LICENSE AGREEMENT
Exhibit
10.1
LICENSE AGREEMENT | |||
Firstwave Technologies, Inc. | Overlook III, Suite 1000 | 0000 Xxxxx Xxxxx Xxxx | Xxxxxxx, XX 00000 XXX |
This
License Agreement (“Agreement”), entered into between M1 Global Solutions, Inc.
(“Licensee”) and Firstwave Technologies, Inc. (“Firstwave”), covers the
following products to be licensed by Licensee: Firstwave CRM 2005.1 data
model
and
associated documentation, which
has
been installed on a server in Licensee’s possession and is more fully described
in the Appendix attached hereto and incorporated herein by this reference
(“Program Products” or “Licensed Program”).
1. |
LICENSE
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1.1
|
Grant
of License. Firstwave
grants to Licensee a nonexclusive, worldwide, perpetual, irrevocable,
fully paid (upon payment of the fees set forth in Section 3.1)
and
non-assignable (except pursuant to a change of control as described
in
Section 9.1), license, with subljcensing rights, to: (i) use the
Program
Product(s); (ii) make copies of the Program Product(s), and (iii)
modify
Program Products, and make derivative works therefrom as necessary
(in
Licensee’s discretion) for Licensee’s use related to the license granted
herein. The foregoing license shall include such rights with respect
to
the Program Products as described above and shall apply to all
program
code, documentation, training materials, and enhancements embodying
or
related to the Program Products, and shall.further include the
right to
practice any patent rights incorporated in or associated with such
Program
Products or necessary for their use or
modification.
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1.2
|
Restrictions.
Subject to Section 1.3, Firstwave reserves all rights not expressly
granted herein. Except as set forth in this Agreement, no express
or
implied license or right of any kind is granted to Licensee regarding
the
Program Products.
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1.3
|
Firstwave
will have no rights to any of the derivative works produced by
Licensee
from the Licensed Program. Licensee shall own all right, title
and
interest in and to such derivative works and/or to any developments
or
inventions it develops utilizing the Licensed Program (subject
to
Firstwave’s ongoing rights in the Licensed Program itself).
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2. |
DELIVERY,
INSTALLATION AND SUPPORT
SERVICES
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2.1
|
Delivery.
Firstwave
has electronically delivered the Licensed Program to the Licensee
and
Licensee accepts the Program as delivered. .
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2.2
|
Support
Services.
Upon request and payment therefore by Licensee, Firstwave agrees
to
provide support services in accordance with the Support Agreement
which
may be separately executed by the parties.
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3. |
FEES
AND PAYMENT
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3.1
|
Fees.
Licensee shall be entitled to the Program Products upon payment
of a one
time license fee of $150,000 due with the execution of this Agreement.
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3.2
|
Taxes.
The
amounts due to Firstwave are net amounts to be received by Firstwave,
exclusive of certain duties, tariffs and assessments imposed or
levied by
any government or governmental agency, and are not subject to offset
or
reduction because of any costs, expenses, taxes, duties, withholdings,
assessments, or liabilities incurred by Licensee or imposed on
Firstwave
in the performance of this Agreement or otherwise due as a result
of this
Agreement. Any claimed exemption from or self payment of such taxes,
duties or tariffs must be supported by proper documentary evidence
delivered to Firstwave.
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4. |
TITLE,
CONFIDENTIALITY AND
NONDISCLOSURE
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4.1
|
Ownership.
Licensee
acknowledges that Firstwave owns all right, title and interest
in or
represents that it has rights to sublicense the Licensed Program,
including, without limitation, all worldwide copyrights, trade
secrets,
trademark, patents, confidential and proprietary rights therein.
Nothing
herein gives Licensee any right, title or interest in the Licensed
Program
other than Licensee’s limited express rights as set forth in Section 1 of
this Agreement. Notwithstanding the foregoing, as set forth in
Section
1.3, Firstwave will have no rights to any of the derivative works
produced
by Licensee from the Licensed
Program.
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4.2 |
Confidentiality
and Nondisclosure. Licensee
acknowledges that the Licensed Program contains Proprietary Information
(defined below) belonging to Firstwave, and Licensee and its Users
shall
keep the Licensed Program confidential and shall not disclose or
otherwise
reproduce, distribute, transmit, transfer or disclose the Proprietary
Information, directly or indirectly, in any form, by any means
or for any
purpose, to anyone other than Licensee’s licensed Users. Licensee must not
remove or destroy any proprietary markings of Firstwave. Licensee
shall
not permit anyone except its licensed Users to have access to the
Licensed
Program. Except for archive purposes, Licensee shall not make or
permit
others to make copies of or reproduce any part of the Licensed
Program in
any form without the prior written consent of Firstwave. Licensee
will
exercise at least the same standard of care in protecting the
confidentiality of the Firstwave Proprietary Information as it
does with
its own proprietary information. Licensee shall employ reasonable
measures
to ensure that Firstwave Proprietary Information is not made available
or
disclosed by Licensee or by any of its Users to any other party.
