Exhibit 10.9
CONTENT LICENSING AGREEMENT
between
Data Call Technologies, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
hereinafter referred to as "Licensor"
and
PLAN_B MEDIA AG
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hereinafter referred to as "plan_b"
1 PURPOSE OF THE AGREEMENT
1.1 The purpose of this content distribution Agreement (hereinafter
"Agreement") is to set forth the terms and conditions under which
plan_b may use the Content ("Content" as set forth in APPENDIX 2)
owned or licensed by LICENSOR for a commercial distribution to
plan_b's End Users in the territory ("Territory" as set forth in
APPENDIX 2).
1.2 End User means any third Party receiving Content on a mobile
device for a payment in accordance with the terms and conditions of
this Agreement for their own private and non- commercial use.
2 OBLIGATIONS OF LICENSOR
2.1 LICENSOR shall make a first delivery of Content to plan_b within
14 days after the signing of this Agreement unless separately agreed
between the Parties.
2.2 LICENSOR shall deliver Content according to the specifications
(for example formats, file sizes) set by plan_b or to be agreed
between the Parties in writing.
2.3 LICENSOR grants plan_b for the term of this Agreement the right
to produce, market and distribute Content to End Users (in the
territory specified in appendix 2) through its own and its partner's
platform.
3 OBLIGATIONS OF PLAN_B
3.1 plan_b will distribute Content to End Users in the Territory
through its distribution channels.
3.2 plan_b shall use reasonable commercial efforts to market and
stimulate interest in the Content with its customers.
3.3 plan_b shall provide LICENSOR with a detailed written record,
which includes the number of End User downloads and each distribution
channel. Such report shall be provided to LICENSOR in electronic
format within 6 weeks of the end of a quarter.
3.4 LICENSOR shall have the right to use a certified public
accountant to inspect and audit all the related records and books of
plan_b to ensure plan_b's compliance with the terms of this Agreement.
In the event that any such audit reveals that plan_b has underpaid
fees to the value of ten (10) percent or more of the total amount of
payments for the period covered by the audit, plan_b shall bear the
cost of the audit and shall in any event immediately pay to LICENSOR
the full value of the underpaid or under-reported fees. Such audits
shall normally be conducted during normal business hours at plan_b's
premises.
4 REVENUES
4.1 plan_b shall pay LICENSOR a share of its revenues as set forth in
APPENDIX 2 ("REVENUES").
4.2 All shares are net, plus the respective applying value added tax
(if applicable).
5 INTELLECTUAL PROPERTY RIGHTS
5.1 LICENSOR is the owner of all intellectual property rights,
including without limitation, any and all patents, utility models,
trade marks, rights in designs, trade, business or domain names,
know-how, rights in databases and copyrights, rights in inventions,
ideas, concepts, trade secrets and confidential information which have
to be given to fulfill this contract.
5.2 In the alternative, if LICENSOR is not the sole and exclusive
owner of all of the foregoing intellectual property rights to the
Content, LICENSOR has been granted by the owner or rightful
sub-licensee of the intellectual property of the Content the right to
grant the rights provided by LICENSOR to plan_b under this Agreement.
5.3 LICENSOR grants to plan_b a license to produce, use, distribute,
promote and publicly display the Content in any possible way for
distribution and marketing purposes. Additionally, Licensee shall have
the right to use the trademarks, trade names, or logos relating to
Content (the "TRADEMARKS").
5.4 LICENSOR warrants that Content does not infringe an intellectual
property right enforceable in the agreed country of delivery or use.
LICENSOR indemnifies and holds harmless plan_b against all claims that
Content infringes any of the above mentioned rights of a third Party.
LICENSOR shall pay all damages awarded in a trial to a third Party.
6 CONFIDENTIALITY
6.1 Each Party shall keep in confidence all material and information,
including without limitation Content, received from the other Party
and marked as confidential or which should be understood to be
confidential, and may not use such material or information for any
other purposes than those set forth in this Agreement. The
confidentiality obligation shall, however, not be applied to material
and information, which as shown by the receiving Party,
6.1.1 is generally available or otherwise public; or
6.1.2 the receiving Party has received from a third party without
any obligation of confidentiality; or
6.1.3 was in the possession of the receiving Party prior to
receipt of the same from the other Party without any obligation
of confidentiality related thereto; or
6.1.4 the receiving party has independently developed without
using material or information received from the other Party.
6.2 Each Party shall promptly upon termination of this Agreement or
when the Party no longer needs the material or information in question
for the purpose stated in this Agreement cease using confidential
material and information received from the other Party and, unless the
Parties separately agree on destruction of such material, return the
material in question (including all copies thereof).
6.3 The rights and responsibilities under this section shall survive
any termination or cancellation of this Agreement for 2 years.
