EXHIBIT 10.1
DEVELOPMENT, MAINTENANCE, & ROYALTY
XXXXX SYSTEMS
HUMWARE MEDIA CORPORATION
ARTICLE I
Recitals
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This Development, Maintenance and Royalty Agreement (AGREEMENT), is made and
entered into this 1st day of June, 2007, by and between HUMWARE Media
Corporation., a Nevada corporation, having a place of business at 00 Xxxxxx XX.,
Xxxxxx Xxxxxxxx 00000, (HUMWARE), and Xxxxx Systems, Inc., a Texas Corporation
having a place of business at 0 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000,
(XXXXX).
HUMWARE has independently created and developed to a state of commercial
operation a digital signage network, known alternatively as "Boondoggle Sports
Network", or other market-specific titles, that contains certain proprietary
know-how. (Proprietary Information), which may be further protected by U.S.
Patent Pending #20060217198.
XXXXX is desirous to have HUMWARE create, develop and maintain a customized
version of the digital signage network to be named "Child Watch Network or CWN".
Therefore, for and in consideration of the good and valuable considerations as
hereinafter set forth, and of the covenants and agreements contained herein, the
parties agree as set forth below.
ARTICLE II
Definitions
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"Confidential Information" shall mean all information relating to the
Proprietary Information, including but not limited to all know-how and technical
information created or discovered by XXXXX or HUMWARE, or any other person or
entity engaged by XXXXX or HUMWARE, relating to the Proprietary Information.
"Proprietary Information" shall mean any and all (i) discoveries and inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all United States, international, and foreign patents,
patent applications (either filed or in preparation for filing), patent
disclosures and statutory invention registrations, including all reissuances,
divisions, continuations, continuations in part, extensions and reexaminations
thereof, all rights therein provided by international treaties or conventions,
(ii) trademarks, service marks, trade dress, logos, trade names, corporate
names, and other source identifiers (whether or not registered) including all
common law rights, all registrations and applications for registration (either
filed or in preparation for filing) thereof, all rights therein provided by
international treaties or conventions, and all renewals of any of the foregoing,
(iii) all copyrightable works and copyrights (whether or not registered), all
registrations and applications for registration thereof, all rights therein
provided by international treaties or conventions, and all data and
documentation relating thereto, (iv) confidential and proprietary information,
trade secrets, know-how (whether patentable or nonpatentable and whether or not
reduced to practice), processes and techniques, research and development
information, ideas, technical data, designs, drawings and specifications, (v)
Software, (vi) coded values, formats, data and historical or current databases,
whether or not copyrightable, (vii) domain names, Internet websites or
identities used or held for use by the Seller, (viii) other proprietary rights
relating to any of the foregoing (including without limitation any and all
associated goodwill and remedies against infringements thereof and rights of
protection of an interest therein under the laws of all jurisdictions), and (ix)
copies and tangible embodiments of any of the foregoing, that are created or
discovered pursuant to this Agreement by or at the direction of XXXXX or
HUMWARE, or any person engaged by XXXXX or HUMWARE.
"Boondoggle Sports Network or (BSN)" shall mean HUMWARE's existing Digital
Signage Network which HUMWARE shall continue to operate at its sole discretion
during the term of the Agreement.
"Child Watch Network or (CWN)" shall mean the network that HUMWARE will create
and maintain during the term of the Agreement.
"HUMWARE Marks" shall mean those trademarks, tradenames and servicemarks that
are the property of HUMWARE time during the term of this Agreement.
"License" shall mean a license to use such Products and sale of the products
themselves or any sales associated to the products such as advertising.
"Development, Maintenance and Royalty Agreement" means this agreement by and
between HUMWARE and XXXXX.
ARTICLE III
Development, Maintenance and Payment for Child Watch Network
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HUMWARE agrees to develop to a commercial state of operation and maintain for
XXXXX and XXXXX agrees to have HUMWARE develop to a commercial state of
operation and maintain a digital signage network product to be named "Child
Watch Network" for the next five (5) year period.
HUMWARE will maintain and host the CWN and web site on servers owned,
maintained, or licensed from third parties by HUMWARE. HUMWARE or a third-party
provider will provide Telephone Support during normal business hours, MST.
HUMWARE will make commercially reasonable efforts to correct any problem with
the CWN and web site brought to its attention by XXXXX.
XXXXX shall own the world-wide irrevocable right to use, market, license, sell
and/or otherwise profit from the Child Watch Network and related Proprietary
Information.
XXXXX agrees to pay HUMWARE in accordance with the following schedule.
