EXHIBIT 10.25
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into as of August 9, 2000, (the
"Effective Date"), by and between xxXxxxxx.xxx, Inc., a Nevada corporation,
having principal offices at 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
XX 00000 USA(hereinafter referred to as "xxXxxxxx.xxx") and ANS Korea, Inc., a
corporation duly incorporated under the laws of Korea and having its principal
place of business at #202 Xxxxxxxx Xxxxxxxx, 000-0 0, Xxxxxxx-Xxxx, Xxxxxxx-Xx,
Xxxxx, Xxxxx ("Licensee")
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. SOFTWARE.
1.1 Software. Subject to the terms and conditions of this Agreement and
pursuant to the license in Section 2.2 below, Licensor agrees to license to
Licensee certain software products (the "Software") which consist of the
inChorus Pro software capable of creating xxxx xxxx-media email messages and a
hosting system. Software includes copies of software provided on disks or other
media or provided electronically, and any enhancements, modifications, updates,
bug fixes or releases related thereto. Two (2) master copies of the Software
shall be delivered to Licensee on the effective date of that certain Equity
Investment and Partnership Agreement by and between the parties hereto.
1.2 Software Upgrades. All Software upgrades, enhancements and bug fixes for
the Software shall be made available to Licensee no later than the date Licensor
releases such upgrades, enhancements and bug fixes to any of its other
licensees, customers, developers or integrators and at no additional charge
unless otherwise expressly provided in this Agreement.
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1.3 Software Support. Licensee shall provide development in localization,
customization and integration, business development and marketing support upon
written request from Licensee and for a fee at $175 USD per hour plus directly
related travel and other expenses.
2. OWNERSHIP; GRANT OF RIGHTS
2.1 Ownership. As between the parties, Licensor shall retain any and all title
to and ownership of, and all proprietary rights with respect to, the Software,
including any and all modifications, enhancements or derivative works created
from the Software by Licensee. Licensee is expressly prohibited under this
Agreement from reverse engineering the Software.
2.2 Software License. Licensor hereby grants Licensee an exclusive, non-
transferable, revocable, royalty bearing license to the Software, limited to the
geographic territory of the country of Korea, to the Software to:
(a) use, reproduce and have reproduced, object code or other copies of the
Software from master or other copies of the Software provided by Licensor only
for those purposes defined within the scope of the license granted herein;
(b) sell, distribute, license, sub-license, lease, or offer to distribute,
license or lease the Software to be incorporated and bundled into products or as
incorporated into or in connection with or for use with any Licensee product or
Licensee's joint partners' products by any means now known or developed in the
future, through multiple tiers of distribution, including without limitation
resellers, distributors, integrators, VARS or directly to end users;
(c) provide customer support (including, without limitation, to fix Software
bugs) to any reseller, distributor, integrator, VAR, end user or other third
party as necessary; and
(d) sublicense and authorize the granting of sublicenses of all of the license
rights granted to Licensee in this Section 2.2 to any third parties, provided
that any such sublicensees agree in writing to be bound by the terms hereof.
2.3 Licensor shall not grant any similar rights or licenses as described in
this Section 2 to any other Korean corporation without the express prior written
consent of Licensee.
3. FEES; ROYALTIES; PAYMENT; WARRANTS; AUDIT RIGHTS
3.1 Payment Terms. Subject to the terms and conditions of this Agreement,
Licensee agrees to pay Licensor five hundred thousand dollars ($500,000) USD for
the rights granted to Licensee hereunder. This fee shall be due and payable to
Licensor in the following manner: (i) three hundred thousand dollars ($300,000)
within two weeks of signing of the Agreement, (ii) two hundred thousand dollars
($200,000) within two weeks of delivery of the technology, completion of
localization, installation and testing or six (6) weeks from the signing of this
Agreement.
3.2 Localization. Licensee shall pay Licensor seven thousand ($7,000) in USD
for engineering and localization of inChorus Pro to Korean. Licensee shall be
responsible to translate all relevant
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inChorus Pro documents from English to Korean. Licensor staff will assist in any
way to facilitate the translation.
3.3 Royalties. Licensee shall pay Licensor a royalty equivalent to nine percent
(9%) of Licensee's total gross revenues from any and all use, sale,
distribution, advertising or any other activity described above in Section 2 of
this Agreement. Royalties shall be calculated from the Effective Date and shall
be due and payable in total at the end of each calendar quarter. The total
accumalative royalties during the term of this Agreement shall not exceed $1
million USD.
