This agreement is confidential
AGREEMENT
Cover Sheet
Parties: Address for notices:
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YZ Business Consulting ("PROVIDER"), YZ Business Consulting
A New Jersey corporation having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone/Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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Royal Capital Management, Inc. ("Licensee") ▇▇▇▇ ▇▇▇▇▇▇▇▇
a New Jersey corporation having an office at: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Telephone/Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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Effective Date: July 26 2002
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Scheduled Termination Date: pursuant to Section 4 herein
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This agreement (the "Agreement") is by and between the parties identified above
(collectively, the "Parties") and consists of this Cover Sheet, the attached
General Terms and Conditions and any schedules referred to therein. This
Agreement shall become effective when signed by both Parties on the date
indicated above (the "Effective Date"). The schedules shall be construed to be
fully consistent with all of the provisions of the General Terms and Conditions
and, in the case of any conflict, the General Terms and Conditions shall prevail
unless a schedule separately executed by both Parties expressly amends
particular provisions of the General Terms and Conditions, in which case the
amendments of such schedule shall prevail over such particular provisions of the
General Terms and Conditions.
This agreement shall be executed in two counterparts, each of which shall be
deemed an original but both of which shall constitute one and the same
instrument. Each page of this agreement shall be initialed and signed by the
Parties.
PROVIDER LICENSEE:
By: By:
(Authorized Signature) (Authorized Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(Typed or Printed Name) (Typed or Printed Name)
Title: President Title: President
Date: July Date: July 26, 2002
This agreement is confidential
General Terms and Conditions
1. DEFINITIONS
For the purposes of this Agreement, certain terms have been defined below and
elsewhere in this Agreement to encompass meanings that may differ from, or be in
addition to, the normal connotation of the defined word.
1.1 "Royalties" shall have the meaning set forth in Schedule A.
1.2 "Term" shall mean the period beginning on the Effective Date and ending as
indicated in Section 4 herein.
1.3 "Subsidiary" of a Party means a corporation or an affiliate controlled by
the Party. For the purposes of this paragraph, to "control" a corporation or an
affiliate means to own or control, either directly or indirectly, 51% or more of
the shares or other securities entitled to vote for election of directors of the
corporation or the affiliate. Notwithstanding the foregoing, any corporation or
affiliate shall be deemed to be a Subsidiary only so long as such ownership or
control exists.
1.4 "Technology" means all technical know-how and intellectual property
developed by the PROVIDER and/or shareholder(s) of the PROVIDER, which relates
to improved perception and memorization of information using electronic visual
devices, such a personal computer, analog and/or digital display devices,
Internet-based systems, and others. Certain aspects of the "Technology" were
demonstrated by representatives of the PROVIDER to the Licensee, which
acknowledgement is hereby acknowledged by the Licensee by signing the Agreement.
At a minimum, a portion of the "Technology" is described in United States
provisional application filed by the undersigned representative of the PROVIDER,
a copy of which is attached herewith.
1.5 "Product" means any product or deliverable content, which may be sold or
access to which produce revenue and which was developed on the basis of the
Technology.
1.6 "Total revenues" means the sum of funds obtained by the Licensee in a given
time period from sales of the product or products utilizing the Technology or
based on the Technology in any way. Total Revenues include funds obtained by the
Licensee directly and the total amount of funds obtained by any Subsidiaries of
the Licensee by selling the product(s) through sub-licensing arrangements with
the Licensee. This Agreement regulates the sub-licensing activities of the
Licensee as described herein below.
2. LICENSE
2.1 Agreement In General. The Parties wish to enter into this Agreement to
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further develop and utilize the Technology. In general terms, the PROVIDER shall
provide the Licensee with a) the technical know-how and b) the intellectual
property related to the Technology, and the Licensee shall commercially develop
the Technology, market the product(s) based on the Technology, pay Royalties to
the PROVIDER and provide legal protection for the technical know-how and the
intellectual property of the PROVIDER, the Technology and Products and pay all
related costs.