(a) $300,000 for the development of the network, of which Xxxxx has already
paid $30,000. The remaining $270,000 shall be payable as follows:
(b) Fifty Thousand ($50,000) Dollars due and payable with signing of this
agreement;
(c) Four (4) equal payments of Fifty-five Thousand ($55,000) dollars
payable beginning on July 1, 2007 and ending on October 1, 2007.
(d) A monthly maintenance fee payable starting on July 1, 2007 of $60,000
per month with 10% increases at the end of each calendar year. ($60,000 per
month year 1, $66,000 per month year 2, $72,600 per month year 3, 79,800
per month year 4, and $87,786 per month in year 5.
(e) a Five (5%) percent royalty to HUMWARE of all advertising revenue
generated by Xxxxx as a result of the Child Watch Network (the "Royalty").
Xxxxx shall pay HUMWARE within 15 days of the end of each month the
Royalty. Payment from XXXXX to HUMWARE shall be included with the written
report described below. All payments will be made in United States dollars,
at the address designated above by HUMWARE. During the term of this
Agreement, XXXXX agrees to provide a written report to HUMWARE within
thirty (30) days following the end month period detailing the calculation
of the Royalty payment including the quantity of advertising sold. For the
term of this Agreement and for a period of one (1) year thereafter, each
party shall maintain accurate and complete records reasonably required to
perform their respective obligations under this Agreement and to document
such performance. From time to time in reasonable intervals (but not more
than once every six (6) months), upon fifteen (15) business days prior
written notice, at HUMWARE's sole expense shall permit HUMWARE`s
independent auditors to review such records in order to verify compliance
with this Agreement. Any such audit shall take place during normal business
hours at XXXXX regular place of business and shall not unreasonably
interfere with XXXXX conduct of its business. In the event that such audit
reveals an underpayment of more than ten (10) percent of the amounts paid
to HUMWARE then XXXXX shall pay the reasonable costs of the audit.
ARTICLE IV
Termination on Occurrence of Stated Events
------------------------------------------
This Agreement shall terminate on the occurrence of any of the following events:
(a) Bankruptcy or insolvency of either party; or
(b) The attachment or the execution or other judicial seizure of substantially
all of XXXXX assets, where such seizure is not discharged within one-hundred
twenty (120) days.
(c) The attachment or the execution or other judicial seizure of substantially
all of HUMWARE's assets, where such seizure is not discharged within one-hundred
twenty (120) days.
ARTICLE V
Notices
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Any notice to be given hereunder by either party to the other may be effected
either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be addressed
to the parties at the addresses appearing in the introductory paragraph of this
Agreement, but each party may change the address of service by written notice in
accordance with this Paragraph. Notices delivered personally will be deemed
communicated as of actual receipt; mailed notices will be deemed communicated as
of three (3) days after mailing.
ARTICLE VI
Entire Agreement of the Parties
-------------------------------
This Agreement, all attached exhibits and all related documents referred to in
this Agreement constitute the entire agreement between the parties. This
Agreement supersedes and replaces any and all agreements, either written or
oral, between the parties hereto with respect to the subject matter of this
Agreement and contains all of the covenants and agreements between the parties
with respect to the Proprietary Information that is the subject hereof.
Each party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this Agreement shall be
valid or binding. Any modification of this Agreement will be effective only if
it is in writing signed by the party to be charged.
ARTICLE VIII
Partial Invalidity
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If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provisions will
nevertheless continue in full force without being impaired or invalidated in any
way.
ARTICLE IX
Assignment
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This Agreement may not be assigned by operation of law or otherwise without the
express written consent of HUMWARE and XXXXX (which consent may be granted or
withheld in the sole discretion of HUMWARE and XXXXX).
ARTICLE X
Indemnification
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XXXXX agrees to indemnify and hold HUMWARE harmless from all defects,
infringements, compliance with regulatory requirements, and all claims, losses,
costs, expenses, or all other liabilities which may occur from the use of CWN or
BSN by XXXXX or its subsidiaries or sublicenses that is subject of this
Agreement.
HUMWARE agrees to indemnify and hold XXXXX harmless from all defects,
infringements, compliance with regulatory requirements, and all claims, losses,
costs, expenses, or all other liabilities which may occur from the use of CWN or
BSN by HUMWARE or its subsidiaries or sublicenses that is subject of this
Agreement.
..
ARTICLE XI
Warranties
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LIMITATIONS OF WARRANTIES AND REMEDIES. HUMWARE MAKES NO OTHER WARRANTY, EXPRESS
OR IMPLIED. HUMWARE HEREBY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HUMWARE DOES NOT WARRANT
THAT OPERATION OF THE CHILD WATCH NETWORK OR BOONDOGGLE SPORTS NETWORK WILL BE
UNINTERRUPTED OR ERROR-FREE. SERVICES ARE PROVIDED AS IS AND WITHOUT WARRANTY.
