Exhibit 10.7
Licensing Agreement (Global Interconnect Corporations, Inc.)
LICENSING AGREEMENT
THIS LICENSING AGREEMENT ( The "Agreement"), effective as of the 21st
day of May, 1999, is between GLOBAL INTERCONNECT CORPORATION, INC. ( "Licensor")
and AVALON-XXXXXX COMPANIES, INC. ( "ABCO")
WHEREAS, Licensor claims certain rights, interest in and to certain
technology and technical know-how;
WHEREAS, ABCO desires to obtain a license to use said technology.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the receipt and adequacy of which is hereby acknowledged, the
parties hereto intending to be legally bound, agree as follows:
1. DEFINITIONS
As used herein, the term:
(a) "License Period" shall mean the period beginning with the effective
date of this Agreement and ending on the date that Licensor has any further
rights to the Technology.
(b) "Licensed Product" shall mean any software, hardware or other
product or process that relies upon or uses any of the technology.
(c) "License Product Improvements" shall mean all inventions,
discoveries, techniques, systems, methods, processes, improvements,
developments, enhancements and modifications, whether or not patentable,
commercially useful or reducible to writing or practice, that ABCO may
hereafter, either solely or jointly with the efforts of its officers, employees,
agents or others, acquire, discover, invent, originate, make, develop, conceive
or otherwise acquire rights to, in whole or in part.
(d) "Patent Rights" shall mean any United States patent that may issue
from United States patent application Serial Numbers listed in EXHIBIT "A"
attached hereto and made a part of this Agreement, as well as any corresponding
international patent applications, and the patent applications and resulting
patents claiming priority from or based on the aforesaid United States patent
application Serial Numbers, and all continuations, divisions, reissues, and
extensions thereof known by Licensor or under which Licensor now has the right
to grant licenses.
(e) Technical Know-how" shall mean all pertinent and available
technical Know-how for using the Technology, including technical drawings,
software and source codes, data sheets, manuals, protocols and the like referred
to on EXHIBIT "A".
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(f) "Technology" shall mean the patent rights and Technical Know-How.
2. LICENSE GRANT
(a) Upon the terms, payments and conditions set forth herein, Licensor
hereby grants to ABCO an irrevocable exclusive, worldwide, fully paid up and
fully transferable license for the License Period to make, have made, use,
develop, improve and sell the Technology and the Licensed Product Improvements
wherever in the world and however ABCO chooses.
(b) The license herein granted is transferable and assignable. ABCO may
sub-license, convey, pledge, encumber or otherwise dispose of this agreement or
any right, title or interest thereunder without the prior written consent of
Licensor.
(c) ABCO shall have the right but in no way be obligated to bring in
its own name to enforce the Technology and the license hereunder, in which event
licensor shall at the request of ABCO do any and all lawful acts to execute any
and all proper documents required by ABCO in aid of such enforcement.
3. ROYALTIES
On execution of this agreement, ABCO has paid Licensor a royalty of
Twenty Thousand and No/100 U.S .Dollars ($20,000 00) as a lump sum fee for the
license granted herein.
4. WARRANTY
Licensor represents and warrants to ABCO that:
(a) The Technology and Licensor's rights therein are subsisting and
have not been adjudged invalid or unenforceable, in whole or in part;
(b) Licensor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Technology, free and clear
of any liens, charges and encumbrances, including without limitation licenses,
shop rights and covenants by Licensor not to xxx third persons;
(c) No dispute, right of setoff, counterclaim, or defenses exist with
respect to Licensor's title to any part of the Technology;
(d) It has the unrestricted right to license the Technology and to
enter into this Agreement;
(e) The Technology is free from any know defects and shall operate in
accordance with the description of the Technology, functional and performance
specifications and standards set forth in EXHIBIT "A".
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5. COVENANTS
(a) Licensor covenants and agrees:
(i) from time to time promptly to execute and deliver to ABCO all
such other assignments, certificates, supplemental documents, and financing
statements. and do all other acts or things, as ABCO may reasonably request in
order to more fully license the Technology to ABCO;
(ii) promptly to notify ABCO of any claim , action or proceeding
which could affect Licensor's title to or materially and adversely affect the
value of the Technology, or any part thereof, or the effectiveness of the
Technology, and, at the request of ABCO, appear in and defend, at Licensor's
expense, any such action or proceeding;
(iii) to do all things reasonably necessary or appropriate to
enable ABCO to fully exercise its rights under this Agreement.
