LICENSE AGREEMENT - CE CAD
This License Agreement ("Agreement") is entered into as of this 28th day
of February, 2001 ("Effective Date") by and between Autopack GmbH, a limited
liability company organized under the laws of Germany with an address of
Xxxxxxxxxxxxx 00 X, 00000 Xxxxxx, Xxxxxxx ("Autopack") and GiveMePower Inc., a
corporation organized under the laws of Alberta, with an address of Xxxxx 000,
0000 00xx Xxxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("GMP").
Agreement. For good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Autopack and GMP agree as follows:
Definitions:
CE CAD - Collectively refers to computer-aided design software products
manufactured by Autopack for use on handheld computers running Windows CE
operating system, including updates, upgrades, and documentation relating
thereto.
Upgrade - Revision of CE CAD developed by Autopack which provides for some new
and different functions, and/or which increases the capacity of CE CAD to
process information or do meaningful work.
Update - Software fix or compilation of fixes, which correct functional
defects in CE CAD.
OEM - Any business entity or individual that receives CE CAD and integrates,
merges, combines, or otherwise incorporates CE CAD into value-added product of
its own design (hereafter "VAP"), and pays GMP any fees or monies for each VAP
produced that incorporates any part of CE CAD in the result.
Territory - North America.
1. License.
(a) Grant. Subject to the terms and conditions of this Agreement,
Autopack grants to GMP a license to distribute CE CAD on a non-exclusive basis
to end users and OEM's in the Territory. CE CAD shall also include all
documentation and technical support materials provided by Autopack relating to
CE CAD. GMP shall have the right, at its expense, to make stylistic and
cosmetic changes to CE CAD and the documentation and technical support
materials; provided, however, that all such modifications shall be subject to
Autopack's prior written approval, which approval shall not be unreasonably
withheld.
(b) Transfer of Rights. GMP shall have the right to transfer its
rights and obligations under this Agreement to GMP's parent company, Telnet
World Communications Inc. ("TWCI"), a Utah company publicly listed on the
National Quotation Bureau ("Pink Sheets").
(c) Restrictions. GMP shall not distribute CE CAD outside the
Territory. This restriction shall not, however, prohibit GMP or GMP's OEM
customers from distributing VAP's outside of North America.
(d) Reservation of Rights. Nothing in this Agreement shall be deemed to
convey any title or ownership interest in CE CAD to GMP. GMP acknowledges
that (i) CE CAD contains valuable trade secrets, (ii) Autopack reserves all
rights, title and interest in CE CAD not expressly granted to GMP herein, and
(iii) that Autopack is the sole and exclusive owner of all copyrights, under
the laws of all applicable countries, to CE CAD.
(e) Acknowledgement. Autopack warrants that is has the right to
license CE CAD to GMP hereunder, and that to the best of Autopack's knowledge,
CE CAD does not infringe upon any intellectual property rights of any third
party.
(f) Warranty. Autopack warrants that CE CAD will perform substantially
in accordance with specifications provided by Autopack to GMP. GMP's exclusive
remedy and the entire liability of Autopack under this warranty (which is
subject to GMP's returning CE CAD to Autopack) will be, at Autopack's option,
to replace CE CAD or refund any fees received by Autopack that are
attributable to the defective products. Autopack makes no warranty with
respect to any other software, nor does Autopack make any warranty regarding
the functionality or performance of CE CAD when combined or integrated with
any other software. Autopack makes no warranty with
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LICENSE AGREEMENT - CE CAD
respect to any software modifications that have been performed by GMP or any
third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AUTOPACK DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF TITLE,
NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. Trademarks. GMP will have the right to market CE CAD under the names
"PowerCAD CE" and "PowerENGINE CE", and to register these trade names as
trademarks. It is understood that GMP shall not knowingly use or register any
name that is confusingly similar to any name, trade name, trademark or slogan
used by Autopack unless prior agreed to in writing by Autopack.
3. Sales Price, Payment, Sales & Efforts.
(a) GMP and Autopack shall mutually agree on the sales price to be
charged in North America. The parties agree to establish a pricing schedule
within thirty (30) days of the Effective Date, to be amended to this Agreement
as Exhibit A, and made a part of this Agreement by its inclusion thereof.
(b) GMP will charge a premium over and above the prices established
pursuant to Section 3(a) above for OEM's who wish to use alternate language
versions of CE CAD. Autopack and GMP will mutually agree on an alternate
language pricing schedule if applicable.
