EXHIBIT 10.1
LICENSE TECHNOLOGY AGREEMENT
TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT is entered into October 26th 2007 by and between Niche
Properties, Inc., a corporation organized under the laws of the state of
Colorado, whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, XX 00000
("Licensor"), and Fairway Properties, Inc., a Corporation formed under the laws
of Nevada with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, XX 00000
("Licensee").
WITNESSETH:
WHEREAS, Licensor is engaged in the business of designing and developing
computer-related software, websites, and related products and has, over the
years, acquired and developed substantial and valuable technical knowledge,
know-how, and experience in the design and development of such systems and
products described in detail in Exhibit "A" attached hereto (the Technology);
and
WHEREAS, Licensee desires to engage in the business of marketing similar
products and services and utilize the Technology in the design, development, and
sale of such services; and
WHEREAS, Licensor and Licensee believe it is in their mutual interest and desire
to enter into an agreement whereby Licensee would use Licensor's Technology in
the provision and sale of the Products in the Territory defined herein below
pursuant to the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual covenants of
this Agreement, the parties hereto agree as follows:
1. LICENSE
Licensor hereby grants to Licensee and its sub licensees, for the term
of this Agreement, a nonexclusive, non-assignable, right and license to
use its Technology in order to market and sell the products and
services set forth in Schedule "A" using said Technology (the Licensed
Products) in the countries identified in Schedule A attached hereto
(the Territory).
2. TERM
This Agreement shall be effective as of the date of execution by both
parties and shall extend for the period set forth in Schedule A (the
Term).
3. COMPENSATION
A. In consideration for the licenses granted hereunder, Licensee agrees
to pay to Licensor the royalty recited in Schedule A (the Royalty)
based on Licensee's Net Sales generated by the use of Licensor's
technology.
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B. The Royalty owed Licensor shall be calculated on a quarterly
calendar basis (Royalty Period). The Licensee's Net Sales shall be
processed through the Licensor's technology platform and deposited into
Licensor's bank account. Licensor shall retain its Royalty and disburse
the Net Sales less the Royalty to the Licensee no later than thirty
(30) days after the end of the preceding full quarterly period, i.e.,
commencing on the first (1st) day of January, April, July, and October
except that the first and last calendar periods may be "short,"
depending on the effective date of this Agreement.
C. For each Royalty Period, Licensor shall provide Licensee with a
written royalty statement in a form acceptable to Licensee. Such
royalty statement shall be certified as accurate by a duly authorized
officer of Licensor and shall include reportable sales for each
applicable period. Such statements shall be furnished to Licensee
regardless of whether any sales were made during the Royalty Period or
whether any actual Royalty was owed.
D. Licensee agrees to pay to Licensor an Advance against Royalties in
the amount recited in Schedule A, which may be credited against
Licensee's actual royalty obligation to Licensor.
E. During each calendar year during the Term of this Agreement,
Licensee agrees to pay Licensor a Guaranteed Minimum Royalty as recited
in Schedule A that may be credited against Licensee's actual royalty
obligation to Licensor. The Guaranteed Minimum Royalty shall be
calculated at the end of each calendar year commencing in the year the
Licensor furnishes a production stage web application (evidenced by the
website residing at the "www" subdomain of one of the licensed domains
names in Schedule A). In the event that Licensee's actual Royalties
paid Licensor for any calendar year are less than the Guaranteed
Minimum Royalty for such year, Licensee shall, in addition to paying
Licensor its actual earned Royalty for such Royalty Period, pay
Licensor the difference between the total earned Royalty for the year
and the Guaranteed Minimum Royalty for such year no later than January
31 of the following year.
F. "Net Sales" shall mean Licensee's gross sales (the gross invoice
amount billed customers), less discounts and allowances actually shown
on the invoice (except cash discounts that are not deductible in the
calculation of Royalty).
G. A Royalty obligation shall accrue upon the Licensee's Net Sales
regardless of the time of disbursement by Licensor of the Net Sales
less the Royalty.
