Exhibit 2.2
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") entered into as
of June 12, 1997 ("Effective Date") between ijob, Inc. ("ijob"),
an Oklahoma corporation whose principal place of business is
00000 Xxxxxx Xxxx, Xxxxxx, XX 00000 and HT Technologies, Inc.
("HT"), an Oklahoma corporation whose principal place of business
is 0000 X. Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000; Xxxxx
Xxxxxxxx, an individual residing at 0000 X. Xxxxxxxx
Xxxx,Xxxxxxxx Xxxx, XX 00000 ("Xxxxxxxx"); and Xxx Xxxxxxx, an
individual residing at 0000 X. Xxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX
00000 ("Xxxxxxx").
WHEREAS, HT has developed certain software and software
related processes relating to the testing, identification and/or
referral of individuals seeking employment ("Software"); and
WHEREAS, ijob desires to acquire all of HT's interest in and
to said Software; and
WHEREAS, Xxxxxxxx and Xxxxxxx are the sole shareholders of
HT and Xxxxxxxx has executed an employment agreement ("Employment
Agreement") with ijob of even date herewith; and
WHEREAS, ijob, agrees to license back to HT certain rights
in the assets being purchased pursuant to this Agreement.
WHEREUPON, in consideration of the above premises and the
mutual agreements, representations and warranties set forth in
this Agreement, the parties agree as follows:
1. Sale of Assets. HT, Xxxxxxxx and Xxxxxxx agree to
sell and transfer to ijob, and ijob agrees to purchase from HT,
Xxxxxxxx and Xxxxxxx at the Closing (as hereinafter identified
in this Section 1),all of HT's right, title and interest in and
to the assets identified on Exhibit A hereto ("Assets") free and
clear of any pledge, lien, option, security interest, mortgage
claim, charge or other encumbrance of any kind whatsoever except
as provided in Sections 3.4 and 3.5 hereof. Notwithstanding
anything to the contrary herein, it is agreed and understood that
HT's expatriate selection and testing program known as
"ipatriot" is not included in the Assets being sold to ijob by
HT. Also, notwithstanding anything to the contrary in this
Agreement, it is also agreed and understood that ijob is not
assuming any of HT's financial or other obligations whatsoever,
including without limiting the generality of the foregoing, any
financial or other obligations under the license agreements or
other agreements listed on Exhibit C hereto. The closing of this
sale shall take place at the offices of ijob on the 1st day of
June, 1997 ("Closing").
2. Purchase Price. The consideration for the purchase of
said Assets shall be comprised of the following:
2.1 One Hundred ($100.00) Dollars paid at Closing to HT.
2.2 The issuance by Applied Intelligence Group, Inc.
("AIG") of thirty-eight thousand (38,000) stock options to
Xxxxxxxx and twelve thousand (12,000) stock warrants to Xxxxxxx
in AIG common stock with a price of $3.50 per share. Such stock
options and warrants shall be fully vested as of the Effective
Date of this Agreement but shall be forfeited to the extent that
they are not exercised within two (2) years of the Effective Date
of this Agreement.
2.3 Subject to the terms of subsections 2.3.1 and 2.3.2
hereof, the payment by ijob to HT of (i) fifty percent (50%) of
the Distributable Earnings of ijob, (ii) fifty percent (50%) of
the Distributable Proceeds from the sale of ijob assets and (iii)
fifty percent (50%) of any Distributable Gross Royalties received
by ijob from the sale or other transfer of ijob assets
(hereinafter collectively referred to as "Distributable
Amounts"). For purposes of this Agreement, what constitutes such
Distributable Amounts shall be determined from time to time by a
majority vote of the then current Board of Directors of ijob.
The other fifty percent (50%) of said Distributable Amounts shall
be distributed to AIG, which is an intended beneficiary of this
Agreement.
2.3.1 Notwithstanding anything to the contrary
in section 2.3 hereof but subject to the terms of
subsection 2.3.2 hereof, it is agreed and understood
that the Board of Directors of ijob shall have the
power and authority upon a majority vote to grant key
ijob employees a share in any or all of said
Distributable Amounts as ijob's Board deems
appropriate; provided however and notwithstanding
anything to the contrary in this subsection 2.3.1, any
such share(s) granted to other parties shall equally
reduce the amounts otherwise payable to HT and AIG from
said Distributable Amounts.