2.2 Obligations of the Parties.
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2.2.1 In accordance with and subject to the terms and provisions described
herein, the Provider grants to the Licensee
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a) a right to the know-how of the PROVIDER with respect to the Technology,
including a right to utilize the Technology in order to develop and sell
product(s) based on the Technology and to market such product(s), including the
right to improve and upgrade the Technology, extend its application to other
technological areas, carry out activities in order to utilize the Technology for
the benefit of both Parties, e.g. establishing any educational systems, opening
any teaching centers, schools, training courses, individual classes and the
like; and
b) a right to obtain from the PROVIDER a license to patents related to the
Technology, which shall be executed and obtained by the Licensee in the name of
the PROVIDER in the patent institutions of the United States or in foreign
countries during the Term of this Agreement.
2.2.2. In accordance with and subject to the terms and provisions described
herein, the Licensee agrees to pay the Royalties as set forth in Schedule A and
to undertake other Obligations as described herein below.
2.3 Obligations of the Licensee. Subject to the terms and provisions of this
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Agreement, the obligations of the Licensee shall be as follows:
2.3.1 The Licensee shall pay Royalties to the PROVIDER as set forth in
Schedule A.
2.3.2 Subject to an additional time schedule to be agreed upon by the
Parties after a necessary financing has been secured and obtained, the Licensee
shall, in cooperation with the PROVIDER, develop and finalize trademark(s),
trade name, and trade dress related to the Technology, including, at a minimum,
a logo, the appearance of the implementing software, and the trading name for
the products and/or services utilizing the Technology.
2.3.3 Subject to an additional time schedule to be agreed upon by the
Parties after a necessary financing has been secured and obtained, the Licensee
shall commence the utilization of the Technology in the production of
a) a product that utilizes the Technology in teaching English as a
second language ("ESL Program") and for this purpose set up infrastructure and
enter into necessary agreements with necessary contractors.
2.3.4 Subject to an additional time schedule to be agreed upon by the
Parties after a necessary financing has been secured and obtained, If the
PROVIDER deems necessary, the Licensee shall upgrade the demo version of the
computer software product if necessary.
2.3.5 Subject to an additional time schedule to be agreed upon by the
Parties after a necessary financing has been secured and obtained, the Licensee
shall commence production and commercial sales of the ESL Program products as
described above.
2.3.6 Subject to an additional time schedule to be agreed upon by the
Parties after a necessary financing has been secured and obtained, the Licensee
shall have on hand, in a readily marketable form, at least 1,000 units of ESL
Program. The Licensee shall furnish to the PROVIDER the evidence of a) the
existence of the quantity of the readily marketable products; and b) the
existence of readily available distribution channels for the products.
2.3.7 The Licensee shall carry out, with all reasonable efforts and
dispatch, the business development and marketing research related to the
Technology to expand the product scope and the geographic area of the
application of the Technology.
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2.3.8 The Licensee shall carry out all necessary research and development,
and practical work to create, develop, produce and market any other
Technology-based products in cooperation with the PROVIDER..
2.3.9 The Licensee shall provide all necessary technical support for all
marketed products subject to applicable rules and standards.
2.3.10 The Licensee shall bear the cost of preparation and protection of
any patents of the PROVIDER directed to the Technology not to exceed $50,000US
or as mutually agreed by both parties. The Licensee shall keep confidential all
information, which may be available in the provisional patent application and/or
any non-published applications claiming priority therefrom, shall not disclose
any such information to third parties, and shall not provide third parties with
copies thereof without written consent of the PROVIDER. The Licensee shall
provide legal protection for the technical know-how and the intellectual
property of the PROVIDER, the Technology and Products and pay all related costs
not to exceed $ 50,000 US or as mutually agreed by both parties .
2.3.11 The Licensee shall provide to the PROVIDER, if requested, with all
information related to the utilization and marketing of the Technology.
2.3.12 In any year expenditures of Licensee in connection with the activity
covered by this agreement should not exceed $250,000 US from the capital raised
or as mutually agreed by both parties.
2.4 Right of the LICENSEE to use the Technology. Subject to the termination
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provisions of this Agreement, the PROVIDER grants rights to the Technology only
to the Licensee to the exclusion of any third parties in the exchange for
Royalty payments set forth in Schedule A.
