Exhibit 10.1
LICENSE AGREEMENT
DATED FOR REFERENCE THE 18TH DAY OF JUNE, 2009
BETWEEN
LIFESPAN INC.
0000 X. Xxxxxx Xxx Xx.
Xxx Xxxxx XX 00000
(Hereinafter referred to as "Lifespan" or "Licensor")
OF THE FIRST PART,
AND:
CYTTA CORP.
000 Xxxxxxx Xxx, Xxxx Xxxxxx, XX 00000
(Hereinafter referred to as "CYTTA" or "Licensee")
OF THE SECOND PART,
RECITALS
A. Licensor has acquired a combined exclusive license to manufacture, distribute
and market unique technology, plans, patents, trade secrets, trademarks, service
marks, know-how and processes (collectively "proprietary information") for the
manufacture, distribution and marketing of various telephony based internet
access and computing Products and services related thereto. The Product
("License Unit(s)" or "Units"), and the Service Package ("License Service(s)")
(collectively "the System" or "Systems"), are as set out in Schedule A
B. Licensee desires to obtain an exclusive license to manufacture, market and
distribute the License Units, License Services and Systems in the USA in all
markets, utilizing Licensor's System and proprietary information and
acknowledges that use of such System and its proprietary information are subject
to controls and restrictions established by Licensor for the purpose of
maintaining a high level of uniform quality and goodwill in the provision, sale
and operation of License Units, License Services and Systems.
In consideration of the mutual covenants set forth herein, the parties hereby
agree to the following terms and conditions
ARTICLE ONE
DEFINITIONS
As used in this Agreement, the following terms have the definition set forth
below:
1.1 "Effective Date" means the earlier of the date on which this License
Agreement has been executed by the latter of the parties to do so or the
date set out above.
1.2 "Gross Sales" means the total of all sales of, transacted at, through or
through the use of, the License Unit(s), License Services(s) and System(s),
whether such sales are evidenced by check, cash, credit, exchange of
otherwise, exclusive of sales tax or other change imposed on sales by any
government authority. "Gross Sales" also includes all payments to Licensee
from Sub-Licensees from revenues generated at, through, or through the use
of License Units, License Services, and Systems.
1.3 "Net Revenue" shall be Gross Sales less all reasonable expenses permitted
according to generally accepted accounting principles, consistently
applied.
1.3 "Information Package" means the written technical information prepared by
the Licensor, including product manufacturing specifications, operating
manual and other materials, which set forth the details of the Product and
System.
1.4 "Territory" means the geographic area consisting of the USA on an exclusive
basis.
1.5 "Trademarks" means those, trademarks, copyrights, service marks and patents
set forth in the Information Package.
1.6 "Payments" means payments between Licensor and Licensee as stated in this
License Agreement and shall be made in the form of U.S. Dollars.
1.7 "Sub Licensees" means persons and entities who sub-license any or all of
the rights licensed to Licensee by Licensor under this Agreement.
ARTICLE TWO
GRANT OF EXCLUSIVE LICENSE
2.1 Licensor grants to Licensee a license to manufacture, sell, distribute,
operate, sub license and market the License Units, License Services and the
System and to sell, distribute, sublicense, use and operate the System in
the Territory, all as more specifically defined in Schedule B (herein the
"Licensee's Market") and the right to grant Sub-Licenses in connection with
the marketing, sale, distribution, sublicense, use and operation of License
Units, License Services, and the System upon the terms and subject to the
provisions of this Agreement. The grant of the above license shall be
exclusive in the Territory for the Licensee's Market.
2.2 Licensor grants to Licensee a license to use and display Licensor's
Trademarks in the Territory in connection with the operation of License
Units, License Services and the Systems and with regard to the Sub-Licenses
granted by Licensee, upon the terms and subject to the provisions of this
Agreement.
2.3 Licensee shall have the right but not the obligation to use the trademark
"ScreenPhone," "TaskStation" "WebTel," "MyWebTel" or "Lifespan" in its
advertisements, its daily operations and specifically represent and refer
to itself as the Licensee for the Territory for "Lifespan Inc" and
"XxxxxxxxXxx.xxx."
ARTICLE THREE
SITE LOCATION AND EXCLUSIVE TERRITORY
3.1 The License Units, License Services and the System shall be manufactured at
such locations as are chosen by the Licensee, but such choice of
manufacturer shall require the Licensee to ensure that all proprietary
aspects of the Product remain the sole and exclusive property of the
Licensor. The manufacture and distribution of the Product shall be located
in or outside of the Territory at locations ("Site Locations") to be
selected by Licensee (or Sub-Licensees) and approved by the Licensor,
subject to subsequent after manufacture and sale movement.
3.2 Subject to the terms of this Agreement, Licensor shall not directly or
indirectly sell distribute, use or operate License Units, License Services
or the System, or license or allow others to directly or indirectly sell,
distribute, use or operate License Units, License Services or the System,
within the exclusive Territory, in the Licensee's Market, during the term
hereof.