2.3.2 Notwithstanding anything to the contrary
in section 2.3 hereof or any subsection thereof, upon
the sale of all of the stock or of substantially all of
the assets of ijob, neither HT nor AIG nor any other
person who has been given a share(s) in said
Distributable Amounts shall have any further right to
any share therein except as may be reserved in such
sale.
2.4 The granting of a license from ijob to HT to use
certain of the Assets subjects to the terms and conditions of
said License. It is agreed and understood that although ijob is
acquiring said Assets, ijob is not assuming any of HT's
obligations under the licenses or other agreements identified on
Exhibit C hereto. The License shall be in substantially the form
set forth in Exhibit B hereto.
2.5 It is agreed and understood that AIG shall have the
right in its sole and absolute discretion to sell any stock it
holds in ijob. Provided, however, and notwithstanding anything
to the contrary herein, HT shall have a right of first refusal to
match any bona fide offer(s) from any third party or parties,
accepted by AIG, to purchase all or any of the stock of ijob.
Such right of first refusal shall be on the same terms and
conditions as are set forth in any such bona fide offer(s) which
may be accepted by AIG; provided however, HT must notify AIG in
writing within thirty (30) days of receipt of notice from AIG
that AIG either has or will accept any such bona fide offer if HT
will exercise this right of first refusal and agrees to meet the
terms of such bona fide offer. If AIG receives such notice that
HT will exercise its right of first refusal, AIG agrees to sell
to HT on such terms and conditions. If AIG has not received such
notice from HT within such thirty (30) day period, HT's right of
first refusal as to that bona fide offer is null and void and of
no further force and effect. In the event that HT does not
exercise its right of first refusal, and AIG proceeds with such
sale, HT shall share in the net sales proceeds ("Net Sales
Proceeds") from such sale in :
an amount equal to the amount it would have been
entitled to receive as Distributable Proceeds from the
sale of ijob assets pursuant to either Section 2.3 or
2.3.1 of this Agreement, as the case may be.
2.6 It is agreed and understood that HT shall have the
right, in its sole and absolute discretion, to transfer its
rights to receive Distributable Amounts under this Agreement.
Provided, however, and notwithstanding anything to the contrary
herein, AIG shall have a right of first refusal to match any bona
fide offer(s) from any third party, accepted by HT, to acquire
HT's rights to any such Distributable Amounts. Such right of
first refusal shall be on the same terms and conditions as are
set forth in such bona fide offer(s) which may be accepted by HT;
provided however, AIG must notify HT in writing within thirty
(30) days of receipt of notice from HT that HT either has or will
accept any such bona fide offer if AIG will exercise this right
of first refusal and agrees to meet the terms of such bona fide
offer. If HT receives such notice that AIG will exercise its
right of first refusal, HT agrees to sell to AIG on such terms
and conditions. If HT has not received such notice from AIG
within such thirty (30) day period, AIG's right of first refusal
as to that bona fide offer is null and void and of no further
force and effect.
3. Representations and Warranties of HT, Xxxxxxxx and
Xxxxxxx. HT, Xxxxxxxx and Xxxxxxx covenant, represent and
warrant as follows:
3.1 HT is a corporation duly organized and validly existing
and in good standing under the laws of the State of Oklahoma and
its sole shareholders are Xxxxxxxx and Xxxxxxx.
3.2 HT has full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. No other corporate proceedings on the part
of HT are necessary to authorize the Agreement or to consummate
the transaction so contemplated.
3.3 Neither the execution and delivery by HT of this
Agreement, nor the consummation of the transactions contemplated
hereby will result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, license, agreement,
contract, or other instrument or obligation to which HT is a
party or by which HT or any of the Assets may be bound; or
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to HT or any of the Assets.
3.4 Except for any claims by Mastermind Technology, Inc.
and/or Xxxxx Master in or to any of the Assets, such Assets or
any portion thereof are not subject to any license or other
rights of any third party.