2.5 Obligations of the PROVIDER. In addition to grant of rights and subject to
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the terms and provisions of this Agreement, the obligation of the PROVIDER shall
be as follows:
2.5.1 The PROVIDER shall provide technical support, supervision, and
professional advice to the Licensee in the utilization of the Technology. The
PROVIDER shall make all reasonable efforts in this regard.
2.5.2 The PROVIDER shall provide the Licensee with the necessary
information to enable the Licensee to exercise the rights granted to the
Licensee.
2.5.3 The PROVIDER shall communicate to the Licensee all facts known to the
PROVIDER, which relate to the Technology. The PROVIDER shall make all reasonable
efforts to aid the Licensee in achieving commercial success of the product(s)
utilizing the Technology.
2.5.4 The PROVIDER shall make all reasonable efforts to assist the Licensee
in obtaining patent(s) in the name of the PROVIDER covering the Technology
and/or its applications. The issuance of such patent(s) to the PROVIDER or a
failure of such patent(s) to issue shall have no effect on further obligation of
the Parties under this Agreement.
2.6 Have Made Rights. Licensee may have Products made for it by a third party
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for the sole purpose of Licensee exercising the license set forth in Section
2.1.1 provided that: (a) such third party provides the Products made by it
solely to Licensee and no other person or entity, (b) this "have made" right is
not exercised in a manner such that it is a sham for the purpose of effectively
sublicensing the Licensed Products to such third party.
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2.7 Subsidiaries. Licensee is further granted the right to grant to any of its
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Subsidiaries a sublicense within the scope of the license herein granted to
Licensee, provided that (a) Licensee first obtains PROVIDER's written consent
before granting a sublicense to an entity that becomes a Subsidiary after the
Effective Date, and (b) both Licensee and its sublicensees shall be responsible
for the actions or omissions of the sublicensees and both shall be jointly and
severally liable to PROVIDER if any such actions or omissions breach any
provision of this Agreement. Any such sublicense granted to a Subsidiary shall
immediately terminate in the event that the sublicensee ceases to be a
Subsidiary. Any sublicense permitted under this Section may be made effective
retroactively, but not before the Effective Date nor before the sublicensee
becoming a Subsidiary of Licensee. The revenues which Subsidiaries derive from
Products shall be counted toward the Total Revenues as described herein.
Licensee is further obligated to report the activities of the Subsidiaries with
respect to the Technology to the PROVIDER.
3. PAYMENTS
3.1 Payments and Royalties. In consideration of the license and rights granted
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in this Agreement, Licensee shall pay to PROVIDER the Royalties as provided in
Schedule A.
3.2 Accrual. Unless otherwise provided in Schedule A, Actual Expenses shall
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accrue on any activities related to this agreement and Actual Royalties shall
accrue on the first use, distribution, performance or display of the Products by
Licensee, Licensee's Subsidiaries or its and their direct or indirect customers
that result in revenues received. The obligation to pay accrued Royalties shall
survive termination of this Agreement. When an entity ceases to be a Subsidiary
of Licensee, Royalties which have accrued with respect to such entity, but which
have not been paid, shall become payable along with Licensee's next scheduled
Royalty payment. Notwithstanding any other provision hereunder, Actual Royalties
shall accrue and be payable only to the extent that enforcement of Licensee's
obligation to pay such Actual Royalty would not be prohibited by applicable law
and in no circumstances these royalty payments will create loss for the activity
covered by this agreement.
3.3 Quarterly Royalty Payments and Reports. Within thirty (30) days after the
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end of each calendar quarter (i.e., within 30 days after March 31st, June 30th,
September 30th and December 31st) during the Term, Licensee shall pay PROVIDER
the Royalties based on the sales revenues received of the Licensee in the
quarter. The first and all consecutive payments shall be paid at the end of each
calendar quarter, in which Actual Royalties have been accrued, and the last
shall be paid at the end of the quarter during which the Term ends provided this
Agreement is ended. Simultaneously with such payment, Licensee shall provide
PROVIDER with a report certified by a duly authorized officer of Licensee (the
"Royalty Report") which shall identify this Agreement and include the
information set forth in Schedule A as well as any other information PROVIDER
may reasonably require from time to time. Such information shall be shown
separately for Licensee and each Subsidiary which accrued Actual Royalties
during the corresponding calendar quarter. If no Actual Royalties were accrued
during a calendar quarter, the Royalty Report shall state that fact. The parties
shall verify and, if necessary, adjust the above financial settlement upon
completion of each six-month period of operation in accordance with the
Licensee's relevant auditor reports and based on invoices of the PROVIDER. The
Licensee shall pay the amounts against such invoices of the PROVIDER not later
than within five (5) banking days from the date of receipt of the same by the
Licensee. The principle and method of payments described herein above shall be
applicable to all products specified herein, as well as to any and all other
products sold by the Licensee on the basis of the Technology, whether or not
specifically mentioned herein, including products that may be developed by the
Licensee in the future.