ARTICLE FOUR
TRADEMARKS
4.1 Licensee has no right, title or interest in or to any of the proprietary
information and Trademarks, except for Licensee's privilege and license
during the term hereof to display and use the same. Licensee shall not do
or permit any act or thing to be done in derogation of any of the rights of
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Licensor in connection with the Trademarks, whether during the term of this
Agreement or after. Licensee shall use the Trademarks only for the uses and
in the manner licensed under and as provided in, this Agreement. During or
after the term of this Agreement, Licensee shall not in any way dispute or
impugn the validity of the Trademarks, or the rights of Licensor to them,
or the rights of Licensor or other licensees of Licensor to use them.
4.2 Licensee may utilize and physically affix signs containing the Trademarks
at such places within or without the License Units, License Services, and
the System as shall be designated by Licensor in its Technical Manual.
Except as expressly permitted in the Technical Manual, Licensee shall not
erect or display any other signs, or display any other trademarks,
logo-types, symbols or service marks in, upon, or in connection with the
License Units, License Services and the System without Licensor's prior
written approval, this excludes off-site advertising. Upon the termination
of this Agreement for any reason, Licensee forthwith shall either deliver
and surrender up to Licensor each and all of the Trademarks, and any
physical objects bearing or containing any of the Trademarks; or obliterate
or destroy any Trademarks in Licensee's possession. Where required,
Licensee or Sub-Licensees shall obtain governmental approval to use
Trademarks, or register same and shall do so solely in the name of the
Licensor.
4.3 Licensee agrees promptly to notify Licensor and Licensor agrees to notify
Licensee, in writing, of the institution of any suit or action or any claim
of infringement against Licensee or Licensor for infringement based on use
of the Trademarks and proprietary information.
ARTICLE FIVE
TRAINING
5.0 Licensee shall have the exclusive obligation and right to train and
otherwise educate all Sub-Licensees throughout the Territory. Licensee
shall have the right to charge Sub-Licensees for said training and
education.
5.1 Licensor will provide an initial training program for up to 3 individuals
to be designated by Licensee, at a time and place to be designated by
Licensor, so that they will be trained in the complete operation and
management of the License Units, License Services, and the System. These
individuals must sign a confidentiality agreement approved by Licensor.
This training program shall provide basic guidance on all aspects of System
implementation and operation.
5.2 At Licensee's expense during the initial start up period for the initial
License Units, License Services, and the System shipped to the Territory,
the Licensor shall provide, if requested by Licensee, a qualified
representative to train and/or install the License Units, License Services,
and the System at the corporate headquarters of Licensee or at site
locations as deemed appropriate by Licensor and Licensee.
5.3 The cost of the initial training program instruction and assistance except
for personal meals, travel, lodging, and other personal expenses of
individuals receiving training shall be paid by the Licensor.
5.4 Should Licensee request additional assistance at site locations at any time
during the term of this Agreement following start-up, Licensor shall
provide a qualified representative at such times and places as may be
reasonable necessary and mutually convenient. Licensee shall pay all
reasonable personal expenses, plus $300.00 per day for each such
representative.
5.5 Licensor shall have the right from time to time to request Licensee and/or
its manager to attend and complete additional training courses or programs.
Licensee shall bear the cost of all expenses of such trainees. Licensor
shall determine the time and place of such training in its sole discretion,
except that Licensee shall have the option to have training at Licensee's
headquarters at Licensee's expense.
5.6 Licensor shall make itself available at its office for consultation and
guidance of Licensee in the operation and management of the License Units,
License Services and the System.
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5.7 Each party shall be responsible for obtaining all visas and other
immigration or travel documents required for their respective personnel in
the provision of training and assistance to License pursuant to this
Article 5.
5.8 During the term of this Agreement, the Licensor shall provide, software
technical support during normal business hours at Licensor's expense.
ARTICLE SIX
LICENSOR'S PRODUCT SPECIFICATIONS AND TECHNICAL MANUAL
6.1 Licensor shall provide to Licensee, upon execution of this agreement, 2
copies of Licensor's Product specifications and existing Technical Manuals.
At all times the Product specifications and Technical Manual shall be the
property of the Licensor and may not be disseminated, duplicated or copied
by Licensee.
6.2 Licensor retains the right to modify the Product specifications and
Technical Manual at Licensor's expense. Such modifications shall be
delivered to Licensee, and become effective and binding on Licensee 30 days
after delivery thereof to Licensee.
6.3 Licensee agrees to maintain the confidentiality of the contents of the
Product specifications and Technical Manual pursuant to Article 18 of this
Agreement. Licensee shall return to Licensor all copies of the Product
specifications and Technical Manual in its possession upon termination or
expiration of this Agreement. Additionally Licensee may make at its own
expense any and all modifications, design changes or upgrades to the
Product it deems appropriate, provided that all modifications, design
changes or upgrades shall become the property of the Licensor at the end of
the License term.
ARTICLE SEVEN
ADVERTISING
7.1 Licensee shall be responsible for its own advertising program and shall
bear the cost of same. In the event that in the future a mutually agreed
advertising program is established a separate agreement will be executed.
7.2 Licensee shall be responsible for providing the proper on site advertising.
This advertising shall include but not be limited to promotional personnel
(at Licensee's discretion to maximize sales), collateral material and
brochures.
7.3 Licensee shall have the exclusive right to initiate and maintain all
advertising relating to its license in all areas of the Territory.
