LiveCSP currently provides certain electronic commerce support services
to LiveWarehouse, Inc., under the URL "xxxxxxxxxxxxx.xxx," and LiveCSP desires
to continue providing such electronic commerce support services subject to and
in accordance with the terms and conditions of this Agreement; and
WHEREAS, PMIC/LiveWarehouse desires that LiveCSP continue providing such
electronic commerce support services;
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of
which is hereby acknowledged, LiveCSP and PMIC/LiveWarehouse hereby agree as
follows:
1. LICENSE GRANT.
A. LiveCSP hereby grants to PMIC/LiveWarehouse an exclusive right and license
to use the LiveMarket software used to operate the website identified as
xxxx://xxx.xxxxxxxxxxxxx.xxx ("Designated Site") for the term of this Agreement.
The LiveMarket software used to operate the Designated Site shall be referred to
hereinafter as the "Licensed Materials." The license granted herein is
non-transferable; however, PMIC/LiveWarehouse may transfer the license upon the
express, prior written consent of LiveCSP, which consent shall not be
unreasonably withheld.
B. LiveCSP shall be responsible for delivery of the Licensed Materials, the
developer's guide and source code excluding COM (Component Object Model)
component source code.
C. PMIC/LiveWarehouse shall be solely responsible for the supervision,
management and control of its use of the Licensed Materials, including without
limitation: (i) the sourcing, licensing, payment and compliance for all
third-party software required to operate the Licensed Materials; (ii) assuring
proper machine configurations, audit controls and operating methods; (iii)
establishing adequate backup plans, based on alternative procedures and access
to qualified programming personnel; and (iv) implementing sufficient recovery
procedures and checkpoints to satisfy its requirements for security and accuracy
of input, as well as, system restart and recovery in the event of a malfunction.
PMIC/LiveWarehouse acknowledges that certain third-party software is necessary
to operate the Licensed Materials.
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D. PMIC/LiveWarehouse may use the Licensed Materials only in connection with
LiveWarehouse's internal operations. PMIC/LiveWarehouse is expressly prohibited
from using the Licensed Materials for the benefit of any third parties.
PMIC/LiveWarehouse may, from time to time, change the Designated Site and/or the
location of the Designated Site to any computer site of PMIC/LiveWarehouse,
subject to PMIC/LiveWarehouse giving LiveCSP written notice of such change 10
business days prior to any such change. During the term of this Agreement, and
at any given time, PMIC/LiveWarehouse is authorized to use the Licensed
Materials on only one of LiveWarehouse's computers or on a cluster of
LiveWarehouse's computers; PMIC/LiveWarehouse may not copy or otherwise
reproduce the Licensed Materials, or any part thereof (except such copying,
strictly limited in number, as is essential for system backup, testing,
maintenance or recovery purposes).
2. TERM OF THIS LICENSE AGREEMENT.
This Agreement shall be effective as of the Effective Date and shall expire on
June 25, 2008.
3. SUPPORT PLAN.
A. Terms of Support. LiveCSP shall continue to provide certain electronic
commerce support services to PMIC/LiveWarehouse under the URL
"xxxxxxxxxxxxx.xxx." The support plan provided hereunder shall be for a period
of two years or 480 hours of support services, whichever occurs first. 480 hours
is the maximum amount of hours of commitment under this Agreement. Commencing on
the Effective Date, LiveCSP shall provide to PMIC/LiveWarehouse electronic
commerce support services in the amount of 20 hours per month. The number of
hours of support services provided by LiveCSP shall be deducted each month from
the total number of unused hours; however, in no event shall the number of hours
deducted each month be less than 20 hours, even if PMIC/Warehouse does not use
20 hours of support services in a given month. Upon the delivery of 480 hours or
24 consecutive months of support services, whichever occurs first, LiveCSP's
support service shall terminate.
B. New Releases. From time to time LiveCSP may issue modified or enhanced
versions of the Licensed Materials, which shall be referred to herein as a "New
Release." To the extent LiveCSP issues New Releases, LiveCSP will provide
PMIC/LiveWarehouse with all New Releases during the term of this Agreement.
4. ACCOUNTING OF HOURS PROVIDED UNDER SUPPORT PLAN.
For each month LiveCSP provides support services under this Agreement, LiveCSP
shall deliver to PMIC/LiveWarehouse an accounting of support hours provided.
LiveCSP will use its best effort to provide the accounting within fifteen (15)
calendar days of the end of the month to which the accounting relates. LiveCSP's
invoice shall disclose the hours of support services provided for the month
reported and the balance of hours remaining under the terms of this Agreement.
PMIC/LiveMarket shall advise LiveCSP in writing within 10 business days of the
date of the invoice, of any discrepancy or dispute concerning the hours recorded
in LiveCSP's invoice. Failure to timely raise such issues shall be deemed an
acceptance of LiveCSP's invoice and accounting set forth therein.
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5. CONFIDENTIALITY.
A. Confidential Information. "Confidential Information" means any confidential
technical data, trade secret, know-how, or other confidential information
disclosed by LiveCSP in writing, orally, or other form, which relates to or
reflects the ideas and expressions contained in the Licensed Materials.
B. Nondisclosure. PMIC/LiveWarehouse agrees that it will not disclose any
Confidential Information to any third party and will not use any Confidential
Information for any purpose other than performance of the rights and obligations
hereunder during the term of this Agreement and for a period of 10 years
thereafter, without the prior, written consent of LiveCSP.