3.4 Method of Payment and Reporting. All payments required hereunder shall be
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paid to PROVIDER by electronic bank transfer to the following account: Bank:
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CHASE MANHATTAN BANK, ▇ ▇▇▇▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Bank Acct Name: Y.Z.
BUSINESS CONSULTING INC.; Bank Acct Number: ▇▇▇-▇▇▇▇▇▇▇-▇▇; ABA: ▇▇▇-▇▇▇-▇▇▇;
SWIFT: ▇▇▇▇▇▇▇▇. Royalty Reports shall be sent to the address indicated above.
PROVIDER may change the foregoing payment account and address information upon
written notice to Licensee.
3.5 Overdue Payments. Overdue payments hereunder shall be subject to a late
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payment charge calculated at an annual rate of three percent (3%) over the U.S.
prime rate or successive U.S. prime rates (as posted in the Wall Street Journal)
during delinquency. If the amount of such charge exceeds the maximum permitted
by law, such charge shall be reduced to such maximum.
3.6 Overpayment. PROVIDER will credit to Licensee any overpayment of royalties
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made in error if such error is claimed by the Licensee, identified and agreed
upon by the Parties in writing.
3.7 Taxes. Licensee shall bear all taxes, duties, levies and other similar
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charges (and any related interest and penalties), however designated
(hereinafter, "governmental charges"), imposed as a result of the existence or
operation of this Agreement, including any tax which Licensee is required to
withhold or deduct from payments to PROVIDER, except (a) any tax imposed upon
PROVIDER in a jurisdiction outside the United States if and only to the extent
that such tax is allowable as a credit against the United States income taxes of
PROVIDER, and (b) any net income tax imposed upon PROVIDER by the United States
or any governmental entity within the United States proper (the fifty (50)
states and the District of Columbia). In order for the exception contained in
(a) to apply, Licensee must reduce such tax to the extent possible giving effect
to the applicable Income Tax Convention between the United States and Licensee's
country of incorporation, and furnish PROVIDER with such evidence as may be
required by United States taxing authorities to establish that such tax has been
paid so that PROVIDER may claim the credit. If Licensee is required to bear any
governmental charges pursuant to this paragraph, then Licensee shall pay any
additional taxes, charges and amounts as are necessary to ensure that the net
amounts received by PROVIDER after all such governmental charges are made are
equal to the amounts which PROVIDER is otherwise entitled under this Agreement
as if such governmental charges did not exist.
3.8 Other Costs. Other than those payments expressly set forth in this
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Agreement, each Party will be responsible for the costs it incurs in carrying
out its obligations under this Agreement.
3.9 Record Keeping. During the Term and for a period of six (6) years
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thereafter, Licensee shall keep complete, full, clear and accurate books and
records of all information which may be required by PROVIDER in order to confirm
the accuracy of Licensee's Royalty Reports, payments and other obligations
hereunder. PROVIDER shall have the right to have a professionally registered
accountant who shall not be paid on a contingency basis inspect and copy such
books and records of Licensee to the extent necessary for such purpose, provided
that such activity shall be conducted during Licensee's regular business hours
upon at least five (5) days prior notice and, provided further that, Licensee
may not be audited more than once in any calendar year. Such accountant shall
not reveal any information to PROVIDER or any third party other than what is
required to be reported under this Agreement, unless the accountant is ordered
to disclose additional information by a court of competent jurisdiction. The
cost of the inspection shall be paid by PROVIDER unless the inspection reveals
that Licensee underpaid or underreported the total amount owed by 5% or more, in
which case Licensee shall pay up to $5,000 of the reasonable costs of the
inspection and related collection and in which case Licensee may thereafter be
audited by PROVIDER once each royalty reporting period.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall be effective with no time limit and shall
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terminated either by a mutual consent of the Parties or pursuant to the terms
and provisions of this Section 4.