7.4 Licensor shall furnish to Licensee all advertising and promotional
materials or artwork used by Licensor in its advertising at the best price
Licensor charges to others for such materials. Further, Licensee and Sub
licensee's shall have the express right to use for their advertising at the
best price Licensor charges to others for such materials all of the
Licensor's copyrighted materials, promotional materials, patents, any
brochures, signage, decals and the like materials. Licensor shall
immediately make all said materials available to the Licensee upon the
execution of this Agreement and upon any change, modification or addition
to materials, including all of the above listed items. Existing artwork,
brochures, collateral and promotional material in small quantities (less
than 25 each) will be provided free of charge. On orders over 25, a best
price shall be given. Licensor at its sole discretion, shall make available
to Licensee when possible, camera ready artwork, copy, film and negatives.
7.5 Licensee shall have the right to charge Sub-Licensees a fee for
Advertisement.
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ARTICLE EIGHT
GENERAL RESPONSIBILITIES OF LICENSEE
8.1 The site locations utilized by Licensee shall conform to the specifications
for the Licensed Units, License Services and System as set out in the
Technical Manual of the Licensor.
8.2 All equipment, fixtures, inventory, and supplies utilized in connection
with the License Units shall conform to applicable specifications set forth
in the Technical Manual, and Licensor shall have the right to inspect such
items during normal business hours for the purpose of ensuring compliance
with such specifications.
8.3 Licensee shall purchase and, at all times during the term hereof, maintain
policies of insurance with such minimum standards, coverages, and limits
(or such additional limits or types of coverage) as Licensee and Licensor
may from time to time agree is appropriate to the risks ensuing from the
Licensees use of the Licensed Units, License Services and System.
8.4 If Licensee has leased the premises for the License Units: (i) the lease
shall not grant to the landlord under the lease any rights against
Licensor, nor agree to any other term, condition or covenant that is
inconsistent with any provision of this Agreement. Licensee shall duly and
timely perform all of the terms, conditions, covenants and obligations
imposed under the lease.
8.5 Licensee shall prepare and file all necessary tax returns, and shall pay
any and all local, state/provincial and federal/national sales and use
taxes imposed or incurred, or levied or assessed by any governmental body,
in connection with any part of this Agreement, relating to any period prior
to closing date, or any of the goods and services sold or furnished by
Licensee in connection with the License Unit or License Services, promptly,
in full, when due, and before any delinquency.
8.6 Licensee shall not, during the term hereof and for a period of 2 years
following termination of this Agreement, engage in any business which
offers any device products or services which are competitive with the
License Unit, either as a proprietor, partner, investor, shareholder,
director, officer, employee, principal, agent, advisor or consultant.
8.7 Licensor may from time to time suggest prices for the goods and services
offered by Licensee. Licensee and Licensor agree that the prices suggested
by Licensor are recommendations only and are not mandatory. Nothing
contained in this Agreement shall be deemed a representation or warranty by
Licensor that the use of Licensee's suggested prices shall produce,
increase or optimize profits. Licensee further agrees to grant the Licensor
the ability to acquire Product from the Licensee at a price equivalent to
the full manufactured cost plus ten percent (10%).
8.8 Except as provided in Section 8.18 and Article 13 below, Licensee shall
protect, defend and indemnify Licensor, its subsidiaries, affiliates and
designees, and shall hold them harmless, from and against any and all
costs, expenses (including attorney's fees and court costs), losses,
liabilities, damages, claims and demands of every kind or nature, arising
in any way out of Licensee's operation of the License Unit.
8.9 Licensee agrees to use all commercially reasonable efforts to promote the
distribution, sale, and use of the Product.
8.10 Licensee agrees to maintain a sufficient inventory of the Product on hand
that it reasonably believes is need in order to fill anticipated or actual
orders expeditiously at all times during the course of this Agreement.
GENERAL RESPONSIBILITIES OF LICENSOR:
8.11 Licensor shall provide all information necessary for Licensee to
manufacture the License Units, License Services and the System that comply
with all applicable specifications as required to operate Licensed Units,
License Services and the System as intended. Licensor agrees to assist
Licensee to maintain, and to manufacturer a sufficient inventory of the
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Licensed Units, License Services and the System on hand in order to fill
actual orders expeditiously at all times during the course of this
Agreement.
8.12 Licensor shall be responsible for furnishing to Licensee all technical
information necessary to manufacture the License Units, License Services
and the System with the proper software and hardware programming for the
Licensees described use and agreed upon specifications. Licensee shall bear
the costs (if any) of any modification and variations to the Licensed
Units, License Services and the System, which are requested by Licensee to
be shipped and used in the Territory.
8.13 Licensor agrees to use all commercially reasonable efforts to promote the
distribution, sale and use of the Product through Licensee.
8.14 Licensor agrees to provide Licensee with all marketing and sales leads
related to the Licensee market, which they generate, and to fairly devote
its efforts to making Licensee a successful venture.
8.15 Licensor agrees to assist Licensee in arranging sufficient management
assistance to pursue the manufacturing, marketing and distribution of the
Product.
8.16 Licensor agrees to work with the Licensee in the design of all contemplated
changes in Licensed Unit and License Services and the System design and
price.
8.17 Licensor agrees to transfer to Licensee all rights, title and interest in
and to the "use and marketing" rights to the various new products and
product variations and applications currently being developed or
subsequently developed by Licensor, at no cost.