Under no circumstances shall Licensee disclose or disseminate Firstwave
Proprietary Information to a competitor of Firstwave. Licensee
shall hold
Firstwave harmless against any loss, cost, expense, claim or liability
resulting from Licensee's breach of this non-disclosure obligation.
The
non-disclosure restrictions herein shall apply during the term
hereof and
for a period of five (5) years thereafter; provided that the restrictions
shall continue to apply thereafter with respect to any Trade Secret
information, for so long as such information retains its trade
secret
status. Upon termination of this Agreement, Licensee shall deliver
to
Firstwave all material furnished by Firstwave pertaining to the
Licensed
Program and shall also warrant in writing that all
copies
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thereof
have been returned to Firstwave or destroyed. For purposes hereof, “Proprietary
Information” includes Confidential Information and Trade Secrets; “Confidential
Information” means information that is provided to or obtained by Licensee that
is valuable to Firstwave and not generally known by the public, but which
does
not rise to the level of a Trade Secret; and “Trade Secret” means information
which derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use.
5. |
WARRANTY,
REMEDY, INDEMNIFICATION AND
DISCLAIMER
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5.1
|
Limited
Warranties. Firstwave
warrants to Licensee that: (i) Firstwave has the right to grant
the
license described in this Agreement; and (ii) for a period of ninety
(90)
days from the date of the first delivery of the Licensed Program
that the
Licensed Program will operate substantially in accordance with
the
Documentation published by Firstwave for the Licensed Program and
does not
infringe a valid U.S. copyright, patent or trade secret, provided
that
Licensee has given Firstwave written notice of any performance
failure
within the ninety (90) day warranty
period.
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5.2
|
Remedy
and Indemnification. Licensee’s
sole and exclusive remedy for any claim of breach of the limited
warranty
set forth in Section 5.1 is that Firstwave shall either modify
or replace
the nonconforming Licensed Program so that the Licensed Program
substantially conforms to such Documentation. Firstwave will defend,
indemnify and hold harmless Licensee against claims that the Program
Product(s) infringe a valid U.S. copyright, patent or trade secret.
If
Firstwave determines that the Program Product is likely to or if
the
Program Product is determined in a final, non-appealable judgment
by a
court of competent jurisdiction to infringe a U.S. copyright, patent
or
trade secret, Firstwave will have the option, in Firstwave's sole
discretion, to elect one or more of the following: (i) replace
such
Program Product, or (ii) modify such Program Product to make it
non-infringing. The right of indemnification set forth in this
section
only applies if: (a) Licensee provides Firstwave written notice
of such
claim or cause of action upon which Licensee intends to base a
claim of
indemnification hereunder within thirty (30) days of the claim
or cause of
action (or longer so long as not prejudicial to Firstwave’s rights or
defense with respect to the claim); (b) Firstwave is given sole
control of
the defense and all related settlement negotiations relating to
such claim
or action; (c) Licensee provides reasonable assistance and cooperation
to
enable Firstwave to defend the action or claim hereunder; (d) Licensee
refrains from making prejudicial statements associated with such
action or
claim without the prior written consent of Firstwave; and (e) the
claim or
cause of action is not based on changes or modifications made or
specifications provided by Licensee or a combination of the Program
Product with other third party products. Firstwave shall have no
liability
for any claim based on improper use or modification of the Program
Product(s) other than as specified herein or for the use of third
party
software either independently or in association with the Program
Product.
This Agreement states Firstwave's entire liability and Licensee's
exclusive remedy for any claim of infringement.
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5.3
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Exclusions.
The
warranties given under Section 5.1 and the remedies and indemnification
provided under Section 5.2 will become void and of no effect in
the event
that Licensee without the prior written consent of Firstwave: (i)
makes
any modification or alteration to the Program Product(s) or any
other
software program necessary for the operation of the Program Product(s)
on
the technical platform as described in the documentation (the “Technical
Platform”), and absent such modification or alteration, no breach would
exist; or (ii) transfers the Program Product(s) to any computer
system
other than the Technical Platform or as may be permitted hereunder.
Firstwave does not warrant that the Program Product(s) will meet
Licensee’s requirements, that the Program Product(s) will operate in the
combinations which Licensee may select for use, that the operation
of the
Program Product(s) will be uninterrupted or error-free, or that
all
Program Product errors will be corrected. In the event Licensee
notifies
Firstwave of an error and after investigation Firstwave determines
the
error to be caused by hardware and/or software not sold or licensed
to
Licensee by Firstwave, or by incorrect procedures used by Licensee
or a
third party, Licensee shall reimburse Firstwave at Firstwave’s then
current rate for all costs incurred in such investigation.
