PLANT VIEW ALERTS PURCHASE AGREEMENT
This AGREEMENT made October 9, 2002, by and between Serefex Corporation,
(SEREFEX), OTCBB: SFXC, a Delaware Corporation whose address is 000 Xxxxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxxxxx, 00000, and Shop Floor Systems ("Developer"), whose
address is 000 Xxxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
WHEREAS, Developer has developed a computer program entitles "Plant View Alerts"
(hereinafter known as "PVA") which it desires to license to SEREFEX for purposes
of marketing and distribution.
WHEREAS, SEREFEX desires to market and distribute the computer programs
developed by Developer;
NOW THEREFORE, in consideration of the mutual promises contained herein, it is
agreed as follows:
1. License
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1.1 Distribution Rights
Developer grants to SEREFEX the exclusive right and license to market and
distribute "PVA" such program may be upgraded or modified from time to time by
Developer in and for use wherever Serefex solely chooses.
1.2 License to Use Trademark and Trade Name
Any and all trademarks and trade names, which Developer uses in connection with
the license granted hereunder, are and remain the exclusive property of Serefex.
This Agreement gives SEREFEX all rights therein to reproduce trademarks and
trade names as necessary for and for the sole purpose of allowing SEREFEX to
fully promote and market "PVA" pursuant to the terms of this Agreement.
1.3 Competition by SEREFEX
Nothing in this Agreement shall impair Serefex's rights at all times to use or
distribute, without obligation to Developer similar ideas or programs which have
been independently submitted by others to SEREFEX provided they do not infringe
upon Developer's copyright or trade secrets.
1.4 Term
This Agreement shall continue in full force and effect for a period of unlimited
time from the date this Agreement was entered into as specified above.
2. Purchase Price and Payment
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o Purchase Price:
For the exclusive rights of "PVA", Serefex Corporation agrees to buy from Shop
Floor Systems two initial licenses for a purchase price of $100,000 payable in
Serefex Corporations common stock at five cents ($0.05) per share totaling two
million (2,000,000) Serefex common shares, made payable to ("Shop Floor Systems,
Inc".)
Developer's discount purchase price for SEREFEX's additional licenses and
Serefex's payment obligations for "PVA" will be Developer's then current
published detail prices for the Programs less a discount as calculated in
accordance with the discount policy set forth in Schedule "A."
2.2 Serefex will pay to Developer the agreed percentage dollar amount of the
total project as defined
in Schedule "A" upon full and complete payment by the End User.
2.3 Training and Support Fee
All training and support services will be provided by Developer and shall be at
an additional fee in accordance with Developer's and Serefex's separate
installation and support agreements.
3. Ownership and Property Rights
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3.1 Ownership
Developer represents that it has all necessary rights in and to all copyrights,
patents and other proprietary rights associated with the Programs that are
necessary to market, distribute and license the Programs. Developer has the
unrestricted right and authority to enter into this Agreement and to grant the
rights and licenses hereunder with respect to the Programs.
3.2 Property Rights
SEREFEX acknowledges and agrees that the Programs and all other items licensed
hereunder and all copies thereof constitute valuable trade secrets of Developer
or proprietary and confidential information of Developer and title thereto
remains in Developer. All applicable copyrights, trade secrets, patents and
other intellectual and property rights in the Programs and all other items
licensed hereunder are and remain in Developer. All other aspects of the
Programs and all other items licensed hereunder, including without limitation,
programs, methods of processing, specific design and structure of individual
programs and their interaction and unique programming techniques employed
therein as well as screen formats shall remain the sole and exclusive property
of Developer and shall not be sold, revealed, disclosed or otherwise
communicated, directly or indirectly, by SEREFEX to any person, company or
institution whatsoever other than for the purposes set forth herein. It is
expressly understood that no title to or ownership of the Programs, or any part
thereof is hereby transferred to SEREFEX.
3.3 Unauthorized Copying
SEREFEX agrees that it will not copy, modify or reproduce the Programs in any
way except as provided for herein. SEREFEX may incorporate the Programs into or
along with SEREFEX's software or hardware and distribute the Programs bundled
with SEREFEX's software or hardware. SEREFEX agrees to notify Developer promptly
of any circumstances of which SEREFEX has knowledge relating to any unauthorized
use or copying of the Programs by any person or entity not authorized to do so.
SEREFEX agrees to take, at SEREFEX's expense, but at Developer's option and
under Developer's control and discretion, any legal action necessary to prevent
or stop the unauthorized use of the Programs by any third party or entity who or
which has accessed the Programs due in substantial part to SEREFEX's fault or
negligence.