(c) GMP shall use its best efforts to sell CE CAD within North America.
During the term of this Agreement, GMP shall neither develop nor sell any
product that competes with CE CAD unless previously agreed to in writing by
Autopack.
(d) Autopack may change the price structure of CE CAD by giving written
notice to GMP not less than sixty (60) days prior to the effective date of
such change. Any increase in price shall not exceed 10% per annum, unless
prior agreed to by both parties. In the event of a price reduction, all CE CAD
which has been ordered but not invoiced, prior to the notification date of
such a change, will be invoiced at the reduced price.
(e) The sales price of CE CAD shall be exclusive of local taxes,
duties, use or value-added taxes, tariffs, or any other assessments by
country, state, or local government to which GMP is obligated. GMP agrees to
pay any and all such taxes, duties, or assessments, by any name or definition.
(f) GMP agrees to provide arrangements and to assume all obligations
including payment for any transportation, handling, landing or storage fees
and certificates, or for any other fees or certificates required by any of the
governments to which GMP is obligated.
(g) GMP will deliver a monthly sales report to Autopack pursuant to
Section 6A below. Payment for all CE CAD amounts due to Autopack are due no
later that thirty (30) days following each calendar quarter, beginning with
the initial quarter ending March 31, 2001.
4. Ongoing Supply of CE CAD Upgrades and Technical Support. Autopack agrees
to supply GMP with ongoing CE CAD upgrades and updates as they are completed
by Autopack, and technical support during the term of this Agreement in
exchange for a percentage of GMP's Net Sales as follows:
Number of CE CAD Licenses sold by GMP Percentage of Net Sales Due From GMP to Autopack
_____________________________________ ________________________________________________
1-1,000 50%
1,001 - 5,000 40%
5,001 - 10,000 30%
10,000+ 25%
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LICENSE AGREEMENT - CE CAD
"Net Sales" shall mean the total of all sales by GMP of CE CAD, in either
PowerCAD CE or PowerENGINE CE names, calculated as the final selling price of
CE CAD to any and all customers by GMP, after deducting any credits for
returns actually made and allowed by GMP. In computing Net Sales, no direct
or indirect expenses incurred in manufacturing, selling, distributing or
advertising (including cooperative and other advertising and promotion
allowances) CE CAD shall be deducted, nor shall any deduction be made for
uncollectible accounts. Any taxes actually paid may be deducted. Unless
otherwise agreed to in writing by Autopack, which approval shall not be
unreasonably withheld, sales to any party indirectly related to or affiliated
with GMP shall be computed using a price based on arms length sales to third
parties. CE CAD shall be deemed to have been sold when invoiced by GMP, or if
not invoiced, then when delivered, shipped or paid for, whichever is first.
Payments shall be paid no later than thirty days following the end of each
calendar quarter for the immediately preceding calendar quarter's Net Sales.
All payments under this Section 4 are the absolute obligation of GMP and are
not subject to offset.
5. Obligations.
(a) Within thirty (30) days of the end of each calendar quarter GMP
shall provide Autopack with a list of GMP shipments in US dollars and further
locations if applicable. GMP hereby grants Autopack the right to visit GMP's
facility during normal business hours to examine such records, provided
Autopack has given GMP at least one (1) day notice of such visit. Such visits
shall not be conducted more frequently than once per calendar quarter.
(b) The parties agree to conduct business in a manner which will
reflect favorably at all times on each other, and on the goodwill and
reputation of each other. The parties shall avoid deception, misleading or
unethical practices, and shall avoid misrepresentations of CE CAD or of the
warranties, representations, or guarantees of CE CAD to distributors,
resellers, or clients.
(c) The parties agree to bind any and all of its employees who work
with the other to confidentiality agreements as defined in Section 10 below
and to report any violation by its employees of these confidentiality
agreements immediately upon discovering such violation. Each party will
assist the other in any prosecution of any such employee should either party
desire to enter into prosecution of that person or persons.
(d) GMP agrees that it will not decompile, reverse engineer, reverse
compile, or perform any similar type of operation on CE CAD in any fashion or
for any purpose whatsoever without the written consent of Autopack. GMP
hereby agrees that such works are derivative works, and as such, are the sole
and exclusive property of Autopack.
6. Late Payments. In the event that any payment is not received by
Autopack when due, GMP agrees to pay Autopack interest charges at an annual
rate of either (i) ten percent (10%), or (ii) five percent (5%) plus the prime
rate of interest published by the Wall Street Journal on the date the payment
was due, whichever is greater. Such interest shall be calculated from the
date payment was due until actually received by Autopack.