3.4 Warrants. Licensor shall be granted with five percent (5%) of the equity,
related to inChorus Pro business, in warrants, if any one of the conditions is
met:
a. inChorus Pro related revenue reaches accumulative $4,000,000
b. inChorus Pro business is reorganized as a standalone company
c. inChorus Pro business is acquired by or merged with other companies
d. ANS Korea is acquired by or merged with other companies
e. Total accumulative royalties reaches $1 million USD
The percentage shall be calculated based on then total valuation of Licensee.
The total price for the warrants shall be $100.00 USD.
3.5 Reports and Audits. Licensee shall provide a report with each quarterly
payment described above in Section 3.2, which shall include all information
required to calculate the quarterly royalty due to Licensor. Licensor or its
duly authorized representatives shall have the right, upon at least thirty (30)
days' written notice to Licensee, to inspect the books, records, and all other
documents and material in the possession of or under the control of Licensee
with respect to the subject matter of this Agreement at the place or places
where such records are normally retained. Licensor shall have free and full
access thereto for such purposes, and shall be permitted to be able to make
copies thereof and extracts therefrom. Licensee shall maintain and keep
accessible and available for inspection all books and records relative to the
subject matter of this Agreement for at least three (3) years after termination
of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 The parties hereto warrant and represent to each other that they have the
full power to enter into this Agreement and to carry out its obligations
hereunder.
4.2 NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
5. INDEMNIFICATION. The parties agree to indemnify, defend and hold each other
harmless, along with their officers, directors, employees, shareholders,
customers, agents, successors and assigns from and against any and all loss,
damage, settlement or expense(including legal expenses), as incurred, resulting
from or arising out of any claims which allege that one party hereto has
breached its obligations under this Agreement. The party hereto seeking
indemnification shall promptly notify the other party in writing of any notice
or claim of such breach of this
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Agreement and shall permit the indemnifying party to control, in a manner not
adverse to the other party, the defense, settlement, adjustment or compromise of
any such claim using counsel reasonably acceptable to the party seeking
indemnification. The party seeking indemnification may employ counsel, at its
own expense (provided that if such counsel is necessary because of a conflict of
interest of either the other party or its counsel or because the other party
does not assume control, then the other party shall bear such expense), to
assist it with respect to any such claim. The party seeking indemnification
shall not enter into any settlement that affects the other party's rights or
interest without that other party's prior written approval. The party seeking
indemnification shall have no authority to settle any claim on behalf of the
other party.
6. CONFIDENTIALITY
6.1 Each party agrees that all source and object code, trade secrets, software,
inventions, algorithms, know-how and ideas and all other business, technical and
financial information it obtains from the other are the confidential property of
the disclosing party ("Proprietary Information" of the disclosing party). Except
as expressly allowed herein, the receiving party will hold in confidence and not
use or disclose any Proprietary Information of the disclosing party, shall take
reasonable protective measures to insure same (and at least the same measures it
takes for its own Proprietary Information) and shall similarly bind its
employees in writing. The receiving party shall not be obligated under this
Section with respect to information the receiving party can document:
(a) is or has become readily publicly available without restriction through no
fault of the receiving party or its employees or agents; or
(b) is received without restriction from a third party lawfully in possession
of such information and lawfully empowered to disclose such information; or
(c) was rightfully in the possession of the receiving party without restriction
prior to its disclosure by the other party; or
(d) was independently developed by employees or consultants of the receiving
party; or
(e) is required to be disclosed by law.
6.2 If either party breaches any of its obligations with respect to
confidentiality, or if such a breach is likely to occur, the other party shall
be entitled to equitable relief, including specific performance or an
injunction, in addition to any other rights or remedies, including money
damages, provided by law.
6.3 The parties shall treat the terms and conditions and the existence of this
Agreement as Proprietary Information. Each party shall obtain the other's
consent prior to any publication, presentation, public announcement or press
release concerning the existence or terms and conditions of this Agreement.