H. If Licensee sells any Products and Services to any affiliated or
related party at a price less than the regular price charged to other
parties, the Royalty shall be computed at the regular price.
I. Upon expiration or termination of this Agreement, all Royalty
obligations, including the Guaranteed Minimum Royalty, shall be
accelerated and shall immediately become due and payable.
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J. Late payment of the Guaranteed Minimum Royalty, if applicable, shall
incur interest at the rate of one and one-half Percent (1.5%) per month
from the date such payments were originally due.
4. RECORD INSPECTION AND AUDIT
A. Licensee shall have the right, upon reasonable notice, to inspect
Licensor's books and records and all other documents and material in
Licensor's possession or control with respect to the subject matter of
this Agreement. Licensee shall have free and full access thereto for
such purposes and may make copies thereof.
B. In the event that such inspection reveals an underpayment by
Licensor of the Net Sales less the Royalty to the Licensee, Licensor
shall pay the difference, plus interest calculated at the rate of one
and one-half Percent (1.5%) per month. If such underpayment be in
excess of Five Thousand U.S. Dollars ($5,000.00) for any Royalty
Period, Licensor shall also reimburse Licensee for the cost of such
inspection.
C. All books and records relative to Licensor's disbursement to the
Licensee of the Net Sales less the Royalty hereunder shall be
maintained and made accessible to Licensee for inspection at a location
in the United States for at least 5 years after termination of this
Agreement.
5. LICENSOR'S OBLIGATIONS/CONFIDENTIALITY
A. Beginning upon the effective date of this Agreement as provided in
Schedule A, Licensor shall meet with and provide Licensee with such
Technology relating to the installation and operation of hardware,
software, machinery, equipment, materials, object codes,
specifications, designs, manufacturing and procedures, methods, layout,
and the like that Licensor believes Licensee may require in order to
sell products and services using the technology.
B. Licensee recognizes that such Technology is the proprietary and
confidential property of Licensor. Accordingly, Licensee shall not,
without the prior express written consent of Licensor, during the term
of this Agreement and for two (2) years thereafter, disclose or reveal
to any third party or utilize for its own benefit other than pursuant
to this Agreement, any such Technology provided by Licensor concerning,
provided that such information was not previously known to Licensee or
to the general public. Licensee further agrees to take all reasonable
precautions to preserve the confidentiality of Licensor's Technology
and shall assume responsibility that its employees, sublicensees, and
assignees will similarly preserve this information against third
parties. The provisions of this clause shall survive termination of
this Agreement.
C. Licensor shall also provide Licensee, at its place of business, such
technical and other qualified experts for developing the services
provided through the technology and for assisting Licensee on any
problems or matters that require on-the-spot assistance. In such event,
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Licensee shall pay all travel and out-of-pocket expenses incurred by
any such Licensor personnel, it being understood that the salaries of
the experts shall be the responsibility of Licensor.
D. At the request of Licensee, Licensor shall train at least two (2)
employees of Licensee at Licensor's facility. Expenses and salaries of
Licensee personnel sent to Licensor by Licensee for training shall be
borne by Licensee. Licensee may also elect to pay Licensor a
to-be-agreed-upon administrative fee for Licensor to provide services
that employees of Licensee otherwise would be required to perform given
the services and products provided by Licensee.
E. Licensor represents and warrants that it has the right and power to
grant the licenses granted herein and that there are no other
agreements with any other party in conflict with such grant.
F. Licensor further represents and warrants that it has no actual
knowledge that the Technology infringes any valid rights of any third
party.
6. IMPROVEMENTS
During the term of this Agreement, each party shall advise the other
party of any technical improvements and inventions relating to the
Technology and the Licensed Products. All such improvements and
inventions shall become the property of Licensor, and Licensee agrees
to execute any and all documents requested by Licensor in order to
perfect Licensor's right in same.
7. EQUIPMENT
A. Where applicable, at the request of Licensee, Licensor shall supply
and cause to be supplied to Licensee such necessary equipment and other
materials as is available to Licensor. Prices of the machinery,
equipment, and other materials from and through Licensor shall be on
most favored terms with those established by or through Licensor.
B. Where applicable, Licensor will lease the said equipment to Licensee
for a to-be-agreed-upon period and fee. Upon termination of this
Agreement, Licensee shall return said equipment to Licensor at
Licensor's expense.
8. TECHNICAL INFORMATION
Licensor represents that the technical information and assistance
relating to the Technology conveyed under this Agreement shall be
provided with reasonable care and will, where applicable, be of the
same types as currently practiced by Licensor.
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9. LICENSEE'S OBLIGATIONS
A. Licensee represents that it has the financial resources and business
operations that will enable it to market and sell the products and
services provided by the technology and otherwise reasonably
commercialize the Licensed Products and Services throughout the
Territory, and that it shall, during the term of this Agreement and any
renewal thereof, use its best efforts to promote the distribution and
sale of such Licensed Products and Services in the Territory.
B. Licensee shall fully comply with the marking provisions of the
intellectual property laws of the applicable countries in the Licensed
Territory.
10. PERMITS
A. In the event that the Technology is to be used in foreign countries
by Licensee or its sublicensees, this Agreement is subject to the
obtaining of all necessary permits required by the laws of that
particular country. Licensee shall take all steps necessary for
obtaining from the appropriate governmental authority all approvals and
permits necessary to carry out the terms of this Agreement.
B. Licensor shall cooperate with Licensee relative to supplying any
information and material necessary for the approvals and consents of
the appropriate governmental authority.
11. TERMINATION
The following termination rights are in addition to the termination
rights which may be provided elsewhere in the Agreement:
A. IMMEDIATE RIGHT OF TERMINATION. Licensor shall have the right to
immediately terminate this Agreement by giving written notice to
Licensee in the event that Licensee does any of the following:
1. Files a petition in bankruptcy or is adjudicated a
bankrupt or insolvent, or makes an assignment for the
benefit of creditors or an arrangement pursuant to
any bankruptcy law, or if Licensee discontinues or
dissolves its business or if a receiver is appointed
for Licensee or for Licensee's business and such
receiver is not discharged within 30 days;
2. Fails to commence the sale of Licensed Products and
Services within eighteen (18) months from the
Effective Date of this Agreement;
3. Upon the commencement of sale of Licensed Products
and Services, fails to sell any Licensed Product and
Service for two (2) consecutive Royalty Periods; or
4. Undergoes a change in ownership or control whereby
the current largest shareholder of the Licensee
ceases to be the largest shareholder of the Licensee.
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B. RIGHT TO TERMINATE UPON NOTICE. Either party may terminate this
Agreement on thirty (30) days written notice to the other party in the
event of a breach of any provision of this Agreement by the other
party, provided that, during the thirty (30) day period, the breaching
party fails to cure such breach.
C. LICENSEE RIGHT TO TERMINATE. Licensee shall have the right to
terminate this Agreement at any time upon three (3) months written
notice to Licensor for any reason.
12. POST TERMINATION RIGHTS
A. Upon the expiration or termination of this Agreement, all rights
granted to Licensee under this Agreement shall forthwith terminate and
immediately revert to Licensor and Licensee shall discontinue all use
of the Technology and the like.
B. Upon the expiration or termination of this Agreement, Licensor may
require that Licensee transmit to Licensor, at no cost, all material
relating to the Technology, provided, however, that Licensee shall be
permitted to retain a full copy of all material subject to the
confidentiality provisions of this agreement.
13. INDEMNITY
A. Licensee agrees to defend, indemnify, and hold Licensor, and its
officers, directors, agents, and employees, harmless against all costs,
expenses, and losses (including reasonable attorney fees and costs)
incurred through claims of third parties against Licensor based on the
sale of the Licensed Products and Services including, but not limited
to, actions founded on product liability.