3.5 Except for any claims by Mastermind Technology, Inc.
and/or Xxxxx Master in or to the Assets, and except to the extent
that HT has granted licenses in or to said Assets in any of the
licenses identified on Exhibit C to this Agreement, HT, Xxxxxxxx
and Xxxxxxx have not mortgaged, pledged or subjected any of said
Assets to any lien, charge, security interest or any other
encumbrance or sold, assigned, transferred or granted any rights
or options of any kind or nature in the Assets or agreed to do
so.
3.6 Other than as contained in the Assets sold to ijob
pursuant to this Agreement, there are no patents, patents
pending, trademarks, trade names, service marks, copyright
registrations or applications therefor, owned, licensed or used
by or registered in the name of HT or other persons which apply
to the business. To the extent that any such rights exist, HT,
Xxxxxxxx and Xxxxxxx specifically agrees to assign such
unreserved rights to ijob, so long as such rights relate to any
of said Assets.
3.7 There are no actions, suits, notices, proceedings,
orders, arbitrations or investigations (whether HT is plaintiff,
defendant, claimant or subject) pending or, to the best knowledge
of HT and the Shareholders, threatened against or affecting the
Assets, at law or equity, or before or by any federal, state,
municipal or other governmental departments, commission, board,
bureau, agency or instrumentality, domestic or foreign, (and to
the best knowledge of HT and its Shareholders, there exists no
set of facts which would give rise to any of the foregoing).
3.8 The consummation of the transactions contemplated by
this Agreement will not violate, or require compliance with, the
bulk sale or bulk transfer law of any jurisdiction.
3.9 That neither of them have dealt with any person, firm
or corporation who is or may be entitled to a broker's
commission, finder's fee or similar payment from the other party
for arranging the transactions contemplated herein or introducing
the parties to each other.
3.10 The persons signing below on behalf of the respective
parties represent and warrant that they have the authority to
bind the party on whose behalf they have executed this Agreement.
3.11 In the event that the Closing does not take place
contemporaneously with the execution of this Agreement, all of
the covenants, warranties and representations set forth in this
section 3 or elsewhere in this Agreement shall also be true as of
the Closing and HT, Xxxxxxxx and Xxxxxxx shall give ijob a
written statement to that effect at Closing.
4. Transfer of Documents; Further Assurances. At Closing,
HT will transfer and deliver to ijob all of its right, title and
interest in and to the Assets, and will also then deliver to ijob
all such assignments, bills of sale and instruments of
conveyance, in form and substance reasonably satisfactory to
ijob, and transfer as shall be necessary and effective to
transfer to and vest in ijob good and valid title to all of said
Assets. At the request of ijob after the Closing, HT will
execute and deliver any further instruments of conveyance and
transfer or confirmation thereof and will take such other action
as may reasonably be requested by ijob in order to make effective
and to transfer of the Assets contemplated by this Agreement.
5. Indemnification.
5.1 By HT, Xxxxxxxx and/or Xxxxxxx. HT, Xxxxxxxx and
Xxxxxxx jointly and individually agree to indemnify, defend, and
hold ijob harmless from and against and in respect to any and all
damages, losses, deficiencies, liabilities, out-of-pocket costs,
attorney fees and expenses, claims, actions, suits or other
proceedings resulting from, related to or arising out of (i) any
breach of any covenant, warranty or representation of HT,
Xxxxxxxx and/or Xxxxxxx in this Agreement, (ii) any
misrepresentation in or omission from any schedule, certificate
or other document furnished or to be furnished to ijob under this
Agreement, and (iii) any breach by HT, Xxxxxxxx or Xxxxxxx of any
of their obligations or duties under the licenses or other
agreements identified on Exhibit C hereto or under any other
agreements otherwise executed or otherwise entered into by HT,
Xxxxxxxx or Xxxxxxx.
5.2 By ijob. ijob agrees to indemnify, defend, and hold
HT, Xxxxxxxx and Xxxxxxx harmless from and against and in respect
to any and all damages, losses, deficiencies, liabilities, out-of-
pocket legal costs, attorney fees and expenses, claims, actions,
suits or other proceedings resulting from, related to or arising
out of the operations of ijob after Closing except to the extent
that the same may be covered by or relate to or arise out of the
provisions of Section 5.1 hereof and/or the obligations of HT,
Xxxxxxxx and/or Xxxxxxx thereunder.