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5.4
|
Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, NO WARRANTY, CONDITION, UNDERTAKING
OR TERM, EXPRESS, OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
CONDITION,
QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR
A
PARTICULAR PURPOSE OF THE LICENSED PROGRAM PROVIDED HEREUNDER OR
AS TO ANY
THIRD PARTY HARDWARE OR SOFTWARE IS GIVEN OR ASSUMED BY FIRSTWAVE
AND ALL
SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY
EXCLUDED.
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6. |
LIMITATION
OF LIABILITY
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6.1
|
General
Limitations. Each
party
acknowledges and agrees that in no event shall the other, its
subsidiaries, or any of their respective officers, directors, employees,
shareholders, agents or representatives, be liable to Licensee
for any
indirect, incidental, consequential, or exemplary damages or loss
of
goodwill caused or alleged to be caused by any Licensed Program
provided
hereunder or the performance or non-performance of any Licensed
Program or
services or other obligation hereunder, including the failure of
essential
purpose, even if such party has been notified of the possibility
or
likelihood of such damages occurring. Nothing in this Agreement
shall be
construed to impose liability on Firstwave for acts or omissions
of the
manufacturer, vendor or licensor of
the non-Firstwave software. Firstwave shall not be liable for any
damages
caused by delay in shipment, installation or furnishing of any
Licensed
Programs, software or services under this Agreement, and in no
event shall
either party be liable for loss of revenues, savings or profits.
No action
arising out of any claimed breach of the Agreement or otherwise
relating
hereto may be brought more than one (1) year after the cause of
action
arises. The aggregate liability for claims arising hereunder or
otherwise
related hereto shall under no circumstances exceed the amount paid
to
Firstwave by Licensee hereunder. The foregoing limitations of liability
set forth in this Section 6.1 shall not apply to the infringement
indemnity set forth in Section 5.2.
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6.2
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Allocation
of Risks. Licensee
is a sophisticated purchaser and acknowledges and agrees that the
allocation of risks in this Agreement are reflected in the fees
and other
charges provided under this Agreement, that Firstwave is unable
to test
the Program Product(s) under all possible circumstances, that Firstwave
cannot control the manner in which Licensee shall use the Program
Product(s), and that the allocation of risks under this Agreement
are
reasonable and appropriate under the
circumstances.
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7.
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LICENSEE’s
RESPONSIBILITIES. As
between Licensee and Firstwave and subject to the obligations of
License
and Firstwave as otherwise specified in this Agreement, Licensee
shall be
solely responsible (at its own expense) for the
following:
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a. |
Selection
of software and other products, including the Program Product(s),
to
achieve Licensee's intended
results;
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b. |
The
use, operation, maintenance and support of the Technical Platform
and its
other hardware, peripherals, third party operating systems, and
third
party software;
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c. |
The
results obtained from use and operation of the Program
Product(s);
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d. |
Providing
and maintaining the appropriate Technical Platform for the Program
Product(s) and maintaining back-up and disaster recovery procedures
and
facilities; and
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e. |
All
data entry and loading of data and maintaining back-up or archival
copies
thereof.
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8. |
TERM
AND TERMINATION
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8.1
|
Term.
The
term of this Agreement shall commence on the Effective Date as
and shall
continue in perpetuity unless earlier terminated as provided
herein.
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8.2
|
Termination.
Either
party may terminate this Agreement at any time upon giving written
notice
as follows: (i) upon mutual agreement of the parties; (ii) in the
event
that the other party fails to discharge any obligations or remedy
any
material default under this Agreement for a period of sixty (60)
days
after the notifying party has given the other party written notice
specifying such material failure or default, and such failure or
default
is not cured during this sixty (60) day
period.
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8.3
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Post-Termination
Obligations. Upon
termination of this Agreement for any reason, all rights and licenses
granted by Firstwave hereunder shall immediately cease, and Licensee
shall
immediately return to Firstwave all Firstwave property, including,
without
limitation, the Program Product(s) and all Proprietary Information
of
Firstwave, and all copies thereof. Upon return of such materials,
Licensee
shall provide Firstwave with a signed written statement certifying
that it
has returned all Firstwave property to Firstwave and complied with
its
post-termination obligations.
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8.4
|
Survival
of Terms. Upon
termination of this Agreement, the provisions of this Agreement
providing
for payment of fees and expenses to Firstwave (Section 3), Title,
Confidentiality and Nondisclosure (Section 4), Limitation of Liability
(Section 6), Post-Termination Obligations (Section 8.3), the General
Provisions (Section 9), and other applicable provisions of this
Agreement
concerning the ongoing interests of the parties shall continue
and survive
in full force and effect.
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9. |
GENERAL
PROVISIONS
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9.1
|
Assignment.