3.4 End User License Agreement
SEREFEX acknowledges and agrees that all persons who use the Programs must be
licensed by a written agreement containing terms and conditions substantially as
set forth in Schedule "B".
4. Warranty, Acceptance and Maintenance
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4.1 Limited Warranty
Developer warrants that "PVA" will perform substantially in accordance with the
specifications and documentation currently being established and upon completion
will be set forth in Schedule "C" (the "Specifications" and "Documentation") for
sixty (60) days after delivery hereunder. Developer does not warrant any
computer hardware furnished with or in conjunction with the Programs and such
computer hardware shall be the sole responsibility of the computer hardware
manufacturer.
4.2 Customer Warranty
SEREFEX agrees not to make any representations or warranties with respect to the
Programs other than the limited warranties made by Developer under this
Agreement.
4.3 Disclaimer of Warranties and Limited Liabilities
OTHER THAN THOSE WARRANTIES SET FORTH IN PARAGRAPHS 4.1 AND 5.1, DEVELOPER
SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO DEFECTS IN THE DISKETTE OR OTHER PHYSICAL MEDIA AND
DOCUMENTATION, OPERATION OF THE PROGRAMS, AND ANY PARTICULAR APPLICATION OR USE
OF THE PROGRAMS. IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY LOSS OF PROFIT OR
ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES. ALL LIABILITY BY DEVELOPER HEREUNDER
IS EXPRESSLY LIMITED TO ANY AMOUNTS PAID TO DEVELOPER UNDER THIS AGREEMENT.
5. Termination
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5.1 Events Causing Termination
This Agreement may be terminable by Developer under any of the following
conditions:
(a) if one of the parties shall be declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed in ninety (90)
days to declare one of the parties bankrupt or for a reorganization under the
Bankruptcy Law or any similar statute;
(c) if a Trustee in Bankruptcy or a Receiver or similar entity is appointed
for one of the parties; or
(d) if SEREFEX does not pay Developer within ninety (90) days from receipt
of Developer's invoice or otherwise materially breaches this Agreement.
5.2 Duties Upon Termination
Upon termination of this Agreement for any cause, the parties agree to continue
their cooperation in order to affect an orderly termination of their
relationship. SEREFEX shall immediately cease representing itself as a reseller
of the Programs for Developer; however, SEREFEX may continue to market and
distribute its inventories of the Programs for a period not in excess of three
(3) months. SEREFEX shall return all copies of promotional materials, marketing
literature, written information and reports pertaining to the Programs that have
been supplied by Developer.
6. Indemnification
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6.1 Indemnification by Developer
Developer shall indemnify, defend and hold SEREFEX harmless from any claims,
demands, liabilities, losses, damages, judgments or settlements, including all
reasonable costs and expenses related thereto including attorney's fees,
directly or indirectly resulting from any claimed infringement or violation of
any copyright, patent or other intellectual property right with respect to the
Programs, so long as the Programs are used in accordance with the documentation
and specifications provided by the Developer, and SEREFEX has adhered to its
obligations under this Agreement. Following notice of a claim or a threat of
actual suit, Developer shall:
(a) Procure for SEREFEX the right to continue to use, distribute and sell
the Programs at no additional expense to SEREFEX; or
(b) Provide SEREFEX with a non-infringing version of the Programs; or
(c) Notify SEREFEX that the Programs are being withdrawn from the market and
immediately terminate this Agreement.
6.2 Indemnification by SEREFEX
SEREFEX shall indemnify, defend and hold Developer harmless from any claims,
demands, liabilities, losses, damages, judgments or settlements, including all
reasonable costs and expenses related thereto including attorney's fees,
directly or indirectly resulting from any claimed infringement or violation of
any copyright, patent or other intellectual property right with respect to use
of the Programs in combination with SEREFEX's software.
6.3 Cooperation by Indemnified Party
Notwithstanding paragraphs 7.1 and 7.2 of this Agreement, the indemnifying party
is under no obligation to indemnify and hold the other party harmless unless:
(a) the indemnifying party shall have been promptly notified of the suit or
claim by the indemnified party and furnished by the indemnified party with a
copy of each communication, notice or other action relating to said claim;
(b) the indemnifying party shall have the right to assume sole authority to
conduct the trial or settlement of such claim or any negotiations related
thereto at the party's own expense; and
(c) the indemnified party shall provide reasonable information and
assistance requested by the indemnifying party in connection with such claim or
suit.