8.18 Licensor shall protect, defend and indemnify Licensee, its subsidiaries,
affiliates and designees, and shall hold them harmless, from and against
any and all costs, expenses (including attorney's fees and court costs),
losses, liabilities, damages, claims and demands of every kind or nature,
arising in any way out of the manufacture or design of the License Unit.
ARTICLE NINE
TERM AND RENEWAL
9.1 Unless sooner terminated in accordance with the provisions of this
Agreement, the term of this Agreement shall commence on the Effective Date
of this Agreement and shall terminate 10 years thereafter. If applicable
law in the Territory requires that Licensor give notice to Licensee with
respect to the expiration of the initial term, this Agreement shall remain
in effect on a month-to-month basis after the expiration of the initial
term until Licensor has given Licensee the notice required by applicable
law.
9.2 If Licensee has in all respects complied with the conditions set forth in
this Article 9.2, Licensee shall have the right, but not the obligation, to
enter into a Renewal Agreement for a term commencing on the day which
follows the last day of the initial term and terminating 10 years
thereafter. Licensee shall be entitled to enter into a Renewal Agreement
only if, at the time of Licensee's exercise of its right to do so, Licensee
shall have fully performed all of Licensee's obligations under this
Agreement and shall have received no more than two verified and justified
notices of default during any twelve (12) month period during the initial
term of this Agreement. If Licensor elects not to renew the Agreement,
notice shall be given six (6) months prior to expiration of term.
9.3 Unless otherwise expressly agreed in writing, the terms of the Renewal
Agreement shall be identical to those of Licensor's then-current form of
license agreement generally offered by Licensor for the System and License
Units, License Services and the System.
9.4 Licensee shall not be required to pay any initial license fee upon entering
into a Renewal Agreement.
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ARTICLE TEN
PAYMENTS TO LICENSOR/PURCHASES FROM LICENSEE
10.1 As an initial license fee, on the Effective Date, Licensee shall deliver to
Licensor a certificate representing six million (6,000,000) shares of the
Licensee's common stock.
10.2 As a continuing license fee Licensee shall also pay Licensor a sum equal to
the following, one half of one percent (.5%) of the Net Revenue derived by
Licensee from the sale and use of License Units, License Services, and the
System by Licensee or its Sub Licensee's, within the month following
billing collected by Licensee or its Sub Licensee's.
10.3 All payments provided for in this Agreement shall be made at Licensor's or
Licensee's (as the case may be) principal place of business in the manner
agreed. No later than 30 days following the end of each month during the
term hereof, Licensee shall, concurrently with its submission to Licensor
of monthly reports for such month pursuant to Article 12, pay to Licensor
the full amount of the royalty and license fees due to Licensor for such
month.
10.4 If Licensee is delinquent in the payment of any obligation, under this
Agreement, Licensee shall pay to Licensor a late payment fee of 2% plus a
percentage of the delinquent amount, calculated daily commencing on the
first day that the payment is delinquent and terminating on the day the
delinquent amount is paid. Such percentage shall be eighteen (18%), on an
annualized basis. Notwithstanding the foregoing, if the amount of the late
payment fee is greater than the amount permitted by applicable law, then
such fee shall be reduced to an amount equal to the maximum lawful fee, it
being the intention of the parties that such late payment fee shall in no
event be greater than that permitted by law.
10.5 All funds due and owing from royalties and/or License fees and other weekly
and monthly amounts other than payment for the License Units, License
Services and the System parts, materials or initial licensing fees shall be
paid in U.S. Currency. The funds paid to Licensor shall be converted into
U.S. Currency on the first day of the month in which the payment is to be
paid, and all payments to be made in ACH or wire transfer form, unless
another method is requested by Licensor.
ARTICLE ELEVEN
RECORDS AND REPORTING
11.1 Licensee shall prepare a separate monthly report setting forth Gross Sales,
and calculating Net Revenue and such other data as Licensor may reasonably
request, for each weeks' business operations at the License Units, License
Services and the System, on a form required pursuant to the Technical
Manual. With respect to each month during the term hereof, Licensee shall
deliver the weekly reports, assembled for such month, to Licensor not later
than 30 days following such month. Licensor shall have the option via
computer network, to access the daily reports. If Licensor gains access in
this manner Licensee need only submit a monthly statement.
11.2 No later than 45 days after the expiration of each quarter of Licensee's
fiscal year and 90 days after the expiration of each fiscal year, during
the term hereof, Licensee shall furnish a statement of profit and loss in
U.S. Dollars for such respective quarter and fiscal year and a balance
sheet as of the end of such quarter and fiscal year certified to be true
and correct by Licensee.
ARTICLE TWELVE
RELATIONSHIP OF PARTIES
12.1 Licensee is and shall be considered an independent contractor with entire
control and direction of its business and operations, subject only to the
conditions and obligations established by this Agreement. No agency,
employment, or partnership is created by this Agreement. Licensee's
business is separate and apart from any that may be operated by Licensor.
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Neither party to this Agreement shall make any representations tending to
create apparent agency, employment, or partnership. Neither party will have
authority to act for the other in any manner to create obligations or debts
binding on the other, and neither party will be responsible for any
obligations or expenses whatsoever of the other. Neither Licensee nor any
person performing any duties or engaged in any work on the premises at the
request of Licensee shall be deemed an employee or agent of Licensor.