6. Non-Competition; Confidentiality; Non-Solicitation. In
order to induce ijob to enter into this Agreement and the
transactions contemplated hereby, HT, Xxxxxxxx and Xxxxxxx agree
as follows:
6.1 Non-Competition. HT, Xxxxxxxx and Xxxxxxx agree that
for so long as HT is eligible to receive any Distributable
Amounts from ijob pursuant to Section 2.3 hereof or any
subsection(s) thereof and for a period of two (2) years
subsequent thereto, none of them will compete directly or
indirectly (whether as proprietor, partner, principal,
stockholder, agent, consultant, adviser, employee or otherwise)
with the activities of ijob or solicit existing customers of
ijob. The restrictions on Xxxxxxxx set forth in this section
6.1 are in addition to, and not in lieu of, any restrictions
placed upon him in said Employment Agreement.
6.2 Confidentiality Agreement. HT, Xxxxxxxx and Xxxxxxx
agree to hold all business information and data of ijob as the
confidential and proprietary property of ijob. Moreover, except
to the extent set forth in the license agreement issued pursuant
to Section 2.4 hereof, they and each of them agree that they
will not make any voluntary or independent use of any
confidential, trade secret, trademark, copyrightable, patented or
patentable, or other proprietary business information of ijob,
including, but not limited to, customer lists, computer
programs, databases, pricing formulae, designs, research files,
or any other related information, or attempt to procure any
rights adverse to ijob in any intellectual property as listed
herein.
7. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto concerning the
subject matter thereof. No prior or contemporaneous
representations, inducements, promises, or agreements, oral or
otherwise, between the parties with reference thereto shall be of
any force or effect.
8. Modification. This Agreement may not be modified,
waived, amended, in whole or in part, without the written consent
of each of the parties hereto.
9. Arbitration. Any controversy or claim arising out of
or relating to this Agreement, or its breach, or its validity or
interpretation, except claims for injunctive relief and claims
involving necessary third parties who refuse to participate,
shall be settled by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). The location for the
arbitration shall be in Oklahoma County, Oklahoma. Such
arbitration shall be heard and determined by a panel of three (3)
arbitrators in accordance with the then current rules or
regulations of the AAA relating to commercial disputes. One
arbitrator shall be appointed by each party to serve on the
panel. One neutral arbitrator shall be appointed by the AAA and
shall serve as chair-person of the three arbitrator panel. Such
neutral arbitrator shall be an attorney with experience in
handling disputes relating to commercial and/or corporate
litigation disputes. The arbitration award shall be binding on
the parties and may be enforced in any court of competent
jurisdiction. The prevailing party in such arbitration shall be
entitled to recover its reasonable attorney fees and costs
incurred in such arbitration proceeding.
10. Binding. This Agreement is binding on, and inures to
the benefit of ijob, HT, Mitchell, Xxxxxxx and their respective
heirs, successors and assigns to the extent permitted by said
Agreement.
11. Captions. The captions of the various sections or
paragraphs used in said Agreement are for convenience only, and
they are not intended to be any part of the body or text of said
Agreement, nor shall they be utilized in construing any of the
provisions thereof.
12. Attorney Fees. In the event that litigation is
instituted between the parties in connection with any controversy
or dispute arising out of or relating to said Agreement, the
prevailing party in such litigation shall be entitled to recover
its reasonable attorney fees and costs.
13. Severability. If any provision of said Agreement shall
be deemed invalid or unenforceable, the remaining provisions of
said Agreement shall not be affected thereby and each remaining
provision shall be valid and enforceable to the fullest extent
permitted by law.
14. Nonwaiver. Any waiver by a party of any breach of any
provision of this Agreement shall not be construed as a waiver of
any continuing or succeeding breach of such provision, a waiver
of that provision itself or a waiver of any other right(s) under
this Agreement.
15. Notice. All communications and notices provided for or
permitted in this Agreement shall be made in writing and shall be
personally delivered, mailed by certified mail, postage prepaid,
or sent by overnight courier to the party at its address first
specified above or to such other address as either party shall
have communicated by written notice to the other.
16. Survival. Unless otherwise specified all of the terms
of this Agreement shall survive the Closing .
ijob, INC. HUMAN TECHNOLOGIES, INC.