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4.2. Early Termination - Either Party. Either Party may terminate this
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Agreement:
4.2.1 upon thirty (30) days prior written notice, if the other Party has
breached its obligations under this Agreement and such breach remains uncured
during such thirty (30) day period;
4.2.2 in accordance with any terms of this Agreement which expressly
provide for termination; or
4.2.3 immediately if the other Party has failed to fulfill an obligation
required by this Agreement and such failure has or would materially prejudice
the Party regardless of whether such failure is cured,
4.2.4 immediately upon the other Party, or a third party with respect to
the other Party, filing a petition requesting liquidation, dissolution,
reorganization, suspension, rearrangement or re-adjustment, in any form, of the
other Party's debts under the laws of the United States, or any other bankruptcy
or insolvency law; the making by the other Party of any assignment for the
benefit of its creditors; or the admission by the other Party in writing of its
inability to pay its debts as they mature.
4.3. Early Termination - PROVIDER. PROVIDER may terminate this Agreement or
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pursuant to the terms and provisions above or if (a) Licensee shall be in
default of payment of Royalties or any other payment due under this Agreement or
Royalty Report obligations hereunder three or more times in any two year period,
regardless of whether or not any such defaults are ultimately cured or (b)
efforts of Licensee to become a public company within thirty six (36) months
from the date of signing of this Agreement have failed or (c) after becoming a
public company Licensee is unsuccessful in raising required capital within a
year of becoming public.
4.4. Effect of Termination. Upon termination of this Agreement:
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4.4.1 all payments and reports required under this Agreement, including all
Royalties accrued as of the date of early termination, shall be immediately due
and payable to PROVIDER; and
4.4.2 all rights and obligations of the Parties, including the license
granted to Licensee, shall terminate except that the rights and obligations of
the Parties under this Agreement which expressly or by their nature would
continue beyond the termination of this Agreement shall remain in effect and
survive termination of this Agreement; and
4.4.3 notwithstanding such specific termination rights, each Party reserves
all of its other legal rights and equitable remedies.
4.5. End Users. An end user may continue using a Product beyond the termination
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of this Agreement if (a) the end user was properly authorized to use the Product
before the date of termination or notice of termination, whichever is earlier
(the "inventory cutoff date"), (b) the continued use would have been permitted
by this Agreement if this Agreement had not terminated, and (c) the continued
use does not breach the end user's agreement as such agreement existed as of the
inventory cutoff date.
5. GENERAL TERMS
5.1. Relationship of the Parties. In performing this Agreement, each of the
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Parties will operate as, and have the status of, an independent contractor.
Except as may be expressly set forth in this Agreement, neither Party will have
the right or authority to assume or create any obligations or to make any
representations, warranties or commitments on behalf of the other Party, whether
express or implied, or to bind the other Party in any respect whatsoever.
Nothing in this Agreement shall be construed as forming any partnership, joint
venture, agency, employment, franchise, distributorship, dealership or other
similar or special relationship between the Parties.
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5.2. Rules of Construction. As used in this Agreement, (a) the words "herein,"
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"hereunder" and other words of similar import refer to this Agreement as a
whole, including all exhibits and schedules as the same may be amended or
supplemented from time to time, and not to any subdivision of this Agreement;
(b) the word "including" or any variation thereof means "including, without
limitation" and shall not be construed to limit any general statement that it
follows to the specific or similar items or matters immediately following it;
(c) descriptive headings and titles used in this Agreement are inserted for
convenience of reference only and do not constitute a part of and shall not be
utilized in interpreting this Agreement; and (d) explicit references to a
particular section hereof shall be deemed to include a reference to the
subsections, if any, associated with the section. This Agreement shall be fairly
interpreted in accordance with its terms and without any presumption in favor of
or against either Party regardless of the drafter.