ARTICLE THIRTEEN
MANUFACTURE/WARRANTY
13.1 Licensee shall manufacture or arrange the manufacture of the License Units,
License Services, and the System from Licensor and sell to Licensor
therefore at the wholesale price in effect at the time Licensor's order is
received, less any applicable discount.
13.2 Licensor agrees to make an initial purchase from the Licensee an aggregate
of 200 License Units, License Services, and Systems when they have been
manufactured for use with its medical peripherals.
13.3 Licensor agrees to make purchases of an aggregate of Licensed Units,
License Services, and Systems from Licensor of not less than the following
number of License Units, License Services, and Systems for each of the
following periods:
Calendar Year 2010: 5,000
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Calendar Year 2011: 7,000
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Calendar Year 2012: 10,000
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13.4 Should Licensor be unwilling or unable to purchase such number of License
Units as is specified in Section 13.3 or make payments in lieu as provided
hereunder then Licensee shall have the right to retain and/or convert the
Licensor's Royalty Payments into payment in lieu.
13.5 Warranty of Title.
13.5.1 Licensor warrants that Licensor has all right, title and interest and, to
and under the License Unit, License Services and the System and all
related proprietary information, and has all rights to license, sell and
distribute the same to Licensee, free of any rights (proprietary or
otherwise) of any other person or entity or any other encumbrance.
13.5.2 Licensor shall indemnify, defend an hold harmless Licensee and any
Sub-Licensees against any and all claims charges, damages, costs, and
actions asserted by any person or entity that the License Units, License
Services or the System, or Licensee's use, sale, operation or
distribution thereof, under this Agreement violates the trade secret,
trademark, copyright, patent or other proprietary right of any other
person or entity. Licensee shall notify Licensor of the assertion of any
such claim and shall cooperate with Licensor in the investigation and
resolution thereof.
13.5.3 Licensor shall not indemnify Licensee against any claim or liability
based on Licensee' modification or conversion of the Product and/or the
subsequent use of that modification or conversion.
13.6 Limited Warranty.
Licensee warrants the License Units, License Services, and the System to be free
from defects in workmanship for a warranty period of one (1) year from the date
of delivery, to persons who purchase the Product from Licensee.
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13.7 Warranty Service.
Licensee shall, at its own expense and option, either repair or replace any
defective items of the Product during the warranty period, provided that
Licensor has notified Licensee and, upon inspection by Licensee, Licensee has
found the Product to be defective. Licensor sole and exclusive remedy under this
Agreement shall be limited to the repair or replacement specified herein.
13.8 Warranty Conditions.
The foregoing warranties are contingent on the proper use of the product in
accordance with the instructions and specifications published by Licensor and
shall not apply to any Product that has been repaired or modified by persons
other than Licensor.
13.9 Warranty Disclaimer.
The express warranties set forth in this Agreement are in lieu of all other
warranties, express or implied, including without limitation any warranties of
merchantability of fitness for a particular purpose.
ARTICLE FOURTEEN
TRANSFER OF INTEREST
14.1 Licensor has the right to assign this Agreement, and all of its rights and
privileges. The assignee shall be financially responsible and capable of
performing the obligations of Licensor; and shall assume and agree to
perform all Licensor obligations under this Agreement.
14.2 With respect to Licensee's obligations, this Agreement is acknowledged to
be a personal one, being entered into in reliance upon and in consideration
of the singular skill, character, and qualifications of Licensee and its
principals, and owners and the trust and confidence reposed therein by
Licensor. Therefore, Licensee may not effect an assignment, voluntarily or
involuntarily, by operation of law or otherwise, in any manner, without the
prior written consent of Licensor which consent shall not be unreasonably
withheld. Licensor may impose, among other things, the following conditions
precedent to its consent to an assignment: (i) that the assignee (or the
principal officers, shareholders or directors of the assignee in the case
of a corporate assignee) has the skills, qualifications and economic
resources necessary in Licensor's judgment, reasonably exercised, to
conduct the business contemplated by this Agreement, and to fulfill the
assignee's obligations to the Licensor ; (ii) that as of the date of any
such assignment, Licensee shall have fully complied with all of its
obligations to Licensor under this Agreement; (iii) that the assignee
assumes all of the obligations of Licensee under all leases for the License
Units, License Services and the System, and that Licensee shall not be in
default with respect to any of its obligations under said leases; (iv) that
assignee pay to Licensor the sum of five thousand dollars ($5,000) as a
transfer fee; (v) that in the event of an assignment of this Agreement,
Licensor shall require the assignee to execute a new agreement in the form
and on the terms and conditions then being offered by Licensor to
prospective licensees similarly situated, except that the assignee shall
not be obligated to pay an initial license fee. The term of the new
agreement shall expire on the date provided herein for the expiration of
this Agreement. The execution of the new License Agreement shall, except
for the post-term obligations of Licensee under this Agreement, be deemed
to terminate this Agreement; (vi) that the assignee, or a manager
designated by the assignee, shall have satisfactorily completed at
assignee's cost and expense, the initial training program then required of
all new licensees of Licensor, unless such training is waived by Licensor,
in writing.
14.3 If the Licensee at any time ceases to be, a publicly traded company, the
transfer in the aggregate of more than fifty percent (50 %) of the capital
stock or voting power of Licensee if it is a corporation or of more than a
fifty percent (50 %) interest if it is a partnership, as such parties were
originally constituted at the time of the execution of this Agreement,
shall be deemed to be an assignment of this Agreement within the meaning of
this Article.
