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OPTION AGREEMENT
AGREEMENT made and entered into this 28th day of June, 2000, by and
between DSI Datotech Systems, Inc., a Vancouver corporation, having its
principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
("Datotech") and NetFace, LLC, a Connecticut corporation, having its principal
offices at ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇--▇▇▇▇ ("NetFace").
W I T N E S S E T H:
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WHEREAS Datotech represents that it is the developer and the owner of
the right title and interest in and to the Technology and Existing Proprietary
Property as hereinafter defined; and
WHEREAS NetFace desires Datotech to disclose the details of the
Technology to NetFace to permit NetFace to evaluate the Technology and to
determine whether NetFace will exercise the Option granted to NetFace hereunder
and enter into an exclusive License Agreement (in the form attached hereto and
made apart hereof as Exhibit A) with Datotech for the Technology, all know- how
related to the Technology and the Existing Proprietary Property;
WHEREAS, Datotech wishes to grant NetFace the sole and exclusive Option
to acquire the exclusive licensing rights for the exploitation of the developed
Technology for Licensed Items within the Territory through the License
Agreement;
NOW THEREFORE, in consideration of the provisions contained herein, and
of the payment of the Option Price, the receipt and sufficiency of which is
hereby acknowledged, the undersigned agree as follows:
ARTICLE 1
Definitions
The following terms used in this Option Agreement shall have the
meanings set forth below:
(a) "Agreement" shall mean this Option Agreement, entered into on the
date first above written.
(b) "Existing Proprietary Property" shall mean all intellectual
property rights in the Technology, including without limitation, (i) any and all
patent applications filed worldwide based upon the Technology, including any and
all continuations, divisions and continuations-in-part thereof, and all patents,
inventor's certificates, utility models and the like issuing therefrom
worldwide, including any and all re-examinations, reissues, renewals and
extensions thereof, (ii) any copyrightable or copyrighted works based upon the
Technology, including computer software and computer programs, (iii) any
confidential or proprietary know-how and information regarding the Technology,
(iv) any trademarks and trade names associated with the Technology, whether or
not
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registered, and (v) all fixed representations, hardware, hard copies,
computer--readable media and other tangible implementation of the Technology
(collectively, the "Proprietary Property"), patent rights, copyrights,
trademarks and trade secret rights. "Existing Proprietary Property" shall also
include patent rights in the Technology that are pending as of the date hereof.
(c) "License Agreement" shall mean the License Agreement attached
hereto and made apart hereof as Exhibit A that may be executed by the parties
hereto upon the exercise by NetFace of the Option granted to NetFace hereunder.
(d) "Licensed Items" shall mean the interfaces for personal computer
games, console games and Internet television, in which the Technology may be
utilized pursuant to the execution by the parties herein of the License
Agreement.
(e) "Option" shall mean the sole and exclusive Option of NetFace to
acquire, for the Option Price, the exclusive licensing rights for the
exploitation of the Technology within the Territory through a license agreement.
(f) "Option Period" shall mean the period commencing on the date hereof
and ending eighteen months from the date when a prototype reasonably acceptable
to NetFace is made available by Datotech to NetFace.
(g) "Option Price" shall mean the amount of $200,000 US Dollars fully
creditable towards any amount which may be owed to Datotech pursuant to the
execution of the License Agreement.
(h) "Prototype" shall mean a device using Datotech Technology that will
demonstrate multi- touch capability as it is applied to playing video games and
operating Internet TV, utilizing a PC system for such a demonstration. Datotech
commits to use its best efforts to make this prototype available at no charge to
NetFace, on a top priority basis, within less than six months from signing and
delivery of this Agreement.
(i) "Technology" shall mean Datotech's proprietary gesture recognition
technology ("GRT") system comprising multiple-touch sensors and related
hardware, gesture recognition algorithms and software, and user interface
designs for mapping gestures to control electronic devices, as well as
alterations, improvements, modifications and derivatives to the Technology
described herein, as well as all related software, documentation and other
materials, embodying GRT theretofore or hereafter created or developed by
Datotech.
(j) "Territory" shall mean al major markets worldwide.
(k) "Third-Party Licenses" shall mean sub-licenses granted by NetFace
to third parties pursuant to the license and rights granted to NetFace by
Datotech in accordance with the License Agreement. "Third-Party Licensees" shall
mean those parties to whom Third-Party Licenses are granted in accordance with
the License Agreement.
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ARTICLE 2
Datotech Obligations
2.1 Research and Development. Datotech shall conduct research and
development of the Technology with the ultimate goal of developing the
Technology and Existing Proprietary Property for the Licensed Items and
otherwise maximize the commercial value of the Technology and Existing
Proprietary Property for the Licensed Items.
2.2 Disclosure of Improvements. From time to time throughout the
duration of this Option, Datotech shall disclose any and all improvements to the
Technology for Licensed Items to NetFace so as to keep NetFace as current as is
practicable regarding the Technology. Datotech shall also disclose any and all
improvements to the Technology for Licensed Items to prospective Third-Party
Licensees as well as participate in meetings and presentations with prospective
Third-Party Licensees to demonstrate the feasibility of integrating the
Technology into the Licensed Items. Datotech shall cooperate with NetFace and
prospective Third-Party Licensees by providing, at no cost, all required
disclosures and assistance in order to demonstrate the feasibility of
integrating the Technology into the Licensed Items, including but not limited
to, hardware and software for demonstrations and simulations. Such disclosures
shall be in a form and manner to be agreed upon by the parties on &case-by-case
basis. Datotech and NetFace shall each bear their own expenses resulting from
such meetings, presentations or any disclosures required pursuant to this
Section 2.2.