6. INDEMNITY.
LiveCSP hereby agrees to defend, indemnify and hold harmless PMIC/LiveMarket
against all costs, expenses, and losses, including attorney fees and costs,
incurred through claims of infringement by the Licensed Materials of any patent,
copyright, trade secret, or other proprietary right. LiveCSP's agreement to
indemnify set forth above is subject to the following: (i) PMIC/LiveWarehouse
shall promptly notify LiveCSP in writing of any notice of such claim; (ii)
LiveCSP shall have sole control of the defense of any action on such claim and
all negotiations for its settlement or compromise; and (iii) PMIC/LiveWarehouse
shall permit LiveCSP at LiveCSP's option and expense, either to procure for
PMIC/LiveWarehouse the right to continue using the Licensed Materials or modify
the Licensed Materials so that they become non-infringing.
7. LIABILITY.
Except as provided for in Section 6 (Indemnity) above, LiveCSP shall have no
liability for damages to PMIC/LiveWarehouse for any cause whatsoever, regardless
of the form of action, arising from the use of the Licensed Materials. Moreover,
in no event shall LiveCSP be liable for any lost profits, goodwill, or other
consequential, special or indirect damages incurred by PMIC/LiveWarehouse in
connection with or arising from the use of the Licensed Materials.
8. NOTICES.
All notices, requests, demands and other communications under this Agreement
shall be in writing. When mailed certified mail, return receipt requested,
notice is effective on receipt as confirmed by the return receipt. When mailed
first-class to the last address of the recipient known to the party giving
notice, notice is effective three (3) mail delivery days after postmark of
deposit in a United States Postal Service office or mailbox. Addresses for
purpose of giving notice are as follows:
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If to PMIC/LiveWarehouse:
Xxxxxxxx X. Xx
Pacific Magtron International Corp., and
LiveWarehouse, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx X. Xxxxxxxx, III, Esq.
Xxxxxxx & Xxxxx Xxxxxxx Xxxx LLP
Renaissance Xxx
Xxx X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to LiveCSP:
Xxxx Xxxxxx
LiveCSP, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxx
Law Offices of Xxxxxx X. Xxxxx
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may change its address or facsimile number by giving the other party
notice of the change in any manner permitted by this Agreement.
9. NO WAIVER AND REMEDIES.
No waiver or a breach, failure of any condition, or any right or remedy
contained in or granted by the provisions of this Agreement shall be effective
unless it is in writing and signed by the party waiving the breach, failure,
right, or remedy. No waiver of any breach, failure, right, or remedy shall be
deemed a waiver of any other breach, failure, right, or remedy, whether or not
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similar, nor shall any waiver constitute a continuing waiver unless the writing
so specifies. No remedy or election hereunder shall be deemed exclusive but it
shall, wherever possible, be cumulative with all other remedies in law or
equity.
10. BINDING AGREEMENT.
The parties covenant and agree that this Agreement, when executed and delivered
by the parties, will constitute a legal, valid and binding agreement between the
parties and will be enforceable in accordance with its terms.
11. CHOICE OF LAW.
This Agreement, and any dispute arising from the relationship between the
parties to this Agreement, shall be governed by, construed, interpreted and
enforced according to the laws of the State of California.
12. ATTORNEY FEES AND COSTS.
Except as provided is Section 6 (Indemnity) above, in any litigation,
arbitration, or other proceeding by which one party either seeks to enforce its
rights under this Agreement (whether in contact, tort, or both) or seeks a
declaration of any rights or obligations under this Agreement, the prevailing
party shall be awarded reasonable attorney fees, together with any costs and
expenses, to resolve the dispute and to enforce the final judgment.
13. HEADINGS AND THE USE OF PRONOUNS.
The paragraph headings hereof are intended solely for convenience of reference
and shall not be construed to explain any of the provisions of this Agreement.
All pronouns and any variations thereof and other words, as applicable, shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or matter may require.
14. SEVERABILITY.
If a court or arbitrator of competent jurisdiction holds any provision of this
Agreement to be illegal, unenforceable, or invalid in whole or in part for any
reason, the validity and enforceability of the remaining provisions, or portions
of them, will not be affected unless an essential purpose of this Agreement
would be defeated by the loss of the illegal, unenforceable, or invalid
provision.
15. RULES OF CONSTRUCTION.
Each party and its counsel have participated fully in the review and revision of
this Agreement. Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not apply in interpreting this
Agreement.
16. ENTIRE AGREEMENT.
This Agreement, together with the Asset Purchase and Sale Agreement to which
this Agreement is Schedule 1.2, constitutes the final, complete, and exclusive
statement of the terms of the agreement between the parties pertaining to the
subject matter of this Agreement and supersedes all prior and contemporaneous
understandings or agreements of the parties. No party has been induced to enter
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into this Agreement by, nor is any party relying on, any representation or
warranty outside those expressly set forth in this Agreement.
17. MODIFICATION.
This Agreement may be supplemented, amended, or modified only by the mutual
agreement of the parties hereto. No supplement, amendment, or modification of
this Agreement shall be binding unless it is in writing and signed by both
parties.
18. ASSIGNABILITY.
Neither party may assign this Agreement or the rights and obligations thereunder
to any third party without the prior express written approval of the other
party.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, and by the different
parties hereto on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date of first above written.
"PMIC/LiveMarket" "LiveCSP"
Pacific Magtron International Corp. LiveCSP, Inc.
By: By:
/s/ Xxx Xx /s/ Xxxx Xxxxxx
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Xxx Xx, President Xxxx Xxxxxx, President
LiveWarehouse, Inc.
By:
/s/ Xxx Xx
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Xxx Xx, President
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