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14.4 Licensee shall have no right to pledge, encumber, hypothecate or otherwise
give any third party a security interest in its rights under this Agreement
in any manner whatsoever without the prior written permission of Licensor,
which shall not be unreasonably withheld.
ARTICLE FIFTEEN
TERMINATION
15.1 Licensor shall have the right to rescind this Agreement forthwith if,
within 30 days after the Effective Date, Licensee has not reasonably
complied with the initial training requirements pursuant to Article 5. If
Licensor exercises its right to terminate pursuant to this Article 15.1,
this Agreement shall be null, void and of no effect, and neither party
shall have any further right or obligation to the other, except those
obligations which by their nature survive such rescission, provided
however, that Licensee's initial fee pursuant to Article 10.1 shall be
refunded in full to Licensee.
15.2 Licensor may terminate this Agreement for the following defaults:
(i) Except with respect to Licensee's failure to pay any of the sums due
Licensor under this Agreement, or any related or ancillary agreement
between the parties, and except as expressly provided in this Agreement,
Licensor may terminate this Agreement upon a material breach by Licensee of
any material provision of this agreement, but only upon 30 days prior
written notice to Licensee, setting forth the material breach of which
Licensor complains. If Licensee cures such breach before the end of such
period, then Licensor shall have no right to terminate this Agreement
because of such breach. However, if, because of the nature of such breach,
Licensee is unable to cure such breach within such 30 day period, Licensee
shall be given such additional time as is reasonably necessary within which
to cure such breach, upon condition that Licensee, upon receipt of such
notice from Licensor, shall have immediately commenced to cure such breach
and shall continue to use diligence and all reasonable commercial efforts
to do so.
(ii) With respect to any breach by Licensee of its obligation to pay any sums
due under this Agreement, Licensor may terminate this Agreement upon not
less than 10 days prior written notice of such breach. If Licensee cures
such breach before the end of such period, then Licensor shall have no
right to terminate this Agreement because of such breach.
15.3 Licensor shall have the right to terminate this Agreement immediately
without prior notice to Licensee, upon the occurrence of any or all of the
following events, each of which shall be deemed to be an incurable breach
of this Agreement which Licensee shall have no right or opportunity to
cure.
(i) If Licensee is adjudicated bankrupt or judicially determined to be
insolvent (subject to any contrary provisions of any applicable laws),
admits Licensee's inability to meet its financial obligations when due, or
makes a disposition of all or a substantial part of its assets to or for
the benefit of its creditors, or if the License Unit or premises are
seized, taken over or foreclosed by a government official in the exercise
of such official's duties, or by a creditor, lienholder or lessor, or if a
judgment against Licensee in the amount of more than $50,000.00 remains
unsatisfied (unless an appeal is filed) for a period of more than 60 days.
(ii) If Licensee is convicted of any felony, or any crime involving moral
turpitude or otherwise relevant to the operation of the License Units,
License Services and the System;
(iii)If Licensee purports to sell, assign, transfer, pledge, hypothecate, or
encumber, in whole or in part, this Agreement or License Units or License
Services and the System in violation of the terms hereof.
(v) If an audit or investigation conducted by Licensor discloses that Licensee
has fraudulently understated Gross Sales or Net Revenue or has fraudulently
withheld the reporting of Gross Sales or Net Revenue.
10
(vi) If in Licensor's reasonable judgment, Licensee's continued operation will
result in an imminent danger to public health or safety.
15.4 If any valid applicable law or regulation of a governmental authority
having jurisdiction over this Agreement and the License Unit limits
Licensor's rights of termination under this Agreement or requires longer
notice periods than those set forth above, this Agreement shall be deemed
amended to conform to the minimum notice periods or restrictions upon
termination required by such laws and regulations. Licensor shall not,
however, be precluded from contesting the validity, enforceability or
application of such laws or regulations in any action, arbitration, gearing
or dispute relating to this Agreement or to its termination.
15.5 In the event of termination of this Agreement, whether by reason of
default, lapse of time or other cause, Licensee shall forthwith discontinue
the use of the Trademarks, and shall not thereafter operate or do business
under any name or in any manner that might tend to give the general public
the impression that Licensee is operating a License Unit, License Services,
or a System and Licensee shall not thereafter use, in any manner, or for
any purpose, directly or indirectly, any of Licensor's trade secrets,
procedures, techniques or materials acquired by Licensee by virtue of the
relationship established by this Agreement, including, without limitation
to the foregoing:
(i) any manuals, bulletins, instruction sheets and supplements thereto.
(ii) any forms, advertising matter, marks, devices, insignia, slogans and
designs used from time in connection with the License Unit or Product;
(iii)any Trademarks, or trade names and patents now or hereafter applied for or
granted in connection therewith, and if Licensee fails or refuses to do so,
Licensor may execute, in Licensee's name and on Licensee's behalf, any and
all documents necessary to cause the discontinuance of Licensee's use of
trade names and Trade marks, and/or any other related name used under this
Agreement. Licensee hereby irrevocably appoints Licensor as Licensee's
attorney-in-fact to do so.