IN NO EVENT WILL HUMWARE BE LIABLE TO XXXXX OR ANY THIRD PARTY FOR ANY DAMAGES
(EVEN IF HUMWARE HAS BEEN INFORMED OF THE REASONABLE POSSIBILITY OF SUCH
DAMAGES), INCLUDING ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE,
INDIRECT, OR SPECIAL DAMAGES, EXPENSES, LOST PROFITS, LOST DATA, LOST SAVINGS,
OR OTHER DAMAGES ARISING OUT OF THE SERVICES, THE USE OR INABILITY TO USE THE
NETWORKS, WEB SITES, OR IN ANY WAY RELATING TO THE SOFTWARE, THE NETWORKS, THE
WEB SITE, OR THE CONTENT. IN NO EVENT SHALL HUMWARE BE LIABLE, IN CONTRACT OR
TORT, FOR ANY AMOUNT IN EXCESS OF THE MONIES PAID BY CUSTOMER TO HUMWARE
PURSUANT TO THIS AGREEMENT.
ARTICLE XII
Specific Performance.
---------------------
The parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity, without the
necessity of demonstrating the inadequacy of money damages.
ARTICLE XIII
Term of Agreement
-----------------
This Agreement will be terminated on the anniversary five (5) years after the
date first written above or as mutually agreed in writing by the parties hereof.
ARTICLE XIV
Other Devices
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XXXXX and its potential sublicenses and subsidiaries agree to place the HUMWARE
name and/or logo in any press releases or on any marketing materials including
web sites, related to BSN or CWN.
HUMWARE acknowledges and agrees that:
(a) XXXXX and any subsidiary or assign shall be free to design, develop, own,
make, have made, manufacture, use, market, sell, and/or otherwise dispose of
products, software, systems, web sites or applications having performance
specifications which are not the same or similar as those which are the subject
matter of this Agreement.
HUMWARE and its potential sublicenses and subsidiaries have developed, own and
sell (and intend to continue to develop, own and sell) proprietary know-how and
designs of networks, software, systems and applications which are the same or
similar as those subject of this Agreement.
XXXXX acknowledges and agrees that
(a) HUMWARE and any subsidiary or assign shall be free to design, develop, own,
make, have made, manufacture, use, market, sell, and/or otherwise dispose of
networks, software, systems and applications having performance specifications
which are the same or similar as those which are the subject matter of this
Agreement.
ARTICLE XV
Governing Law and Resolution of Breach
--------------------------------------
This Agreement is entered into, accepted and is performable in Golden, Colorado,
for venue and all other purposes, and will be governed, construed and enforced
in accordance with and subject to the laws of the state of Colorado, except that
any conflict of laws rule of Colorado that may require reference to the law of
some other jurisdiction other than Colorado will be disregarded. In the event
there is a dispute between the parties as to the interpretation of or compliance
with any of the provisions of this Agreement, and the dispute is unable to be
resolved by them, such dispute shall be resolved in accordance with the rules of
the commercial panel of the American Arbitration Association with the exception
that discovery shall be conducted pursuant to the Federal Rules of Civil
Procedure. The arbitration panel shall provide findings of fact and conclusions
of law regarding any dispute submitted to arbitration. The hearing site for such
arbitration shall be in the Denver, Colorado metropolitan area, and any judgment
award may be submitted for confirmation by a competent court of Colorado, with
the decision to be binding upon the parties.
ARTICLE XVI
Attorney's Fees
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In the event any dispute arises under this Agreement, and the parties hereto
resort to litigation or arbitration to resolve such dispute, the prevailing
party in any such litigation or arbitration shall be entitled to an award of
costs and fees from the other party, which costs and fees shall include, without
limitation, reasonable attorneys' fees and legal costs. HUMWARE shall be
entitled to reimbursement for any reasonable attorneys' fees that it may incur
in collecting or enforcing payment of any monetary obligations as part of this
agreement. Nothing contained in this Agreement shall be construed as preventing
either party from seeking injunctive relief from a court of competent
jurisdiction.
WITNESS THE SIGNATURES of the parties hereto on the date and year referenced.
HUMWARE MEDIA CORPORATION
By:
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Name: Xxxx Xxxxxxxxxx
Title: President
XXXXX SYSTEMS INC.
By:
--------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief Operating Officer
C/x Xxxxx Systems, Inc.
0 Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