B. Licensor agrees to defend, indemnify, and hold Licensee, and its
officers, directors, agents, and employees, harmless against all costs,
expenses and losses (including reasonable attorney fees and costs)
incurred through claims of third parties against Licensee based on a
breach by Licensor of any representation or warranty made in this
Agreement.
14. NOTICES
A. Any notice required to be given pursuant to this Agreement shall be
in writing and mailed by certified or registered mail, return receipt
requested, or delivered by a national overnight express service.
B. Either party may change the address to which notice or payment is to
be sent by written notice to the other party pursuant to the provisions
of this paragraph.
15. JURISDICTION AND DISPUTES
A. This Agreement shall be governed by the laws of Colorado.
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B. All disputes hereunder shall be resolved in the applicable Colorado
or federal courts of Colorado. The parties consent to the jurisdiction
of such courts, agree to accept service of process by mail, and waive
any jurisdictional or venue defenses otherwise available.
16. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of
the parties hereto, and their heirs, administrators, successors, and
assigns.
17. WAIVER
No waiver by either party of any default shall be deemed as a waiver of
any prior or subsequent default of the same or other provisions of this
Agreement.
18. SEVERABILITY
If any provision hereof is held invalid or unenforceable by a court of
competent jurisdiction, such invalidity shall not affect the validity
or operation of any other provision and such invalid provision shall be
deemed to be severed from the Agreement.
19. ASSIGNABILITY
The license granted hereunder is personal to Licensee and may not be
assigned by any act of Licensee or by operation of law unless in
connection with a transfer of substantially all the assets of Licensee
and approved in writing by Licensor.
20. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and
revokes and supersedes all prior agreements between the parties and is
intended as a final expression of their Agreement. It shall not be
modified or amended except in writing signed by the parties hereto and
specifically referring to this Agreement. This Agreement shall take
precedence over any other documents that may be in conflict therewith.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have each caused to be affixed hereto its or his/her hand and seal the day
indicated.
NICHE PROPERTIES, INC. FAIRWAY PROPERTIES, INC.
By: ___________________________ By:____________________________
Title: _________________________ Title:__________________________
Date:__________________________ Date:__________________________
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SCHEDULE A
TO
TECHNOLOGY LICENSE AGREEMENT
BETWEEN
NICHE PROPERTIES, INC.
AND
FAIRWAY PROPERTIES, INC.
DATED
OCTOBER 26TH 2007
1. LICENSED PRODUCTS AND SERVICES
The Licensed Products and Services are as follows:
(a) Domain Names: XxxxxxxXxxxxxxxxx.xxx, XxxxxxxXxxxxxxx.xxx,
Xxxxxxx-Xxxxxxxxxx.xxx, and Xxxxxxx-Xxxxxxxx.xxx
(b) XxxxxxxXxxxxxxxxx.xxx Website: Includes initial site
production, general site maintenance, and use of the NICHE
properties web application and database.
2. LICENSED TERRITORY
The licensed territory consists of all countries, recognized, partially
recognized, or unrecognized, on the planet Earth.
3. THE TERM
Ten (10) years from the effective date thereof, and thereafter, shall be
automatically renewable for successive 1 year periods, unless 60 days prior to
the termination any party hereto gives written notice to the other party of its
election not to renew this Agreement for an additional 1 year period, in which
event this Agreement shall terminate at the end of the period in which such
notice was given.
4. ROYALTY RATE
The Royalty Rate is as follows: 25 percent (25%) of all membership and
advertising revenues. The Guaranteed Minimum Royalty per calendar year is 10,000
USD.
5. ADVANCE
No advance shall be paid.
6. PRODUCT LIABILITY INSURANCE
No product liability insurance is to be provided at this time. The parties may
renegotiate this provision at a future date. All amendments for this provision
must be put in writing and signed by both parties.