7. Indemnity. Autopack shall indemnify, defend, and hold GMP harmless from
any claims, judgments, or adjudication against GMP alleging that CE CAD
infringes any North American patent or copyright of any third party or
parties, provided; (i) GMP shall promptly notify Autopack in writing of any
such claim or action, and (ii) Autopack shall have the sole control of the
defense of the action or claim and all negotiations for its settlement and
compromise; and (iii) GMP has adhered to its obligations under this Agreement
and CE CAD is used in accordance with the documentation and specifications
provided by Autopack. Should the Software become, or in Autopack's opinion be
likely to become, the subject of any claimed infringement or violation of any
copyright, patent or other intellectual property right, GMP shall permit
Autopack, at its expense and option, either to procure for GMP the right to
continue using and representing CE CAD, or to replace or modify CE CAD so that
it becomes non-infringing. THIS ARTICLE 7 STATES THE ENTIRE LIABILITY OF
AUTOPACK WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADMARKS OR ANY
OTHER FORM OF INTELLECTUAL PROPERTY FOR CE CAD AS SUPPLIED BY AUTOPACK.
8. Term. Unless this Agreement is terminated as provided below, the rights
and obligations of Autopack and GMP hereunder shall be effective for an
initial term of 12 months, commencing as of the date hereof and shall be
automatically renewed for successive terms of 12 months, unless either party
gives notice in writing of termination at least six (6) months prior to the
end of the first or of each subsequent renewed term.
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LICENSE AGREEMENT - CE CAD
9. Termination/Survivability. Either party may terminate this Agreement
upon three (3) months written notice to the other party following any material
breach or omission to the other with respect to any term, representation,
warranty, condition, or covenant hereof if, following such notice, the
offending party fails to cure and correct such breach or omission prior to the
expiration of the 3 month notification period. The termination or expiration
of this Agreement shall in no way affect any rights of either party with
respect to any breach of this Agreement. Upon the termination or expiration
of this Agreement, each party shall pay any moneys owed the other as a result
of any extension of credit or any other circumstance incurring debt. This
Agreement will remain in force, or provisions equal to its value shall be
enacted, upon the sale, or equivalent transfer of business assets or
controlling interest of either Autopack or GMP to any other party.
10. Confidentiality. The Parties acknowledge that confidential information
provided under this Agreement, including all software, all financial
information, and all schedules and scheduling information constitutes a trade
secret and, as such, shall be held and maintained in confidence. The Parties
agree they will protect the confidentiality of any confidential information
provided by the other in a manner consistent with the way they protect their
own proprietary information, and shall implement policies and procedures to
ensure the privacy of the other's confidential information. For the purposes
of this Agreement, "confidential information" shall include only (i) such
information disclosed in tangible form that is labeled or marked with the
legend "confidential"; and (ii) such information disclosed in oral or visual
form, provided that such information is identified by the discloser as
confidential at the time of disclosure and is followed up within thirty (30)
days of disclosure by a written communication from the discloser to the
recipient confirming the disclosure as confidential and summarizing the
contents of the disclosure. Confidential information shall not include
information that: (a) was in the recipient's possession before receipt from
the discloser; (b) is or becomes a matter of public knowledge through no fault
of the recipient; (c) is rightfully received by the recipient from a third
party without a duty of confidentiality; (d) is disclosed by the discloser to
a third party without a duty of confidentiality on the third party; (e) is
independently developed by the recipient; (f) is disclosed under operation of
law; or (g) is disclosed by the recipient with the discloser's prior written
approval.
11. Miscellaneous. This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by the parties to this Agreement
shall be deemed to be an original, and all of which counterparts together
shall constitute one and the same instrument; (ii) constitutes the entire
agreement of the parties with respect to its subject matter, superseding all
prior oral and written communications, proposals, negotiations,
representations, understandings, courses of dealing, agreements, contracts,
and the like between the parties in such respect; (iii) may be amended,
modified, or terminated, and any right under this Agreement may be waived in
whole or in part, only by a writing signed by each of the parties; and (v)
contains headings only for convenience, which headings do not form part, and
shall not be used in construction, of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date first written above.
AUTOPACK GMBH GIVEMEPOWER INC.
By: /s/ Xxxxxxxx Xxxxxxx, President By: /s/ W.V. Xxxxxx, CEO & President
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