15.6 The termination of this Agreement shall be without prejudice to the rights
of Licensor against Licensee and Licensee against Licensor and such
termination shall not relieve Licensor or Licensee of any of its
obligations to each other or terminate those obligations of Licensor or
Licensee, which by their nature, survive the termination of this Agreement.
15.7 In the event Licensor is adjudicated a bankrupt under Chapter 7 of the
United States Bankruptcy Code, Licensee shall have the right to all
information, licenses, software manuals, actual programs, software provider
names and addresses and any other material whether copyrighted or patented,
that might assist the Licensee in utilizing the software that is part of
the subject of this Agreement to be used in the License Units, License
Services and the System.
15.8 (a) Upon the expiration or termination of this Agreement, Licensee shall
have no further right to offer or enter into any additional Sublicense
Agreements; and Licensor may itself open, own or operate, or license others
to open own or operate License Units, License Services and the System in
the Territory.
(b) Upon the expiration or termination of this Agreement for any reason,
Licensee shall at Licensee's election, assign to Licensor its rights and
interest in each and every Sublicense or at Licensor's election assign such
Sublicenses to other Licensees of Licensor.
15.9 In the event of termination of this Agreement, whether by reason of
default, lapse of time or other cause, the Licensee's users of shall have
the continued right to use and operate the License Units, License Services
and Systems in their possession.
11
ARTICLE SIXTEEN
DISPUTE SETTLEMENT
16.1 In the event of any dispute or difference arising out of or relating to
this Agreement or the breach thereof, the parties hereto shall use their
best endeavors to settle such disputes or differences. To this effect, they
shall consult and negotiate with each other, in good faith and
understanding of their mutual interests, to reach a just and equitable
solution satisfactory to the parties. If they do not reach such solution
within a reasonable period of time, then the disputes or differences shall
be finally settled by an Arbitration before an arbitration panel operating
in accordance with the Rules of Conciliation and Arbitration of the
International Chamber of Commerce.
16.2 The arbitration panel shall be formed of 3 (three) arbitrators, to be
appointed by proper authority. The arbitration shall take place at Las
Vegas, Nevada. The arbitrators shall resolve any dispute or controversy in
accordance with the wording and spirit of this Agreement, and, if there are
no controlling provisions, in accordance with the laws of Nevada.
16.3 The arbitration award shall be final and binding on the parties, not
subject to any appeal, and shall deal with the question of costs or
arbitration and all matters related thereto. The arbitration proceedings
shall be conducted in English and the arbitration award shall be written in
English.
16.4 Judgment upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for a judicial
recognition of the award or an order of enforcement thereof, as the case
may be.
ARTICLE SEVENTEEN
FORCE MAJEURE
The performance or observance by either party of any obligations of such party
under this Agreement may be suspended by it, in whole or in part, in the event
of any of the following which prevents such performance or observance: Act of
God, war, riot, fire, explosion, flood, sabotage, injunction, compliance with
governmental laws, regulations, orders or action, or any other cause beyond the
reasonable control of such party; provided, however, that the party so prevented
from complying with its obligations hereunder shall immediately notify in
writing the other party thereof and such party so prevented shall exercise
diligence in an endeavor to remove or overcome the cause of such inability to
comply.
ARTICLE EIGHTEEN
CONFIDENTIALITY
18.1 Licensee shall hold in confidence any and all information disclosed to it
by Licensor concerning the System, business and marketing plans or
strategies, operations and technical advice and any and all other
information of a sensitive business or technical nature arising under this
Agreement. With respect to all such information, Licensee shall not
disclose the same to others without the Licensor's prior written consent
and to limit dissemination of the same among Licensee's personnel to those
persons having a need to know it for performance of duties under this
Agreement. Licensee shall use such information only for the purposes
contemplated by this Agreement.
18.2 The foregoing obligation concerning confidentiality and limitations on use
of information shall apply for a period five (5) years after the date of
expiration or termination of this Agreement except insofar as such
information is published or otherwise in the public domain at the time it
was disclosed to Licensee or thereafter becomes published or part of the
public domain through no fault of Licensee; or is obtained by Licensee in
good faith without restrictions on disclosure or use from a third person
who did not derive it from Licensee.
12
ARTICLE NINETEEN
INTEGRATION OF AGREEMENT: AMENDMENT
19.1 This Agreement constitutes the entire agreement between the parties with
reference to the subject matter of this Agreement and supersedes all prior
negotiations, understandings, representations and agreements, if any.
Licensee acknowledges that it is entering into this Agreement as a result
of its own independent investigation and not as a result of any
representations of Licensor, its agents, officers or employees, not
contained in any offering circular, prospectus, disclosure document, or
other similar document required or permitted to be given to Licensee
pursuant to applicable law.
19.2 This Agreement, including but not limited to, this provision, may not be
amended orally, but may be amended only by a written instrument signed by
the parties.
ARTICLE TWENTY
MISCELLANEOUS
20.1 Any notice required or permitted to be given under this Agreement shall be
in writing in the English language and may be hand delivered, telexed,
cabled, sent via facsimile or mailed by airmail (return receipt requested,
postage prepaid) and shall be deemed given when received. Notices shall be
addressed as follows:
(a) Notices to Licensor: address first written above
(b) Notices to Licensee: address first written above
20.2 English language shall be controlling for all purposes,. and any language
translation shall not affect the meaning or interpretation of the
Agreement.
