EXHIBIT 10.12
LICENSING AGREEMENT
This LICENSING AGREEMENT ("Agreement") is made this 29th day of November,
1999, by and between The XxxXxx.xxx, Inc., a Florida corporation ("Licensor"),
and PriceNet USA, Inc., a Nevada corporation ("Licensee").
RECITALS
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WHEREAS, Licensor owns and operates a web site on the Internet at
xxx.xxxxxxxxx.xxx which, among other things, is an advanced portal and contains
a megasearch engine and specialty search engine.
WHEREAS, Licensor is the owner of the technology underlying the megasearch
engine and specialty search engine (collectively, the "Megasearch Technology")
and Licensor is the Exclusive Domestic Marketer of TheBigStore Private Label
Product.
WHEREAS, Licensor and Licensee wish to outline the terms and conditions
pursuant to which the Licensee is authorized, during the term of this Agreement,
to make use of the Megasearch Technology and all content (the "Content") on
Licensor's web page (the "Web Page") through the development and creation of a
private label web page.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement,
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the Licensor hereby grants to Licensee a perpetual, nonexclusive right and
license to use its Megasearch Technology and Content on a private label
basis in connection with a web page to be operated by Licensee on the
Internet (the "License"). In this regard, the License shall apply solely to
that Content which is available on Licensor's Web Page at the time of
entering into this Agreement and which the Licensor has the right to
sublicense. Licensor shall no obligation to license to Licensee any new
Content added to the Web Page following the date hereof. In the event that
Licensee should desire to license any new Content, the parties shall
negotiate in good faith the terms of such license. The Content which is
currently available for licensing to Licensee is Horoscope, Lottery, Yellow
Pages, White Pages, Maps, Weather, Stocks, Ski Reports, and News.
2. Licensor's Representations and Obligations
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2.1 Representation of Licensor. The Licensor represents and warrants to
the Licensee that:
(a) the Licensor is the owner of the Megasearch Technology;
(b) the Licensor has the right to develop, sell, distribute and put
into use the Megasearch Technology; and
(c) The Megasearch Technology does not, to the knowledge of Licensor,
infringe any patent, copyright, trademark, trade secret or other
intellectual property rights, or similar rights of any third
party.
2.2 Disclaimer. Except as expressly provided herein, the Licensor makes
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no representations or warranties, either express or implied, with respect to the
Megasearch Technology or Content. Without limiting the generality of the
foregoing, the Licensor specifically disclaims any implied warranty or
representation that the use of the Megasearch Technology or Content will provide
to Licensee any particular result or will be suitable for Licensee's purposes.
2.3 Limitation of Liability. Notwithstanding anything to the contrary
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contained herein, the limit of Licensor's liability (whether in contract, tort,
negligence, strict liability in tort or by statute or otherwise) to License or
to any third party concerning performance or non-performance under this
Agreement, or in any manner related to this Agreement, for any and all claims
shall not in the aggregate exceed the monetary amounts previously paid by
Licensee to Licensor pursuant to this Agreement. IN NO EVENT SHALL LICENSOR BE
LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE LOSS,
DAMAGES OR EXPENSES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF.
3. Term and Termination.
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3.1 The term of this Agreement shall commence as of the Effective Date and
continue for a period of (Five) years (the "Initial Term") unless sooner
terminated as provided below. Upon expiration of the Initial Term and any
Additional Term (as defined below), the Agreement shall be automatically
extended for additional periods of one (1) year (each an "Additional Term"),
unless not less than sixty (60) days prior to the expiration of such Initial
Term or Additional Term one party shall have delivered to the other party a
written notice of its intent not to extend this Agreement. Within sixty (60)
days prior to the expiration of the Initial Term and each Additional Term, the
parties agree to negotiate the terms of such Additional Term, which negotiations
shall take into consideration the current market rate for such services
(including anticipated services). The Initial Term and each Additional Term are
collectively referred to herein as the "Term."
3.2 Licensor and Licensee may mutually agree in writing to terminate this
Agreement at any time.
3.3 Either party may terminate this Agreement immediately if:
(a) The other party has breached a material term of this Agreement
and, after written notice and a reasonable opportunity, not to exceed fifteen
(15) days, the other party fails to cure such breach; or
(b) The other party has committed any act or omission that materially
injures the reputation of the other party.
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3.4 This Agreement shall automatically terminate upon the occurrence of
any of the following events:
(a) The bankruptcy or insolvency of either party; or
(b) The liquidation or dissolution of either party; or
(c) A "Change of Control" of Licensee. Change of Control shall mean
(1) any merger, consolidation or sale of Licensee where more than
50% of combined voting power of the surviving entity changes, or
(2) the sale transfer or other disposition of substantially all
of Licensee's assets.
3.5 Upon any termination of this Agreement, each party shall promptly
deliver to the other party all Confidential Information (defined below) and
property belonging to the other party that is in its possession or under its
control, and neither party shall retain copies or reproductions of such
Confidential Information.