By: /s/Xxxxxx Xxxxx By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxx
Its: Vice President Its: President
Date: June 12, 1997 Date: June 12, 1997
/s/ Xxx Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
XXX XXXXXXX XXXXX XXXXXXXX
June 12, 1997 June 12, 1997
Date Date
Applied Intelligence Group, Inc. (consenting and agreeing only as
to the terms of this Asset Purchase Agreement applicable to
Applied Intelligence Group, Inc. and in this regard AIG warrants
that it is a corporation in good standing under the laws of the
state of Oklahoma.)
By: /s/ Xxxxxx X. Xxxxxx
Its: President
Date: June 12, 1998
EXHIBIT A: ASSETS
1. All of the software programs known as "XX0", "XX0", "Xxx-0"
and "ijob-Internet", including, without limiting the
generality of the foregoing, all original technical and
instructional documentation relating thereto .
2. All rights held by Human Technologies, Inc ("HT"), Xxxxx
Xxxxxxxx (`Xxxxxxxx") and/or Xxx Xxxxxxx ("Xxxxxxx") to the
Source and Executable Code of Programs listed in paragraph
1.
3. Assignment of all copyright powers and benefits related to
the software programs listed in paragraphs 1 and 2 held by
HT, Xxxxxxxx and/or Xxxxxxx including, but not limited to,
the right to produce, sell, modify, distribute, license, and
copy in full or part those items described in paragraphs 1
and 2. .
4. All "ijob" and "xxxx.xxx" and HT-1, HT-2, ijob-Internet and
Hal-1 related trademarks, trade names, sales marks, logos,
marketing concepts, and trade dress of the ijob business
concept.
5. Assignment of full ownership rights, including copyright and
other intellectual property rights, in all advertising,
instructional, or technical documents, whether printed or
computerized, relating to the software programs listed in
paragraphs 1 and 2. .
6. Legal title and ownership, or assignment where appropriate,
of any and all Internet properties, including, but not
limited to, domain names, addresses, unique URL's, and
service agreements relating to software programs listed in
paragraphs 1 and 2.
7. Assignment by HT, Xxxxxxxx and Xxxxxxx to ijob of all rights
to enforce and/or recover, for infringement or other legal
claims, past, present, or future, against any third party,
any of the rights or items transferred or assigned pursuant
to this Asset Purchase Agreement.
8. The goodwill of HT's, Xxxxxxxx'x and Xxxxxxx'x business
efforts related to the ijob business concept, including the
exclusive right to solicit the former clients or prospective
clients of HT in relation to the ijob business concept or
ijob services transferred or assigned pursuant to this Asset
Purchase Agreement.
9. Any and all rights to apply for, acquire, or retain the
benefit of any patentable subject matter derived from or
related to the ijob business concept, that at any time was
possessed by HT, in relation to the software programs
transferred or assigned pursuant to this Asset Purchase
Agreement.
Exhibit B.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") made and
entered into between ijob, Inc. ("ijob"), with a business address
of 00000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 and Human
Technologies, Inc. ("Customer"). Ijob and Customer agree that
the following terms and conditions shall govern in all cases when
Ijob furnishes Program Products (as hereinafter defined) to
Customer:
1. DEFINITIONS.
1.1 "Agreement" means this Agreement, including any exhibits,
amendments, supplements, and addenda. The term "Agreement" also
includes any future written amendments, modifications or
supplements made pursuant to and in accordance with this
Agreement.
1.2 "Program Product" means the computer software programs,
documentation, interfaces and related code identified in Exhibit
A attached hereto. This may include software from third parties
from whom Ijob has obtained a right to use and distribute.
1.3 "Executable Code" means computer programs assembled or
compiled in magnetic or electronic binary form on software media,
which are readable and usable by machines but not generally
readable by humans without reverse assembly, reverse compiling,
or reverse engineering.
1.4 "Source Code" means computer programs written in
higher-level programming languages, sometimes accompanied by
English language comments which are intelligible to trained
programmers and which may be translated into Executable Code for
operation on computer equipment through the process of compiling.
1.7 "Documentation" means printed instructions, manuals,
descriptions, on-line help and diagrams pertaining to the Program
Products described in Exhibit A.