20.3 This Agreement is executed in two originals, all in the English language.
20.4 The headings contained in the Agreement are for reference purposes only and
shall not affect the meaning or interpretation of the Agreement.
20.5 Either party's waiver of any breach, or failure to enforce any of the terms
and conditions of this Agreement, at any time, shall not in any way affect,
limit or waive such party's right thereafter to enforce and compel strict
compliance with every term and condition of the Agreement.
20.6 The construction, performance and completion of this Agreement is to be
governed by the laws of Nevada, USA, without giving effect to the
principals of conflicts of law thereof.
20.7 Licensor acknowledges that Licensee may be required by the laws applicable
in the Territory to disclose and/or register this Agreement with
governmental authorities, and consents to such disclosure, provided
however, that Licensee shall inform Licensee of all such required
disclosures and/or registrations made by Licensee. All such registrations,
shall, unless prohibited by local law, identify Licensee as a Licensee of
Licensor.
13
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Lifespan Inc.
By: /s/ Xxx Berscht
--------------------------------
Xxx Berscht, CEO
Cytta Corp.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx, CEO
14
SCHEDULE A
Product Descriptions:
"ScreenPhone" is a Internet capable telephone with a touch screen and keyboard
attached with a proprietary operating system upgradeable from the following
original manufactured features:
Item Description
---- -----------
Size & color 30.1*28.4*11.4cm, Silver Xxxx
Power External Power Adapter (+5V 3A, AC 80~230V)
OS Proprietary Linux Xxxxxx
XXX XX0000
Flash Memory 256MB
DRAM 512MB
Extra Memory Smart media Card (4GB)
LCD 8.2" STN
Available N/W Interface ISDN (2 channels are available)
(Internet / Call) - Internet: PPP/MLPPP through ISDN
- Call: ISDN basic & supplementary SVC
ADSL (External ADSL modem required)
- Internet: PPP over Ethernet
- Call: PSTN
Ethernet (for Internet or VoIP) + PSTN (for Call)
Input Device Touch Screen
Screen Key pad
QWERTY Key Board
Printer Parallel/USB
Card Reader Smart Card Application (ISO7816, EMV)
Rest Page (based on HTML) Basic Function
Fixed Advertisement
Dynamic Advertisement
Web based user guide
Browser HTML / HTTP
DHTML, DOM level 0, CSS1
Image Display (JPEG /Ani. GIF )
SSL v2, v3 with RC4 encryption
SET 1.0 Preparation
Cookies
Bookmark
Click to Call Tag/Mail Tag
JAVA Applet
JAVA Script 1.4
Plug-ins (Flash**, Real G2**, MP3**, Quicktime**)
15
E-Mail IMAP4, POP3 Protocol
SMTP Protocol
Multiple mail boxes
MIME 1.0 Message Format
Multiple Attachment for Forwarding
HTML Link Connection
Assistant Calendar, Scheduler, To Do List, Address Book,
Memo/Scratch Pad*, Calculator*, Synchronization
Filters*
Catalog Service Web based Yellow Page Service
Voice Mail Notification, Visual and Connection
Basic Telephone Outgoing Call
Incoming Call
Handset or Speaker Phone or Wireless (optional)
Volume Control
Hold & Hold Recall
Speed Dial
Redial
Chain Dial
Mute
Call Log
ISDN Supplementary Call Forwarding Unconditional(CFU)
Service Call Forwarding on No Reply(CFNR)
Call Forwarding on Busy(CFB)
MSN option based CF services
Message Waiting Indication
Call Waiting(CW)
Hold
Three Party Service (3PTY)
Call Completion on Busy Subscriber(CCBS)
User Controlled CLIR
Key Pad Facility
Answering Record Time ; 15 Minutes
Software Download Program Upgrade
User Configuration Data Update
Restpage Update
Advertisement Update
Plug & Play Automatic Registration
Automatic Configuration
Initial S/W Download
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"Taskstation":
Hardware: Panel PC Type configuration (high quality Industrial Grade
construction), cast and brushed aluminum case, AMD Xxxxx 1.2Ghz CPU or greater,
256MB DDR RAM (Expandable to 1.0 Gigabytes), Net boot or stand alone 20GB, 40GB
or 60 Gigabyte Hard Drive Options, 15" high quality TFT screen, 10/100 Ethernet,
USB ports (four), Serial port, 4 USB ports, Sound Jacks, Wireless Modem,
Universal mount allowing for 180 Degree swivel, wall mount, horizontal or
vertical desktop mount, or negative angle for overhead setup, 1 short PCI
peripheral add on card, USB telephone handset (headset or wireless versions also
available). Multiple keyboard options (including IR), SmartCard reader, CD/RW or
DVD player, Built in video camera, Biometric authentication options. Software:
Linux or Windows may be installed at user's discretion; however the base
configuration will include a proprietary OS.
Services Description: remote services provided for web based E-Mail, voice
messages, messenger, voice over IP (VoIP), remote file storage, anonymous web
surfing, portal, and software updates.
System Description: turnkey solution of product hardware, OS and supporting
services requiring no special software installation or configuration on behalf
of the end user with the exception of device/network setup when applicable.
17
SCHEDULE B
1) The extent of the exclusive license granted hereunder for the Territory is
to manufacture, distribute and market the Units, Services and System in the
USA
18