5.3. Notice. Unless otherwise provided in this Agreement, all notices, consents,
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approvals, waivers and the like made hereunder shall be in written English to
the addresses set forth on the Cover Sheet, shall reference this Agreement and
shall be sent by any of the following methods: (a) certified mail,
postage-prepaid, return-receipt requested, (b) a delivery service which requires
proof of delivery signed by the recipient or (c) properly-transmitted facsimile
followed by written confirmation in accordance with methods (a), (b) or
first-class U.S. mail. The date of notice shall be deemed to be the date it was
received (in the case of method (c) above, the date of notice shall be deemed to
be the date the facsimile copy is received). A Party may change its address for
notice by written notice in accordance with this paragraph.
5.4. Publicity. No Party shall make any public disclosures and/or disclosures to
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any third party, including the public inconsistent with the provisions of this
Agreement. Either Party may require the other Party to promptly supply a copy of
a public disclosure made by the other Party related to this Agreement.
5.5. Applicable Law and Venue. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New Jersey without regard to its
conflicts of law rules.
5.6. Force Majeure. Neither Party shall be held responsible for any delay or
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failure in performance of any part of this Agreement to the extent such delay or
failure is caused by fire, flood, explosion, war, strike, embargo, government
requirement, civil or military authority, industry-wide shortage of goods or
labor, act of God, or other similar causes beyond its reasonable control and
without the fault or negligence of the delayed or nonperforming Party or its
subcontractors ("force majeure events"). If any force majeure event occurs, the
Party unable to perform shall give immediate notice to the other Party, stating
the nature of the event, the anticipated length of the event and any action
being taken to avoid or minimize its effect. The Party affected by the other's
inability to perform may elect to: (a) suspend this Agreement for the duration
of the force majeure event or (b) terminate this Agreement when the delay or
nonperformance continues for a period of at least thirty (30) days. Under no
circumstances shall a force majeure event excuse the delay of payments due
hereunder.
5.7. Assertion of Unenforceability. If any provision of this Agreement is deemed
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illegal or unenforceable, the Parties agree that such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect. Specifically, if any one
of the portions of the grant by the PROVIDER under Subsections 2.2.1 a) and
2.2.1 b) is not effective or not enforceable for any reason, the remaining
provisions of this Agreement shall remain in full force and effect.
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5.8. Assignment. The Parties hereto have entered this Agreement in contemplation
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of personal performance by Licensee and intend that the rights granted to
Licensee hereunder not extend to other entities without PROVIDER's consent.
Accordingly, neither this Agreement nor any of Licensee's rights or obligations
hereunder shall be assigned or transferred (in insolvency proceedings, by
mergers, acquisitions or otherwise) by Licensee without such consent. Any
assignment or other transfer which is inconsistent with the foregoing shall be
null and void ab initio. Subject to the exclusivity provisions, set forth
herein, the PROVIDER may assign all or a portion of its rights and obligations
hereunder.
5.9. Change of Control. In the event that Licensee shall be acquired by or its
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management shall otherwise be controlled by an entity that is a material
competitor of PROVIDER, PROVIDER shall have the right to terminate this
Agreement upon ninety (90) days written notice to Licensee.
5.10. Infringement by Others. Licensee shall notify PROVIDER in the event that
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Licensee becomes aware of any unauthorized infringement of any Patents of the
PROVIDER. The PROVIDER shall have the option, but not the obligation, to seek
redress for such infringement at its own expense and shall be entitled to any
recovery therefor. In any action for such infringement, Licensee shall
reasonably cooperate with PROVIDER at PROVIDER's reasonable expense. Licensee
shall have no right, authority or standing to bring any action against any third
party relating to the third party's infringement of the Licensed Software.
5.11. Export. Licensee acknowledges that the Product(s) and technical
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information (including, services and training), if any, provided under this
Agreement are subject to U.S. export laws and regulations and any use or
transfer of such Products and technical information must be authorized under
those regulations. Licensee agrees that it will not use, distribute, transfer or
transmit such software or technical information (even if incorporated into other
products) except in compliance with U.S. export regulations. For the purposes of
this Paragraph, "export' means transferring or releasing to another country or
to a national of another country (wherever that person is located) by any means,
including physical, electronic, or otherwise. The obligations of this paragraph
shall survive the termination of this Agreement.
5.12. Computation of Time. If a time period provided in this Agreement requires
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a certain action be performed within ten (10) or less days, then intervening
Saturdays, Sundays and legal holidays shall not be included in the computation
of time. If a time period requires a certain action be performed within eleven
(11) or more days, then intervening Saturdays, Sundays and legal holidays shall
be included in the computation of time. In the event that a time period expires
on a Saturday, Sunday or legal holiday, the time period shall be deemed to
expire on the next day that is not a Saturday, Sunday or legal holiday. "Legal
holidays" means New Year's Day, Birthday of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., President's
Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day and the Friday thereafter, and Christmas Day.
5.13. Third Party Beneficiaries. This Agreement is not intended to be for the
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benefit of and shall not be enforceable by any third party. Nothing in this
Agreement, express or implied, is intended to or shall confer on any third party
any rights (including third-party beneficiary rights), remedies, obligations or
liabilities under or by reason of this Agreement. This Agreement shall not
provide third parties with any remedy, claim, liability, reimbursement, cause of
action or other right in excess of those existing without reference to the terms
of this Agreement. No third party shall have any right, independent of any right
that exists irrespective of this Agreement, to bring any suit at law or equity
for any matter governed by or subject to the provisions of this Agreement.
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5.14 Entire Agreement; No Modification or Waiver. This Agreement constitutes the
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entire agreement between the Parties concerning its subject matter and
supersedes all prior written or oral negotiations, correspondence,
understandings and agreements between the Parties respecting such subject
matter; provided, however, that all information disclosed prior to the Effective
Date related to this Agreement shall continue to be subject to the Agreement and
the Parties agree that no information shall be disclosed under such agreement
after the Effective Date. Prior unexecuted drafts of this Agreement may not be
used to interpret the intentions of the parties to this Agreement and the fact
that certain provisions may have been added, removed or modified during
negotiations shall have no interpretive significance. No provision of this
Agreement shall be deemed modified by any action or omission or failure to
object to any action that may be inconsistent with the terms of this Agreement.
No waiver of a breach committed by a Party in one instance shall constitute a
waiver or license to commit or continue breaches in other or like instances.
This Agreement shall not be modified or rescinded, except by a writing signed by
both Parties. By way of example only, this Agreement may not be modified by any
statement appearing on any check or similar transfer of money, or by any
provision appearing in any preprinted form of one Party unless expressly
accepted by the other Party in a writing which expressly refers to such
preprinted form and this Agreement.
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SCHEDULE A
PAYMENTS AND REPORTS
1. Actual Royalty.
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Licensee shall commence regular payments to PROVIDER of forty per cent (40%) of
the Total Revenues from the Licensee's sales of any product, services or any
other activities utilizing the ESL Technology, following fulfillment by Provider
of conditions as per Item 1.1 below:
1.1 Provider shall repay the Licensee's initial stage operation costs,
the amount of which shall be a one-time cost for the duration of this Agreement.
This amount shall include expenses for legal protection, advertising and
production. The amount of the one-time cost referred to herein shall not exceed
$150,000US or any other amount mutually agreed by the Parties. Repayment of the
actual expenses referred to herein shall be made from the revenues received by
Licensee from the sales of any product, services or any other activities
utilizing the ESL Technology. Following the repayment of the actual expenses
referred to herein there shall commence regular payments in the amounts
stipulated above in Item 1 of this Schedule A and pursuant to the terms and
conditions of this Agreement.
2. Royalty Report.
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The Licensee shall provide the PROVIDER with a quarterly Royalty Report that
shall include, at a minimum:
- Total revenues of the Licensee for the quarter at issue and from the
date of the signing of this agreement
- the number and identity of products, services and other activities
utilizing the Technology and disposed of in the quarter at issue (even
if such number is zero),
- the Royalties owed for the quarter at issue; and
- the amount of Licensee's payment accompanying the Royalty Report
and/or transferred to the PROVIDER's bank account.
This Schedule A shall be an integral part of the agreement.
PROVIDER LICENSEE:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
(Authorized Signature) (Authorized Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(Typed or Printed Name) (Typed or Printed Name)
Title: President Title: President
Date: July 26, 2002 Date: July 26, 2002
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This agreement is confidential