7. Product Promotion and Support
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7.1 SEREFEX's Obligation
During the term hereof, SEREFEX, as part of its activities to promote the
distribution of the Programs agrees to confer periodically with Developer at
Developer's request on matters relating to market conditions, sales forecasting,
product planning and update and promotional and marketing strategies and
programming. Developer may, at its sole option, review all SEREFEX's promotion
and advertising prior to and/or after the promotion or advertising utilizing any
of Developer's trademark or trade names, and SEREFEX agrees to withdraw and
retract any such promotion or advertising that Developer finds unsuitable.
7.1.1 SEREFEX will have access at any time to all written communications
between Developer and End User.
8. General
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8.1 Confidential Information
Developer and SEREFEX acknowledge that in the course of dealings between the
parties, each party will acquire information about the other party, its business
activities and operations, its technical information and trade secrets, of a
highly confidential and proprietary nature. Each party shall hold such
information in strict confidence and shall not reveal the same except for any
information generally available to or known to the public, known prior to the
negotiations leading to this Agreement, independently developed outside the
scope of this Agreement or lawfully disclosed by or to a third party or
tribunal. The confidential information of each party shall be safeguarded by the
other to the same extent that it safeguards its own confidential methods or data
relating to its own business.
8.2 Cure Period
Neither party may terminate this Agreement for breach or default of the other
party unless and until the party seeking to terminate has specified the breach
or default in writing and such breach or default has not been cured by the
receiving party within thirty (30) days after receipt of written notice.
8.3 Force Majeure
Neither party shall be liable or deemed to be in default for any delay or
failure in performance under this Agreement or interruption of service resulting
directly or indirectly from acts of God, or any causes beyond the reasonable
control of such party.
8.4 Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of
the State of Michigan. Exclusive jurisdiction for litigation of any dispute,
controversy or claim arising out of or in connection with this Agreement, or
breach thereof shall be only in the Federal or State court with competent
jurisdiction located in Detroit, Michigan.
8.5 Entire Agreement
This Agreement, including the Schedules attached hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all previous proposals, both oral and written, negotiations,
representations, commitments, writings and all other communications between the
parties. It may not be released, discharged, or modified except by an instrument
in writing signed by a duly authorized representative of each of the parties.
The terms of this Agreement shall prevail notwithstanding any compliance with
the terms and conditions or any invoice or other such document submitted by
Developer or any purchase order of any other such document submitted by SEREFEX.
8.6 Independent Contractors
It is expressly agreed that Developer and SEREFEX are acting hereunder as
independent contractors and under no circumstances shall any of the employees of
one party be deemed the employees of the other for any purpose. This Agreement
shall not be construed as authority for either party to act for the other party
in any agency or other capacity, or to make commitments of any kind for the
account of or on behalf of the other except to the extent and for the purposes
provided for herein.
8.7 Attorneys' Fees
In any action between the parties to enforce any of the terms of this Agreement,
the prevailing party shall be entitled to recover expenses, including reasonable
attorneys' fees.
8.8 Notice
Any notice required to be given by either party to the other shall be deemed
given if in writing and actually delivered or deposited in the United States
mail in registered or certified form with return receipt requested, postage
paid, addressed to the notified party at the address set forth above as changed
by notice.
8.9 Assignment
This Agreement is not assignable by either party hereto without the consent of
the other, except that this Agreement shall be assignable upon the sale of all
rights to license and sub license the Programs to the purchaser of said rights.
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors.
8.10 Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect
the validity or enforceability of any other part or provision of this Agreement.
8.11 Waiver
No waiver by any party of any breach of any provision hereof shall constitute a
waiver of any other breach of that or any other provision hereof.
8.12 Trade Limitation
SEREFEX hereby assures Developer that it does not intend to nor will it
knowingly, without the prior written consent, if required, of the Office of
Export Administration of the U.S. Department of Commerce, Washington, D.C.
20230, transmit or ship the Programs or any modifications thereto or product
thereof, directly or indirectly, to Afghanistan or the Peoples Republic of China
or to any Group Q, S, W, Y or Z country specified in Supplements to Section 370
of the Export Administration Regulations issued by the U.S. Department of
Commerce, as may be amended from time to time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly
authorized representative as of the date set forth above.
DEVELOPER ("Shop Floor Systems")
/s/ Shop Floor Systems
By:________________________________________
Title:_____________________________________
SEREFEX
/s/ Xxxxx Xxxx
___________________________________________
By: XXXXX X. XXXX
Title: PRESIDENT
SCHEDULE A
The following are the prices Serefex will be entitled to purchase "PVA" licenses
per calendar year:
- 40% of stated list price for licenses 1-10 sold per calendar year
- 30% of stated list rice for licenses 11-20 sold per calendar year
- 20% of stated list price for all licenses over 20 sold per calendar year
Schedules Needed:
Schedule B - License Agreement per section 3.4
Schedule C - Specifications Schedule