7 TERM OF THE AGREEMENT AND TERMINATION
7.1 Unless otherwise stated in the Appendix the term of this letter
Agreement shall continue for twenty-four (24) months with the
effective date unless terminated sooner or extended pursuant to the
terms hereof ("Initial Term"). The Initial Term shall automatically be
extended for an additional period of half a year unless either party
provides the other party with written notification of termination of
the letter Agreement at least 60 days prior to end of such period.
7.2 Either Party shall be entitled to cancel this Agreement if the
other Party is materially in breach of the terms of this Agreement. If
the breach of contract is capable of being remedied, this Agreement
can be cancelled only provided that the Party in breach has not
rectified its breach within thirty (30) days of the written notice by
the other Party.
7.3 Either Party may cancel this Agreement already prior to the date
of its fulfillment, if it becomes evident that the other Party will
commit a breach of contract entitling to cancellation of this
Agreement.
7.4 Upon termination or cancellation of this Agreement plan_b shall
cease to use Content for any purpose and delete Content from any files
and data storage.
7.5 After termination of this contract, there shall be a sell-off
period (defined in APPENDIX 2) following the date of termination of
this contract.
8 MISCELLANEOUS
8.1 The Parties acknowledge that they act as independent contractors
and this Agreement does not constitute any partnership, joint venture,
agency relationship or other independent legal entity separate from
the Parties.
8.2 Neither Party shall assign or transfer to any third party,
without the prior written consent of the other Party, this Agreement
or any rights granted herein.
8.3 Any amendments to this Agreement shall be in writing and shall
have no effect before signed by the duly authorized representatives of
the Parties.
8.4 All payments will be made to Licensor in United States dollars.
9 SEVERABILITY
9.1 In the event that any provision in this Agreement will be subject
to an interpretation under which it would be void or unenforceable,
such provisions will be construed so as to constitute it a valid and
enforceable provision to the fullest extent possible, and in the event
that it cannot be so construed, it will, to that extent, be deemed
deleted and separable from the other provisions of this Agreement,
which will remain in full force and effect and will be construed to
effectuate its purposes to the maximum legal extent.
10 GOVERNING LAW AND VENUE
10.1 This Agreement shall be governed and construed in accordance with
the laws of the United States of America. The courts of competent
jurisdiction at New York City, New York, shall have the exclusive
jurisdiction over any dispute arising out of or in connection with
this Agreement.
10.2 This Agreement has been prepared in two (2) identical copies, one
for each Party.
PLAN_B MEDIA AG PLAN_B MEDIA AG
03/24/06 03/24/06
______________________________ _____________________________
Date Date
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇-Sickenagel
______________________________ _____________________________
Signature Signature
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Meyes-Sickenagel
______________________________ _____________________________
Name (Please print) Name (Please print)
CIO COO
______________________________ _____________________________
Title/Position Title/Position
LICENSOR LICENSOR
3/23/06
______________________________ _____________________________
Date Date
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
______________________________ _____________________________
Signature Signature
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______________________________ _____________________________
Name (Please print) Name (Please print)
President and CEO
______________________________ _____________________________
Title/Position Title/Position
APPENDIX I
1. CONTACT PLAN_B MEDIA AG
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Position: Head of Content
Phone: XXXXXXXXXXXXX
Email: XXXXXXXXXXXXXXX
2 CONTACT LICENSOR
Name: ▇▇▇ ▇▇▇▇▇▇
Position: CEO / President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
3 CONTACT LICENSOR AGENT (IF APPLICABLE)
Name:
Position:
Phone:
Email:
4 BANK ACCOUNT LICENSOR
Bank name: Bank Of America
Bank address: Dallas, Texas
Country: USA
APPENDIX 2
1 CONTENT, SHARE & TERRITORY
1.1 Contract name (for internal plan_b-▇▇▇▇ use): Data Call Technologies,
Inc.
CONTENT LICENSOR TERRITORY TERMINATION
SHARE
Top News Headlines
Top Business Headlines
Science/Health News
Entertainment Headlines
National Football League
National Basketball Association
National Hockey League
Major League Baseball
NCAA Football
NCAA Men's Basketball
Professional Golf Association
NASCAR
Latest Sports Lines 45% Worldwide 24 months
Latest Sports Headlines
Thought for Today
Market Details
World Financial Highlights
Weather:
Current Conditions
48-Hour Forecast
7-Day Forecast
Weather Alerts
Doppler Weather Radar
2 TERMS
2.1 Contract start: 04-01-06
2.2 Contract end: 04-01-08
2.3 Commercial distribution possible from:
2.4 Sell-off period: 3 months after termination
3 PAYMENTS AND REPORTS TO LICENSOR
3.1 Reporting: Quarterly; 30 days after end of quarter
3.2 Payment terms: 30 days after receipt of invoice
4 EXCLUSIVITY COPYRIGHT
4.1 Content exclusive: [ ] Yes [ ] No
4.2 Copyright:
