PURCHASE AGREEMENT
THIS AGREEMENT is made this 9th day of October, 1998, between
Xxxxxx Xxxxxx and Xxxx Xxxxxx ("Seller") and Webquest
International, Inc., a Nevada corporation (hereinafter, "Buyer")
WHEREAS, Seller has developed through its research and
development and is the owner of and possesses a certain on-line
computer game commonly known "SCAVENGERnet", identified with the
URL address of "xxx.xxxxxxxxxxxx.xxx" (hereinafter, the "Game"),
and related software programs, trade names, trademarks, promotional
material, marketing strategies, customer base and intellectual
property hereinafter referred to as the "Property"); and
WHEREAS, Buyer desires to purchase the Property and all rights
associated with the Property; and
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties in this agreement and
other consideration the adequacy and receipt of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE 1: SALE OF PROPERTY
1.1 Seller hereby sells, grants, transfers, and assigns to
Buyer, it's successors and assigns, all rights, title, and interest
in and to the property and all work and materials relating to the
Game including programming source code, system analysis pertaining
to all phases of the operation of the "Website" developed by
Seller, and the customer base and marketing strategy for the Game.
Specifically, the Property including the Property identified and
set forth EXHIBIT "A" attached hereto and incorporated herein by
reference.
1.2 The rights and information transferred herein consisting
of all existing source codes, enhancements, upgrades,
documentation, flowcharts, design documents, and record and file
layouts, in
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any medium, relating to the Software and any all right, title, and
interest therein, proprietary and otherwise, and includes without
limitation, the copyright, trade secret right, patent tight, and
rights to publish, reproduce, transmit, adapt, prepare derivative
works, sell, or otherwise make use of the Software throughout the
world in any form or medium and in my language, and to license or
otherwise transfer to others the rights commensurate therewith.
This transfer is exclusive to Buyer and Seller shall not retain any
copies of the Software in any form without the express, written
consent of Buyer.
ARTICLE 2: CONSIDERATION
2.1 Buyer shall pay to Seller upon receipt of the Property the
sum of Ten Thousand Dollars and Ten Thousand Shares of Buyer's
common stock. The cash shall be payable Five Thousand Dollars
($5,000) upon delivery of the Property to Buyer and Five Thousand
Dollars ($5.000) within ninety (90) days of the date hereof. The
cash payable hereunder shall be paid fifty percent (50%) to Xxxxxx
Xxxxxx and fifty percent (50%) to Xxxx Xxxxxx.
2.2 Immediately upon execution of this Agreement Seller shall
deliver the Property to Buyer in a manner and on a medium
acceptable to Buyer.
ARTICLE 3: STOCK TRANSFERRED BY BUYER
3.1 Buyer agrees to transfer to seller upon delivery of the
Property to Buyer the shares of the common stock of Buyer to be
issued hereunder in the amount of five thousand (5,000) shares to
Xxxxxx Xxxxxx and five thousand (5,000) shares to Xxxx Xxxxxx.
3.2 The transfer of Buyer's shares shall be effected by the
delivery to Seller of certificates representing the transferred
shares, duly issued by Buyer and entered into the corporate
records.
3.3 Seller acknowledges, and irrespective of any other term or
provision herein, that the Buyer stock exchanged hereunder
presently is or may in the future be restricted stock subject to
Securities and Exchange Commission "Rule 144". No warranties or
representations by Buyer are made nor shall be
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implied herein that such restrictions will be removed except by
compliance with the applicable requirements of Rule 144 or the
Securities Act of 1933
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents and warrants to Buyer as follows, which
representations and warranties shall be deemed made by Seller upon
transfer of title to the Property:
4.1 Seller has an unrestricted exclusive right to use, execute
and reproduce the original Property enhancements and upgrades
thereof, and to sell and distribute the Property without obligation
or restriction of any kind and that there is no other ownership or
proprietary interest in the Property other than those transferred
hereunder.
4.2 Seller is the sole and exclusive owner of and has good and
marketable title to the Property and is duly authorized and empowered
to sell all rights to the Property without the consent of any other
person or entity; and there are no debts, liens, encumbrances, or
obligations against the Property and Seller has paid all taxes, charges,
debts, and other Assessments as may be attributed thereto and that all
debts and obligations relating thereto are and will remain fully
satisfied through transfer of title. The Property is not subject to any
permits, licenses, or grants of use or any right whatsoever and
Seller has not sold or granted any interest, whether in total or in
any portion of the Property to any person or entity and the use of
the Property does not conflict or infringe in any way with the
trade-marks, trade-names, copyright, or other proprietary rights,
nondisclosure or other rights or interest of any other person or
entity.
4.3 The Property and its use by Seller and its customers has
been and presently is in compliance with all applicable laws, rules
and regulations.
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4.4 Seller agrees, on behalf of itself, its affiliated
companies, officers, directors, consultants or employees,
successors and assigns, not to develop a Property competitive to
the Property, either for itself or any third party, except and
unless for the benefit of the Buyer or its successors or assigns.
4.5 Seller is not aware of any claims that have been, or
potentially could be, made pursuant to indemnification provisions
of Seller herein as of date of this Agreement.
4.6 Seller has full authority to enter into this Agreement
and to carry out Seller's obligation hereunder, and that this
Agreement constitutes a valid and binding obligation of Seller and
performance hereunder will not violate any Articles of
Incorporation, Bylaws, or other agreements or commitments of
Seller,
ARTICLE 5: INDEMNITY
6.1 In addition to any other obligation of indemnity as may be
set forth herein, Seller agrees to indemnify, defend and shall hold
harmless Buyer, its corporate affiliates, officers, directors,
assigns and any employee or agent thereof against all liabilities,
claims, damages, penalties, assessments, costs and attorney's fees
arising from the breach by Seller of any provision of this
Agreement and the conveyance to or use by Buyer of the Property,
including without limitation, the violation of any third party's
trade secrets, proprietary information, trademark, copyright or
patent rights in connection with the Property. Seller may, at its
option, conduct the defense of any such claim or action arising as
described herein and Buyer shall fully cooperate with such defense.
6.2 If a third party claim causes Buyer's quiet enjoyment and
use of the property to be endangered or disrupted, Seller shall use
best efforts to either: (1) replace the Property, without
additional charge, by a compatible, functionally equivalent and
non-infringing Property; (2) modify the Property to avoid thc
infringement; (3) obtain a license or purchase such rights as
necessary for Buyer to continue use of the Property and pay for any
additional fee related therefore; or (4) if none of the foregoing
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alternatives are possible even after Seller's best efforts, Seller
shall return all consideration received hereunder and Buyer shall
be allowed to pursue other damages as appropriate.
6.3 Buyer agrees to indemnify, defend and shall hold
harmless Seller against all liabilities, claims, damages, penalties,
assessments, costs and attorney's fees arising from the use of the
Property by Buyer subsequent to the delivery to and acceptance by
Buyer of the Property, including without limitation, the violation
of my third party's trade secrets, proprietary information,
trademark, copyright, or patent rights in connection with the
Property caused or created by Buyer, but excluding any such claim
arising out of Seller's indemnity obligations herein.
6.4 Upon obtaining knowledge thereof, the indemnifying party
shall promptly notify the indemnified party of any claim which has
given or could give rise to a right of indemnification under this
Agreement. If the right of indemnification relates to a claim
asserted by a third party against Buyer for infringement of any
proprietary interest arising from Seller's use or creation of the
Property prior to delivery of possession thereof to Buyer, Seller
shall have the right to employ counsel, at Seller's expense,
acceptable to Buyer to cooperate in the defense of any such claim.
If Seller does not elect to defend any such infringement claim,
Buyer shall have no obligation to do so and no action or inaction
by Buyer shall be deemed or constitute a waiver of any right or
remedy of Buyer, whether in law or in equity. To the extent Buyer
elects to defend such infringement action after Seller's failure to
do so, Seller shall reimburse Buyer for all costs and attorneys
fees incurred by Buyer and for any sums paid by virtue of any
settlement or satisfaction of judgment,
ARTICLE 7: NON-COMPETITION
Seller, as additional material consideration hereunder, agrees
that, for a period of ten (10) years from the date of this
Agreement, they will not directly or indirectly develop a product
or computer game similar to the Property and Seller will not
participate as a shareholder, partner, employee, consultant,
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or otherwise in any enterprise engaging in activities that would
violate this provision if engaged in by Seller directly. This
covenant shall be applicable to the entire United States of America
and the World on the basis that the Property is distributed and
placed on the "World Wide Web" and that Buyer intends to continue
such use of the Property and to sell the Property and related
products nationally and to the World. The parties, and Specifically
Seller, acknowledges and agrees that the scope of this covenant is
reasonable given the special relationship of the parties and the
nature of the Internet and sale of products thereon. Seller further
acknowledges and confirms that this covenant is a material
inducement to Buyer to enter into this Agreement, is considered
material to Buyer, and is required By Buyer for the purpose of
preserving the business and goodwill of Buyer. The parties agree
that the statement of reasonableness and enforceability of this
provision shall be conclusively binding on any legal tribunal for
all purposes.
ARTICLE 8: GENERAL PROVISIONS
8.1 Notice. Notices to or for the respective parties shall be
given in writing and delivered in person or mailed by certified or
registered mail, addressed to the respective party at the address
as set out below, or at such other address as either party may
elect to provide in advance in writing, to the other party:
Buyer: Seller:
WebQuest International, Inc. Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Vice President Xxxx Xxxxxx
0000 Xxxxxxx 000 00000 XX Xxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
8.2 Further Assurances. At any time, and from time to time,
each party, will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm
or perfect title to any property transfers hereunder or otherwise
to carry out the intent and purposes of this Agreement.
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8.3 Waiver. Any failure on the part of either party hereto to
comply with any of their obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed.
8.4 Brokers. Each of the parties represents to the other
parties that no broker or finder has acted for them in connection
with this Agreement and agrees to indemnify and hold harmless the
other parties against any fee, loss, or expense arising out of
claims by brokers or finders employed or alleged to have been
employed by such party.
8.5 Governing Law. This Plan shall be construed and governed by
the laws of the State of Nevada and jurisdiction shall vest
exclusively in the Ninth Judicial District Court, located in
Xxxxxx, Xxxxxxx County, Nevada. The parties acknowledge and agree
that this Agreement is executed and to be wholly performed in
Xxxxxxx County, State of Nevada.
8.6 Assignment. This Agreement and all of the terms and
conditions hereof shall inure to the benefit of, and be binding
upon, the parties hereto and their heirs, executors,
administrators, successors, and assigns; provided, however, that
assignment by either party of it's rights under this Agreement
without the written consent of the other party shall be null and
void.
8.7 Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing between the parties
hereto and contains all of the covenants and agreements between the
parties with respect to this matter. 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 binding. Any modification of
this Agreement will be effective only if it is in writing, signed
by the party to be charged specifically referencing this Agreement.
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8.8 Interpretation. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid and
effective under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining
provisions of this Agreement. The parties acknowledge and agree that
this Agreement was a product of mutual negotiation between the parties
and no provision or term herein shall be in any manner construed
against either party as the drafter hereof, and that this provision
shall be conclusively binding on any legal tribunal for all
purposes.
8.9 Counterparts, Telefacsimile. This Agreement may be
executed in counterparts, and each counterpart or set thereof shall
be deemed to be a duplicate original, Executed copies of this
Agreement may be delivered by telefacsimile, and delivery of
executed telefacsimile copies to the parties and their counsel
shall be deemed to be a delivery of a duplicate original and
sufficient delivery to result in entry to this Agreement by the
transmitting party; provided, however, that within ten (10) days
thereafter, a signed duplicate original shall he forwarded to the
party to whom a telefacsimile copy was forwarded. IN WITNESS
WHEROF, the parties have executed this Agreement the day and year
first above written.
BUYER: SELLER:
WebQuest International, Inc. Xxxxxx Xxxxxx
BY: XXXX XXXXXXX Xxxx Xxxxxx
Vice President
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EXHIBIT A
Once the contract has been signed by both parties, Xxxx Xxxxxx and
Xxxxxx Xxxxxx will mail a complete volume of information and
property in both print and electronic form to WebQuest. The
material to be turned over upon the sale shall include the
following:
1) All rights end privileges associated with the name SCAVENGERnet.
2) Transfer of ownership of the domain xxxx://xxx.xxxxxxxxxxxx.xxx.
3) Full rights to the name and likeness of "Cassie Clue"
(SCAVENGERnet's Mascot)
4) The web site and all associated graphic design work to date
presented in both print and on diskette.
5) All passwords, email addresses, contact information and
documentation for the current hosting company on which the
Scavengernet website presides.
6) The complete member email list in both print and on diskette.
7) All demographic data and feedback collected via online surveys
to date in both print and on diskette.
g) All past xxxx clues and results in both print and on diskette.
9) All contact information of companies having expressed interest
in sponsoring future hunts, as well as those companies previously
approached regarding sponsorship opportunities.
10) A full report outlining all future xxxx and promotional ideas.