2. LICENSE. ijob hereby grants and the Customer accepts a
nontransferable, non-assignable and non-exclusive license to use
the Program Products listed on Exhibit A for its internal
business purposes and, subject to the terms, covenants,
conditions and limitations of this Agreement, to sublicense the
same to third parties; provided however and notwithstanding
anything to the contrary, neither Customer nor any of its
sublicensees may use the Program Products to compete either
directly or indirectly with ijob in the providing of Internet
based employment referral, recruiting and testing services;
provided however, HT may continue to use and develop its
expatriate selection and testing program known as "ipatriot" to
the extent that such program is solely used for the selection and
testing of employees to be sent or transferred overseas by their
employer. Customer may not grant a license to or otherwise
transfer the Program Products to any third party who competes
with ijob in the providing of Internet based employment
referral, recruiting and testing services. The license granted
hereunder extends to the United States and its Territories only.
To the extent that HT grants licenses as permitted by this
Agreement, it is not obligated to pay any royalties or additional
license fees to ijob therefore. The Customer shall shall take
all reasonable actions to prevent others from reverse engineering
the Program Products, decompiling or disassembling any code, or
engineering derivative products which duplicate the unique
qualities of the Program Products. All copies made by the terms
of this Agreement and derivative works based on the Program
Products are subject to the terms and conditions of this
Agreement and shall state on such copy(s) that they are, or
include, the property of ijob, and that such rights of ijob are
protected under the copyright, trade secret and confidentiality
laws of the United States, and such other notices as required by
Ijob.
3. TERM. This Agreement is perpetual unless earlier terminated
in accordance with the provisions of this Agreement.
4. CONSIDERATION. This License is granted pursuant to the
terms of an Asset Purchase Agreement executed by and between ijob
and Customer as of the 12th day of June, 1997.
5. TERMINATION.
5.1 Upon termination of this Agreement, Customer shall
immediately discontinue use of the Program Products. Within one
(1) week after the date of termination of this Agreement,
Customer will deliver to Ijob the original and all copies,
including partial copies and modifications, of the Program
Products and related documentation or certify in writing to Ijob
that all such Program Products and related documentation has been
destroyed by Customer and have been fully removed from any
computer(s) upon which they have been installed.
5.2 This Agreement shall immediately terminate without notice,
to the extent permitted by applicable law in the jurisdiction or
jurisdictions in question, if Customer files a petition in
bankruptcy (or is the subject of an involuntary petition in
bankruptcy that is not dismissed within sixty (60) days after the
effective filing date thereof); or is or becomes insolvent; or
admits of a general inability to pay its debts as they become
due.
5.3 This Agreement shall terminate immediately upon any of the
following events, without the need for further action on the part
of Ijob, (i) if Customer breaches any of its obligations under
this Agreement relating to Ijob's intellectual property rights or
confidentiality in or to the Program Products or relating to
export controls of the Program Products or (ii) if Customer fails
to cure any other obligation it owes to Ijob pursuant to the
terms of this Agreement within thirty (30) days after receipt of
written notice thereof from Ijob.
6. OWNERSHIP. Nothing in this Agreement shall be deemed to
give Customer ownership rights in or title to all or any portion
of the Program Products. Customer acknowledges that the Program
Products are proprietary to ijob, or third parties from whom Ijob
has obtained a right to use and distribute, and that the sole and
exclusive title, right and interest in and to the Program
Products and all related documentation and any alterations, new
releases, new versions or any other modifications or
Enhancements, or Updates of the Program Products and any copies
thereof and any and all documentation relating thereto are and
shall remain in Ijob, or such third parties from whom Ijob has
obtained a right to use and distribute the same. All applicable
legal and statutory rights in the Program Products, Source code,
Executable code, patents, and copyrights are and shall remain the
property of Ijob, or third parties from whom Ijob has obtained a
right to use and distribute the same. Nothing in this Agreement
shall preclude Ijob from developing Program Products or
Documentation which are competitive, irrespective of their
similarity, to Program Products or Documentation which might be
produced for or provided to Customer pursuant to this Agreement.