(b) Licensor covenants and agrees that without the prior written
consent of ABCO, Licensor will not:
(i) license, sell, assign, lease or transfer any of the
Technology; or
(ii) create in favor of anyone, except ABCO, any other interest in
any of the Technology, or in any part thereof, or otherwise encumber or permit
the same to become subject to any lien, attachment, execution, sequestration, or
other legal or equitable process; or
(iii) Permit any part of the Technology to be subjected to any
unpaid charge, including rent and taxes, or any subsequent interest of a third
party, whether such interest is created voluntarily or involuntarily.
6. INDEMNITY
In the event that anyone commences an action challenging Licensor's
right to license the Technology or commences an action claiming that the use of
the Technology pursuant to this Agreement directly or contributorily infringes
or violates any third party's rights, Licensor shall indemnify ABCO and hold it
harmless from and against all damages, losses, expenses, and attorney's fees,
arising out of any infringement or other action. After written notice from ABCO,
Licensor shall, at its sole expense, defend any such actions with counsel
satisfactory to ABCO.
7. NOTICES
(a) All notices, requests, demands and other communications under this
Agreement or in connection therewith shall be given to be made upon the
respective parties hereto as follows:
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To Licensor: 000 Xxxxx Xxxxxx
Xxxxxxxxxx XX 00000
Fax: 000-000-0000
To ABCO: Avalon-Xxxxxx Companies Inc.
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Fax: 000-000-0000
(b) All notices, requests, demands and other communications given or
made in accordance with the provisions of this Agreement shall be made in
writing, and shall either be: (i) forwarded by reputable overnight courier
(e.g., FedEx) marked and billed or prepaid for next business day delivery to the
proper address listed above; or (ii) sent by facsimile to the number identified
above. Notice made by overnight courier shall be deemed to have been given on
the next business day after delivery to such courier as specified. Notice given
via facsimile shall be deemed to have been given when confirmation is received
from the sender's fax machine to the fax number specified in the preceding
paragraph.
8. MISCELLANEOUS
(a) This Agreement shall be binding upon and inure to the benefit of
Licensor and ABCO and their respective legal representatives, successors, heirs,
and assigns.
(b) This Agreement shall be deemed to be a contract made under the laws
of the State of Alabama.
(c) If any provision of this Agreement is determined to be illegal or
invalid or in the event that any provision hereof would cause this Agreement to
be deemed an "executory contract" with respect to the Licensor, then this
Agreement shall be construed as if such provisions did not appear herein, and
the remaining provisions of this Agreement will continue in full force and
effect, it being specifically intended that neither the License Period nor this
Agreement shall terminate as a result of the initiation of any bankruptcy or
other debtor reorganization or liquidation proceedings by or against licensor
ABCO.
(d) This Agreement embodies all of the understandings and obligations
between the parties with respect to the subject matter hereof, superseding all
prior communications, both oral and written. No amendment, modification,
extension or renewal of this Agreement shall be valid or binding upon the
parties unless made in writing, signed on behalf of the parties by its proper
officer thereunto duly authorized.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
GLOBAL INTERCONNECT CORPORATION,
INC.
By: /s/ H.G. "XXXXX" XXXXXXXXX
---------------------------------
Title: Chairman
-------------------------------
AVALON-XXXXXX COMPANIES, INC.
By: /s/ DAS X. XXXXXX
---------------------------------
Title: CEO
-------------------------------
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EXHIBIT "A"
Any and all Technical Know-how, Patent Rights and Licensed Products
relating in any way to digital cable ad-insertion, including but not limited to
all technology, software and hardware known as or made a part of the OPTICERTER,
OPTI-COR, OPTI-COMM, NCERTeR and CALPRo. This License expressly includes Patent
# 5,535,229, and any and all applications, improvements or upgrades to the
technology represented by patent # 5,535,229.