4. Compensation. As compensation for using the Megasearch Technology and
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Content, Private Label Marketing Fees, and for the Licensor developing and
creating a private label web page, Licensee shall pay to Licensor a fee equal to
Twenty-Five Dollars ($25) for each Internet Mall Operator (IMO) product sold by
PriceNet after the back-end services and fulfillment for the (IMO) becomes
available Online. All Fees payable within Ten days following the end of the
month sales.
4.2 A monthly maintenance fee of Five Dollars ($_5.00__) for every IMO
currently using The BigStore Private Label mall, which shall be payable on the
first day of each month following commencement of the private label Back-end
Processing Services and at the IMO annual renewal date respectively.
5. Independent Contractor Relationship. This Agreement shall in no way be
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construed to constitute either party as a partner, joint venturer, agent, or
employee of the other party, and neither party shall act or attempt to act or
represent itself, directly or by implication, as a partner, joint venturer,
agent or employee of the other party. Neither party nor any of its respective
employees shall have any authority to enter into contracts, make commitments or
otherwise bind the other party to any obligations without the other party's
prior written consent.
6. Confidentiality; Non-Circumvention and Non-Competition.
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(a) Each party acknowledges and agrees that it will have access to or be
provided with confidential information of the other party during the term of
this Agreement. As used herein, the term "Confidential Information" shall mean
any and all proprietary or confidential information of a party, including,
without limitation such party's business plan, business presentation or related
proprietary and financial information as well as other confidential or
proprietary information of such party regarding the such party's business,
plans, financial results and statements, markets, projected activities,
customers and results of operations, requirements
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and sources, contracts, means, methods and processes of providing services,
copyrights, patents, trademarks, trade secrets, and financial information.
(b) Each party agrees to keep the Confidential Information of the other
party in the strictest confidence, and agrees that it will not, directly or
indirectly, publish or disclose, or authorize the publication or disclosure of,
or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than its employees or consultants, but only to the
extent necessary for the fulfillment of its obligations under this Agreement and
subject in each such case to the such party using its best efforts to ensure
that the persons to whom Confidential Information is disclosed keep such
information confidential and do not use such Confidential Information except for
the purposes for which the disclosure is made. Each party agrees to comply with
the other party's policies and regulations, as may be reasonably established
from time to time, for the protection of its Confidential Information.
(c) Each party's confidentiality obligations shall continue with respect
to each item of Confidential Information, including after the termination of
this Agreement, for a period of five (5) years or until such time as such party
can show that any such item of Confidential Information (i) has legally and
properly entered the public domain through a source other than its own and
through no fault of its own, (ii) has legally and properly been received from an
unrelated third party through no breach of any agreement with the other party
and without an obligation to keep it confidential, (iii) was known to such party
or was in such party's possession, without any obligation to keep it
confidential, prior to the receipt of such item of Confidential Information from
the other party, or (iv) was independently developed by one party without
reference to Confidential Information received hereunder.
(d) Each party acknowledges that the other party's Confidential
Information is of a special, unique and extraordinary character and for that
reason the other party will be irreparably damaged in the event that the
confidentiality, non-circumvention or non-competition obligations imposed upon
it, as set forth herein, are not specifically enforced. Accordingly, each party
agrees that the other party shall be entitled, at its election, to institute and
prosecute proceedings against it, as set forth herein, in any court of competent
jurisdiction, either at law or equity, to: (i) obtain damages for breach of the
obligations hereunder; (ii) enforce specific performance of said obligations, or
both. Such remedies are cumulative and not exclusive and shall be in addition to
any and all other remedies which the other party may have, at law or in equity,
in the event the a party breaches any of its obligations hereunder. The parties
hereto confirm that the covenants in this Agreement are expressly deemed to
cover acts of negligence and any inadvertent disclosure or violation of the
terms herein.
7. Ownership of Proprietary Information. Licensee hereby acknowledges and
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agrees that the Megasearch Technology is the sole and exclusive property of
Licensor and that Licensee has no, and shall not obtain any by virtue of this
Agreement, right, title or interest in or to any of the Megasearch Technology.
8. Indemnification. Each party (the "Indemnifying Party") agrees to defend,
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indemnify and hold harmless the other party and its directors, officers,
employees, shareholders, assigns and agents (the "Indemnified Party") from and
against any and all damages, liabilities, losses, claims, demands, costs and
expenses (including, without limitation, reasonable attorneys' fees) which
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may be asserted against or sustained or incurred by any of the Indemnified Party
as a result of, arising out of or relating to (i) any material breach or default
by the Indemnifying Party of any of the terms or provisions of this Agreement,
including without limitation, any use or misuse of the Megasearch Technology, or
any negligence or errors or omissions on the party of a party in the performance
of its duties or obligations hereunder, or (ii) any litigation involving the
Indemnifying Party not relating to this Agreement where the Indemnified Party
has been made a party to such litigation by virtue of the parties' strategic
relationship.
