EXHIBIT 10.11
SOFTWARE LICENSING AGREEMENT
THIS AGREEMENT (the "Agreement") entered into this 27th day of January,
2000, between PROTRAVEL SOLUTIONS, INC. ("Licensee") on the one hand and
software owners, NETWORK HOLDINGS INTERNATIONAL, INC. and KAMTEL INTERNATIONAL,
INC. ("Licensors") on the other hand.
RECITALS
WHEREAS, Licensee seeks to use software applications owned by
Licensors;
WHEREAS, Licensors seeks to grant Licensee use of such software
applications; and
WHEREAS, the parties hereto seek to enter into an agreement whereby
Licensors grant Licensee the right to use such software, and agree to be bound
to the agreement as contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other valuable consideration, the receipt, accuracy, and sufficiency of
which is hereby acknowledged, the parties intending to be bound to the terms
contained herein agree as follows:
1. SOFTWARE. The software intended to be covered by this Agreement it the
KAM2000 MLM management and organizational program (the "Software").
2. SCOPE.
(a) The Licensors agrees to provide the Software and to provide
updates to the Software as and when new versions are released
provided that Licensee is current on all payments due under
this Agreement.
(b) The Licensors agrees to provide Software updates at Licensee's
request provided a reasonable fee is paid to cover the cost of
development and integration of such update. However, Licensors
are under no obligation whatsoever to provide updates to the
Software.
(c) The Licensors will provide one copy of the Software to
Licensee.
(d) The Licensees shall be permitted to use the Software only at
one location. Licensee shall have the right to extend the use
to other locations subject to the payment of additional fees.
(e) For purposes of this Agreement, those entitled to use the
Software in conducting the business activities of the Licensee
shall be Licensee's current, and future, employees and other
persons authorized by the Licensee.
(f) Licensee shall make no modification to the Software. Any
necessary modifications to the Software shall be performed by
Licensor Kamtel International, Inc. upon Licensee's request.
2. TERM. The term of this Agreement shall be for two (2) years from the
date of execution. Such term shall be renewable for subsequent one-(1)
year periods upon written notice provided thirty (30) days prior to the
termination date.
3. CHARGES AND PAYMENTS
(a) The amount payable for the licensing of the Software (the
"License Fee") shall be eight hundred fifty dollars ($850.00)
per month and shall be tendered to the order of Licensor
Kamtel International, Inc. Any applicable taxes shall be paid
by the Licensee at the rate applicable at the time of supply.
Any new tax or duty, other than income tax, shall be paid by
the Licensee.
(b) Payment of the Licensing Fee shall become due and payable to
Kamtel International, Inc. on the first calendar day of each
month, the first of which shall be February 1, 2000.
(c) The Licensors shall have the right to increase the License Fee
on each anniversary of the signing of this Agreement.
(d) Subject to clauses 3(a) and (c), and to any agreed to
variations or changes, the License Fee specified in this
Agreement constitutes the total charge to the Licensee.
4. CONFIDENTIALITY. All parties agree that, unless they have the prior
written consent of the other, they will not disclose to any third
party, other than for the purpose of performing this Agreement, the
terms and conditions of this Agreement or any information that is
confidential to the other party. The obligations of this clause shall
survive termination or cancellation of this Agreement.
5. DOCUMENTATION. The Licensors shall provide the Licensee with users
manuals, including those in electronic form, handbooks, maintenance
libraries, education materials, and other publications containing
specifications to be supplied in order to assist the use, operation, or
support of the Software "Documentation"). Amendments to the
Documentation will be provided with each update to the software.
6. WARRANTIES. The Licensors warrant that hey have the right and authority
to grant the License for the Software supplied to the Licensee.
The above warranty is in lieu of, and the Licensor disclaims, all other
warranties, express or implied, which may be lawfully excluded,
including, but not limited to warranties of description, design,
merchantability, or fitness for a particular purpose.
7. OWNERSHIP. All intellectual property rights that may subsist in the
Software and associated Documentation shall remain with the owner of
such Software but the Licensee shall be granted a license to use the
Software upon the terms and conditions contained within this Agreement.
8. LIMITATION OF LIABILITY.
(a) The warranties in clause 6 replace all other representations
or warranties (statutory, express, or implied) and all such
representations and warranties are expressly excluded, except
those that may not lawfully be excluded.