This
Agreement and all rights and obligations may not be assigned in
whole or
in part by either party without the prior written consent of the
other,
except the rights and obligations of either party may be assigned
to
another entity in connection with a reorganization, merger, consolidation,
acquisition or other restructuring involving all or substantially
all of
the voting securities and/or assets of the assigning
party.
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9.2
|
Compliance
with Laws. Licensee
will strictly comply with all applicable laws and regulations of
the
countries in which the Licensed Programs are licensed and relating
in any
way to Licensee’s performance under this Agreement.
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9.3
|
Dispute
Resolution. The
parties shall first attempt to settle a dispute through the chief
operating officers of the respective entities. If the dispute is
not
resolved by these parties, both parties agree to submit to binding
arbitration. In such case, both parties agree to the appointment
of three
(3) arbitrators, with one arbitrator selected by each party, and
the third
selected by the American Arbitration Association (“AAA”). The arbitration
shall be conducted in Atlanta, GA in accordance with the rules,
regulations and procedures of the AAA, and the decision of the
arbitration
panel shall be final and binding on both parties.
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9.4
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Export.
In
the event this Agreement provides for the export of any of the
Program
Product(s) outside the United States, Licensee shall be solely
responsible
for compliance with all applicable United States export laws, rules
and
regulations. Licensee agrees to keep such books and records and
to take
other actions as may be required by such applicable laws, rules
and
regulations.
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9.5
|
Force
Majeure. Neither
Firstwave nor Licensee shall be liable for failure to perform any
of its
respective obligations hereunder if such failure is caused by an
event
outside its reasonable control, including, without limitation,
an Act of
God, war, or natural disaster.
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9.6 |
Governing
Law. This
Agreement and all agreements, addenda, amendments, supplements
and
schedules hereto shall be governed by and construed in accordance
with the
laws of the State of Georgia, USA without regard to its rules regarding
conflict of laws. Subject to the foregoing provisions, the Licensee
hereby
irrevocably consents to the jurisdiction of the state and federal
courts
in the State of Georgia, U.S.A.
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9.7 |
Independent
Parties. This
Agreement shall not be construed to create any employment relationship,
partnership, joint venture or agency relationship or to authorize
any
party to enter into any commitment or agreement binding on the
other
party.
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9.8 |
Notices.
All
notices required to be given hereunder shall be given in writing
and shall
be delivered either by hand, by certified mail with proper postage
affixed
thereto, or by facsimile (with confirmation copy sent by certified
mail)
addressed to the signatory at the address set forth in the Asset
Purchase
Agreement, or such other person and address as may be designated
from time
to time in writing. All communications shall be deemed received
by the
other party upon the date of actual receipt (or refusal) of
delivery.
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9.9 |
Publicity.
The
parties agree that Firstwave may utilize and otherwise publish
Licensee’s
name and other information relating to this relationship without
Licensee’s consent provided such information is not proprietary
information or otherwise prohibited under the terms of this
Agreement.
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9.10 |
Severability.
If
any provision hereof is declared invalid by a court of competent
jurisdiction, such provision shall be ineffective only to the extent
of
such invalidity, so that the remainder of that provision and all
remaining
provisions of this Agreement shall be valid and enforceable to
the fullest
extent permitted by applicable law.
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9.11 |
Waiver.
No
delay or failure in exercising any right hereunder and no partial
or
single exercise thereof shall be deemed to constitute a waiver
of such
right or any other rights hereunder. No consent to a breach of
any express
or implied term of this Agreement shall constitute a consent to
any prior
or subsequent breach.
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9.12 |
Entire
Agreement. This
Agreement and any addenda or amendments thereto, if any, attached
hereto
represent the entire understanding between the parties with respect
to the
subject matter set forth herein and supersede all negotiations,
agreements, proposals, purchase orders, representations and
understandings, whether oral or written, between the parties. No
modifications, alterations additions or amendments to this Agreement
shall
be effective unless made in writing as an addendum to this Agreement
and
signed by duly authorized representatives of the parties.
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IN
WITNESS WHEREOF, Firstwave and Licensee have caused this Agreement to be
executed by their respective, duly authorized officers or representatives,
effective as of the Effective Date.
Firstwave
Technologies, Inc.
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Licensee:
M1 Global Solutions, Inc.
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|
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By:
/s/
Xxxxxxx X.
Xxxxx
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By: /s/
Xxxxxxx
XxXxxxxxx
|
(Authorized
Signature)
|
(Authorized
Signature)
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Xxxxxxx X. Xxxxx |
Xxxxxxx
XxXxxxxxx
|
Name
of
Person Signing
|
Name
of
Person Signing
|
9/30/05
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CEO
|
Date
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Title
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_______________________________________________________
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9/30/05
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Date |
Appendix
Program
Products
[Attached
and incorporated herein by reference.]
LICENSE
AGREEMENT
CONFIDENTIAL
5