7. LIMITATION OF LIABILITY. EXCEPT UNDER SECTION 5 OF THIS AGREEMENT, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BELIABLE TO THE OTHER
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UNDER ANY CONTRACT, STRICT LIABILITY,NEGLIGENCE OR OTHER LEGAL OR EQUITABLE
THEORY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN
CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
8. TERM; TERMINATION. This Agreement and the rights and obligations hereunder
shall remain in effect for thirty (30) months from the Effective Date. This
Agreement may be renewed ninety (90) days prior to expiration of each term based
on the terms and conditions mutually agreed by both parties.
8.1 Termination for Cause. This Agreement may be terminated by any party for
cause immediately by written notice upon the occurrence of any of the following
events:
(a) If the other ceases to do business, or otherwise terminates its business
operations or if there is a material change in control of the other; or
(b) If the other breaches any provision of this Agreement and fails to cure
such breach within thirty (30) days of written notice describing the breach; or
(c) If the other becomes insolvent or seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against the other (and not
dismissed within ninety (90) days.
(d) xxXxxxxx.xxx will deposit a Korean version of the Software in a mutually
agreed escrow account. Should xxxxxxx.xxx file a bankruptcy, then the Korean
version of the Software source code deposited in the escrow account shall be
released to Licensee.
9. MISCELLANEOUS
9.1 Survival. Sections 4, 5, 6 & 7 shall survive termination or expiration of
this Agreement. All the terms of this Agreement shall survive during the term of
the Agreement should xxXxxxxx.xxx be acquired or merged with a different
business entity.
9.2 Assignment. A party shall not assign all or any portion of its interest in
this Agreement without the prior written consent of the other party.
9.3 Notices. All notices shall be sufficient only if personally delivered,
delivered by telecopy, delivered by a major commercial rapid delivery courier
service or mailed by certified or registered mail, return receipt requested, to
either party at its address set forth above or such other address as such party
may provide by notice pursuant to this Section. If not received sooner, notice
by mail shall be deemed received five (5) days after deposit in the U.S. mails,
properly addressed, with first class postage prepaid. Notice by telecopy shall
be deemed received at the time sent Or the next working day if such time is not
during a working day.
9.4 Governing Law; Arbitration. This Agreement and any action related thereto
shall be governed, controlled, interpreted and defined by and under the laws of
the State of California and the United States, without regard to the conflicts
of laws provisions thereof. In the event a dispute of any kind or nature arises
under this Agreement, any documents executed in connection with this
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Agreement, or any matters related to this Agreement, the parties shall, within
ninety (90) days of the receipt by the other party of a demand for arbitration,
select a mutually agreeable arbitrator and submit the dispute to such arbitrator
for binding arbitration, through the American Arbitration Association Office in
Santa Xxxxx County, under the Commercial Arbitration Rules of the American
Arbitration Association. If the parties are unable to agree upon an arbitrator,
the arbitrator shall be appointed in accordance with the rules and procedures of
the American Arbitration Association. The fees for the arbitration proceedings
shall be forwarded by the party demanding arbitration. However, the arbitration
fee shall be paid or reimbursed by the non-prevailing party, as determined by
the arbitrator, who shall also award appropriate attorneys' fees and costs to
the prevailing party.
9.5 Waivers and Amendments. No failure or delay by either party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial waiver thereof include any other right, power or
privilege. This Agreement may not be amended, changed, discharged or terminated
except by a written document signed by duly authorized officers of the parties.
9.6 Severability. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall only apply to such
provision and shall not render this Agreement unenforceable or invalid as a
whole; and, in such event, such provision shall be modified or interpreted so as
to best accomplish the objective of such unenforceable or invalid provision
within the limits of applicable law or applicable court decision and the
manifest intent of the parties hereto.
9.7 Relationship of the Parties. In fulfilling its obligations under this
Agreement, each party shall be acting as an independent contractor. This
Agreement does not make either party the employee, agent or legal representative
of the other,
9.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO
ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY
UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.
9.9 Entire Agreement. This Agreement is the complete agreement between the
parties hereto concerning the subject matter of this Agreement, and replaces any
contemporaneous or prior written or oral communications between the parties.
There are no conditions, understandings, agreements, representations or
warranties, expressed or implied, which are not specified herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by persons
duly authorized as of the date and year first above written.
LICENSOR: XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: President and Chief Executive Officer
LICENSEE: ANS KOREA, INC.
By: /s/ Yang Mo Xxxxx
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Name: Yang Mo Xxxxx
Title: President and Chief Executive Officer
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