7. CONFIDENTIALITY. The Program Products contains confidential
information protected by copyright, trade secret and trademark
laws. The Customer may not remove or alter ownership and
copyright notices or such other notices on or in the media or the
Program Products. Customer shall take all reasonable steps to
protect and maintain the confidentiality of the Agreement and the
Program Products. The Customer shall not disclose this Agreement
or any portion of the Program Products to any person other than
its own employees who have a need to use such Program Products in
furtherance of the Customer's business. The Customer shall
advise each of its employees with any such access of such
confidentiality requirements. The provisions of this Agreement
relating to confidentiality shall survive the termination of this
Agreement. Customer shall take or cause to be taken all
reasonable precautions to hold in confidence, and to prevent the
disclosure or communication to third parties of, and shall not
disclose or communicate to third parties, without Ijob's prior
written consent, all information, data and know-how pertaining to
the design and operation of the Program Products, including, but
not limited to, Source and Executable Code, tapes, machine
listings and flowcharts and documentation relating thereto.
8. DISCLAIMER OF ALL WARRANTIES. THE PROGRAM PRODUCTS ARE
DELIVERED TO CUSTOMER AS IS, WHERE IS. IJOB DISCLAIMS ANY AND
ALL WARRANTIES, OR CONDITIONS, OR REPRESENTATIONS (EXPRESS OR
IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PROGRAM PRODUCTS
OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR
CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE (WHETHER OR NOT IJOB KNOWS, HAS REASON
TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY
SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF
CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING, OR BY
COURSE OF PERFORMANCE UNDER ANY OTHER CONTRACT BETWEEN THE
PARTIES HERETO. IN ADDITION, IJOB EXPRESSLY DISCLAIMS ANY
WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH
RESPECT TO THE PROGRAM PRODUCTS OR ANY PART THEREOF.
9. IN NO EVENT SHALL IJOB BE LIABLE TO CUSTOMER NOR TO ANY
PERSON CLAIMING RIGHTS DERIVED FROM CUSTOMER'S RIGHTS FOR ANY
DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, INCIDENTAL, CONSEQUENTIAL AND
EXEMPLARY DAMAGES..
10 Ijob and Customer each acknowledge that the provisions of
this Agreement were negotiated to reflect an informed, voluntary
allocation between them of all risks (both known and unknown)
associated with the transactions associated with this Agreement.
The warranty disclaimers and limitations in this Agreement are
intended to limit the circumstances of liability. The remedy
limitations, and the limitations of liability, are separately
intended to limit the forms of relief available to Customer.
11. OTHER PROVISIONS.
11.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Ijob and Customer concerning the subject matter
hereof. No prior or contemporaneous representations,
inducements, promises, or agreements, oral or otherwise, between
Ijob and customer with reference thereto will be of any force or
effect.
11.2 MODIFICATION. No modification, amendment or waiver of any
of the provisions of this Agreement, and no prior approval
required by this Agreement, shall be effective unless in writing
signed by the parties. Writings signed on behalf of Ijob shall
be signed by an officer of the corporation. Any provision of
Customer's purchase order or other request for products or
services under this Agreement that is in any way inconsistent
with or in addition to the terms and conditions of this
Agreement, shall not bind Ijob. Ijob's failure to object to any
such provision shall not be construed as a waiver of the terms
and conditions of this Agreement nor as acceptance of any such
provision.
11.3 CHOICE OF LAW. This Agreement shall be governed by the laws
of the State of Oklahoma and the venue of any action for
enforcement of any of the terms covenants or conditions of this
Agreement, or otherwise, shall be in the State of Oklahoma.
11.4 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or its breach, or its validity or
interpretation, except claims for injunctive relief and claims
involving necessary third parties who refuse to participate,
shall be settled by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). The location for the
arbitration shall be in Oklahoma County, Oklahoma. Such
arbitration shall be heard and determined by a panel of three (3)
arbitrators in accordance with the then current rules or
regulations of the AAA relating to commercial disputes. One
arbitrator shall be appointed by each party to serve on the
panel. One neutral arbitrator shall be appointed by the AAA and
shall serve as chair-person of the three arbitrator panel. Such
neutral arbitrator shall be an attorney with experience in
handling disputes relating to software license agreements. The
arbitration award shall be binding on the parties and may be
enforced in any court of competent jurisdiction. The prevailing
party in such arbitration shall be entitled to recover its
reasonable attorney fees and costs incurred in such arbitration
proceeding.
11.5 ASSIGNMENT. Customer may not assign this Agreement or the
rights and obligations created hereunder without the prior
written consent Ijob.