(b) Neither party will under any circumstances be liable under the
law of tort, contract, or otherwise for any loss of profits or
savings or for any indirect or consequential loss or damage,
however caused, arising out of or in connection with the
performance or non-performance of this Agreement.
(c) The Licensors' liability to the Licensee arising out of any
claim for damages for any cause whatsoever will under no
circumstance exceed in aggregate the total amount of the sums
actually paid by the Licensee to the Licensors for the goods
or services giving rise to the claim.
9. TERMINATION.
(a) Either party may terminate this Agreement without notice to
the other party if the other party:
1. assigns its rights or obligations otherwise than in
accordance with this Agreement;
2. becomes insolvent or files for protection from
creditors under bankruptcy law;
3. commits a breach of copyright or any other breach of
intellectual property rights, or a breach of
confidentiality.
(b) If one party defaults in the performances of any of its
obligations under this Agreement the non-defaulting party may
immediately terminate, or temporarily suspend the operation of
this Agreement until the default is cured. (b)
(c) Any default on the part of the Licensee regarding the Asset
Purchase Agreement and between it and TravelMax International,
Inc., shall also constitute default under this Software
Licensing Agreement.
10. REMEDIES ON TERMINATION
If the Licensee gives notice to the Licensors to terminate this
Agreement, the Licensee may, in addition to terminating this Agreement:
(a) recover any sums paid to the Licensors on any account under
this Agreement that have not been performed or completed;
(b) pursue any additional or alternative remedies provided by law.
11. POST TERMINATION. Upon termination of this Agreement, the Licensee
shall, at the Licensors' option, return or destroy any copies of the
Software and related Documentation in the possession or control of the
Licensee.
12. FORCE MAJEUR. Neither party will be liable for any act, omission, or
failure to fulfil its obligations under this Agreement if such act,
omission, or failure arises from any cause reasonably beyond its
control including acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental action after the date of this Agreement, fire,
communication line failure, power failure, earthquakes, or other
disasters.
13. WAIVER. No delay, neglect, or forbearance by either party in enforcing
against the other party any provision of this Agreement shall
constitute waiver, or in any way prejudice any right of that party.
14. SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal, or unenforceable, such provision will be severed and the
remainder of the Agreement shall remain in full force and effect.
15. ASSIGNMENT. The Licensee shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of
the Licensors which shall not be unreasonably withheld.
16. SURVIVAL. The provisions of this Agreement which are capable of having
effect after termination of this Agreement shall remain in full effect
following the termination of the Agreement.
17. EFFECT. Any schedules, exhibits, or recitals have the same effect as if
set out in the body of the Agreement.
18. HEADINGS. Headings are inserted for convenience of reference only and
do not affect the interpretation of this Agreement.
19. AMENDMENTS. Any modification to or variation of this Agreement must be
in writing and signed by authorized representatives of both the
Licensee and Licensors.
20. ENTIRE AGREEMENT. The parties acknowledge that this Agreement contains
the whole of the contract and understandings between them. There are no
conditions, warranties or other understandings affecting the
arrangement between the parties other than those set out herein and
this Agreement replaces all prior Agreements and understandings with
respect to the subject matter of this Agreement.
21. ARBITRATION. Any dispute arising under this Agreement which cannot be
settled by negotiation between the parties or their respective
representatives shall be submitted to binding arbitration
22. before commencing any litigation. Either party may initiate arbitration
by giving the other written notice. Such arbitration shall be governed
by the rules of the American Arbitration Association and the arbitrator
shall have the ability to grant injunctive relief.
23. CHOICE OF LAW AND VENUE. The parties agree that this Agreement shall be
governed by the laws of the State of Florida. Any action arising out of
this Agreement shall be properly taken in Broward County, Florida.
SIGNED AND DELIVERED AS OF THE DATE FIRST ENTERED ABOVE
LICENSEE
BY: /S/ XXX X. O'DELL
----------------------------
PROTRAVEL SOLUTIONS, INC.
XXX X. O'DELL
----------------------------
Print name
CHAIRMAN
----------------------------
Title
LICENSORS
BY: /S/ XXXXX XXXXXXX
----------------------------
KAMTEL INTERNATIONAL, INC.
XXXXX XXXXXXX
----------------------------
Print name
PRESIDENT
----------------------------
Title
BY: /S/ XXXXX X. XXXXX
----------------------------
NETWORK HOLDINGS
INTERNATIONAL, INC.
Xxxxx X. Xxxxx
Executive Vice-President.