9. Force Majeure. Subject to the limitations of this Agreement and except as
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specifically provided in this Agreement to the contrary, neither of the parties
hereto shall be liable for defaults, delays or non-performance of any covenant,
agreement, work, service, or other act required under this Agreement to be
performed by such party, or for any damages, including, without limitation, any
incidental or consequential damages, arising out of the failure to perform any
of its obligations, by reason of any circumstance or condition beyond its
control, including, without limitation, default of third-party vendors,
suppliers or service providers, failure of power or other utilities, strikes,
lockouts and other labor disputes or other industrial disturbances, unavoidable
accidents, acts of terrorism, sabotage, embargoes, blockades, injunction or
other administrative order, governmental law or regulations (including changes
in United States foreign policy) which prevent or substantially interfere with
the required performance, condemnations, riots, insurrections, martial law,
conflicts (declared or undeclared), civil commotion or disorders and any adverse
change in political, economic or social conditions, fire, explosion, flood,
earthquakes and other casualty, acts of God, or any other cause beyond the
control of such party (each, a "Force Majeure Event"). In the event of any such
Force Majeure Event, the performance of any covenant, agreement, obligation,
work or service, or other act of the party affected by such Force Majeure Event
under this Agreement shall be excused for the period of delay and the period for
the performance of the same shall be extended by such period. Each of the
parties hereto shall take all reasonable steps to resume performance hereunder
with the least possible delay.
10. Miscellaneous.
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10.1 Entire Agreement. Except as otherwise provided herein, this
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Agreement constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be modified
by an agreement in writing executed by the parties hereto.
10.2 Binding Effect, Assignment. This Agreement shall inure to the
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benefit of and be binding upon the parties and their respective successors in
interest and assigns. Licensee may not assign this Agreement without the prior
written consent of the Licensor.
10.3 Notices. All notices, requests, demands, and other communications
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provided for hereunder shall be in writing (or by telex or facsimile
transmission) and shall be deemed to have been duly given:
(i) On the date of service if delivered in person or by telex or
facsimile transmission (with the telex or facsimile confirmation
of transmission
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receipt acting as confirmation of service when
sent and provided that telexed or telecopies notices are also
mailed by first class, certified or registered mail, postage
prepaid); or
(ii) In seventy-two (72) hours after mailing by first class,
registered or certified mail, postage prepaid, and properly
addressed as follows:
The XxxXxx.xxx, Inc.: PriceNet USA, Inc.:
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2939 Xxxx Rock ____________________________________
Xxxxx 000 ____________________________________
Xxx Xxxxxxx, Xxxxx 00000 ____________________________________
Facsimile: (000) 000-0000 Facsimile:__________________________
Attn: Xxxxx Xxxxx, Chairman Attn:_______________________________
or to such other address as the party affected may designate in a written notice
in compliance with this Section.
10.4 Arbitration. Except for matters covered by Section 6(d) above, all
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disputes arising out of or in connection with this Agreement shall be finally
settled under the Rules of American Arbitration Association ("AAA") by one or
more arbitrators appointed in accordance with said Rules. The place of
arbitration shall be Orange County, California. The parties hereby renounce any
right of recourse that they may have before the court of any jurisdiction except
to obtain preliminary or injunctive relief or enforce an award of the
arbitrator.
If any award rendered by AAA in accordance with this arbitration clause
would not be capable of being executed in the jurisdiction of a party against
whom a claim for payment is made or where that party resides or carries on
business, neither the award nor the said arbitration clause shall bar a party
hereto from taking action before the courts that have jurisdiction over such
other party.
10.5 Attorney Fees. In the event that any party shall bring an action or
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arbitration in connection with the performance, breach or interpretation hereof,
then the prevailing party in such action, as determined by the court or other
body having jurisdiction, shall be entitled to recover from the losing party in
such action, as determined by the court or other body having jurisdiction, all
reasonable costs and expenses of litigation or arbitration, including reasonable
attorneys fees, court costs, costs of investigation and other costs reasonably
related to such proceeding, in such amounts as may be determined in the
discretion of the court or other body having jurisdiction.
10.6. Section Headings. The various section headings are inserted for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
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10.7 Severability. In the event that any provisions, or portions thereof,
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of this Agreement are held to be unenforceable or invalid by any court of
competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
10.8 Counterparts. The parties hereto may execute this Amendment
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simultaneously, in any number of counterparts or by annexing signature pages
hereto, or on facsimile copies, each of which shall be deemed an original, but
all of which together shall constitute one and the same document.
11. Access to Information. PriceNet hereby agrees to provide access to BigHub
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and its authorized representatives (e.g., its auditors) during normal
business hours to PriceNet's accounting books and records in order to verify the
accuracy of fees paid to BigHub. In the event that BigHub discovers an
underpayment of fees for any three month period in excess of ten percent (10%),
then, in addition to promptly paying to BigHub the amount of such underpayment,
PriceNet shall reimburse BigHub for its reasonable costs incurred in conducting
such audit.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
The XxxXxx.xxx, Inc. PriceNet USA, Inc.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxxx
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Title: Chief Operating Officer Title: President
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