11.6 BINDING. This Agreement is binding on, and inures to the
benefit of, Ijob, the Customer, and their respective successors
and assigns to the extent permitted by this Agreement.
11.7 COMPLIANCE WITH LAWS. Each party shall comply with all
applicable laws and regulations.
11.8 FORCE MAJEURE. Ijob shall not be responsible for failure of
performance due to causes beyond its control, including, but not
limited to, accidents, acts of God, labor disputes, or the
actions of any Government agency.
11.9 CAPTIONS. The captions of the various paragraphs herein are
for convenience only, and they are not intended to be any part of
the body or text of this Agreement, nor are they intended to be
referred to in construing any of the provisions hereof.
11.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, any of which shall be deemed to be an
original.
11.11 INDEPENDENT CONTRACTORS. Ijob and the Customer are
strictly independent contractors. Neither party has the right to
bind the other in any manner, and nothing in this Agreement shall
be interpreted to make either party the agent or legal
representative of the other or to make the parties joint
venturers or partners.
11.12 JOINT EFFORTS. This Agreement has been prepared and
negotiations in connection therewith have been carried on by the
joint efforts of the parties to this Agreement. This Agreement
is to be construed simply and fairly and not strictly for or
against any of the parties to this Agreement.
11.13 ATTORNEY FEES. In the event that litigation or
arbitration is instituted between the parties in connection with
any controversy or dispute arising from, under or related to this
Agreement the prevailing party in such litigation shall be
entitled to recover its reasonable attorney fees and costs,
including without limitation, deposition costs relating to such
litigation and further including, without limitation, any such
attorney fees or costs incurred as a result of any appeal related
to such litigation.
11.14 AUDIT. In furtherance of any and all of Ijob's rights
under this Agreement ijob may, at its expense and without notice
to the Customer, but during the Customer's regular business
hours, enter upon the Customer's premises to audit the number of
copies of Program Products made under this Agreement and the
Customer's compliance with the other provisions of this
Agreement.
11.15 SEVERABILITY. If any provision of this Agreement shall
be invalid or unenforceable, the remaining provisions of this
Agreement shall not be affected thereby and each remaining
provision shall be valid and enforceable to the fullest extent
permitted by law.
11.16 NONWAIVER. The failure of Ijob at any time to require
performance by Customer of any provision of this Agreement shall
in no way affect the right of Ijob to require performance of that
provision. Any waiver by Ijob of any breach of any provision of
this Agreement shall not be construed as a waiver of any
continuing of succeeding breach of such provision, a waiver of
that provision itself or a waiver of any right under this
Agreement.
11.17 TRADEMARK USAGE. Customer shall not make any use of
any of Ijob's intellectual property, including but not limited
to, trademarks, service marks, trade names, or corporate name for
any reason or purpose without the prior express written consent
of Ijob.
11.18 NOTICE. All communications and notices provided for or
permitted hereunder shall be effective when made in writing and
shall be personally delivered, mailed by certified mail, postage
prepaid, or sent by overnight courier to the addresses set forth
below or to such other address as either party shall have
communicated by written notice to the other.
The parties agree and acknowledge that they have read this
agreement, understand it, and that they shall be bound by its
terms and conditions. The "Effective Date" of the Agreement
shall be the later of the dates shown below.
ijob, INC. HUMAN TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxx
Its: Vice President Its: President
Date: June 12, 1997 Date: June 12, 1997
Exhibit C.
1. Thermalloy Proposal Commencing on or about May 1, 1997
2. Stillwater Medical Center Sales Agreement dated on or about
March 28, 1997
3. Quest Medical Contract dated on or about May 29, 1996
4. Neighbor Executive Coffee Proposal dated February 27, 1996
5. Xxx Xxxxx Furniture Sales Agreement dated on or about April
1, 1996
6. License Agreement dated June 25, 1996
7. Xxxx Xxxxx Enterprises Contract dated January 15, 1997
8. Xxxxxxx Companies, Inc. Proposal dated September 10, 1997
9. Childers Contruction Co. with a reference date of April 15,
1996
10. Accord Human Resources Sales Agreement dated August 15, 1996
11. BCTI License Agreement dated April 10, 1997