2.3 Maintenance of Existing Proprietary Property. During the term of
____________________________________________ this Agreement Datotech shall
utilize its best efforts to maintain all Existing Proprietary Property in valid
force and effect.
ARTICLE 3
NetFace Obligations
3.1 No Obligation to Exercise Option. NetFace has a genuine interest
___________________________ in commercializing the Technology but shall not be
obligated to exercise the Option granted hereunder and may refuse to execute the
License Agreement.
3.2 Confidentiality. NetFace shall have an affirmative duty of
confidentiality regarding all confidential information provided to it by
Datotech hereunder. Such obligation shall survive the termination of this
Agreement and the License Agreement for a period of two (2) years. Moreover,
NetFace acknowledges and agrees that, because of the nature of the property
rights involved under this Agreement and the License Agreement, any breach of
NetFace's obligations under this Section 3.2 shall cause immediate, irreparable
injury to Datotech; therefore, NetFace agrees and acknowledges that Datotech
shall be entitled, in addition to its other rights and remedies at law and in
equity, to seek temporary, preliminary and/or permanent injunctions in the event
an unauthorized disclosure is made or appears to be imminent.
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ARTICLE 4
Grant of option
4.1 NetFace Option. Datotech hereby grants NetFace the sole and exclusive
Option, for the Option Period to acquire the exclusive rights to exploit the
Technology, the Existing Proprietary Property, and any proprietary property
related to the Technology conceived pursuant to this Agreement within the
Territory for Licensed Items through an exclusive license agreement in the form
attached hereto as Exhibit A.
ARTICLE 5
Consideration for Option
5.1 Consideration. In consideration of the option granted to NetFace
hereunder, NetFace shall pay Datotech the amount of $200,000 US Dollars, which
shall be fully creditable towards any amounts due Datotech under the License
Agreement. Said $200,000 US Dollars shall be due and payable as follows:
$100,000 US Dollars upon execution and delivery of this Option Agreement and
$100,000 US Dollars upon delivery of a reasonably acceptable Prototype to
NetFace. Upon the exercise by NetFace of the Option granted hereunder and the
signing of the License Agreement, NetFace shall pay Datotech the amount of $5
Million US Dollars less the above amount of $200,000 US Dollars paid to Datotech
within the terms of this Agreement, in addition to the granting by NetFace to
Datotech a twenty percent (20%) Class B Membership Interest in NetFace; said
20%interest may be diluted only after a) an IPO for Netface has been
successfully concluded or b) a period of three years has elapsed following the
date of execution of the Licensing Agreement, which ever occurs first. Datotech
shall acquire such Membership Interest by signing a copy of the NetFace
Operating Agreement at the time of execution of the Licensing Agreement, thereby
agreeing to be bound by its provisions.
ARTICLE 6
Term and termination
6.1 Term. The term of this Agreement shall be for the duration of the
--- Option Period unless otherwise terminated as provided herein.
6.2 Termination. Any exercise of the right of termination hereunder
shall not impose any liability upon the terminating party nor waive any other
rights that the terminating party has or may have. This Agreement may be
terminated, in whole or in part, at the option of the party having such right as
below provided, by written notice upon the occurrence of any of the following
events:
(a) by either party in the event the other party is
adjudicated bankrupt, or if a receiver or trustee is appointed for such party or
for a substantial portion of its assets, or if any assignment
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is made for the benefit of creditors;
(b) by Datotech in the event NetFace elects not to exercise
the option granted hereunder and not to proceed with negotiations for the
execution of the License Agreement.
ARTICLE 7
Miscellaneous
7.1 No Third Party Beneficiaries. There shall be no third party
____________________________ beneficiaries to this Agreement.
7.2 Assignability. This Agreement shall not be assignable by either
party in whole or in part except upon the written and signed consent of the
other party which shall not be unreasonably withheld.
7.3 Binding Effect. Subject to the restrictions on assignability
contained herein, this Agreement shall be binding upon and inure to the benefit
of the parties and their respective authorized successors and assigns.
7.4 Governing Law. This Agreement shall be governed by and construed
_______________ in accordance with the laws of British Columbia, Canada.
7.5 Notices. All notices, requests or consents provided for or _______
permitted under this Agreement must be in writing and must be given either by 6
mail addressed to the recipient, postage paid, registered or certified mail
return receipt requested, or by delivering the writing to the recipient in
person, by courier or by facsimile transmission. Such a writing so delivered
shall be effective upon receipt.
7.6 Headings. Headings are used in this Agreement for the purpose of
organization only and do not constitute terms of the Agreement. The words
"herein," "hereof "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless otherwise
expressly indicated.
7.7 Severability. If any provision of this Agreement or its application
to any person or circumstance shall be invalid, illegal, or unenforceable to any
extent, the remainder of this Agreement and its application shall not be
affected and shall be enforceable to the fullest extent permitted by law unless
the provision held to be illegal, invalid or unenforceable is so fundamental to
the sense of this Agreement that its illegality, invalidity or unenforceability
would make the enforceability of the remainder unreasonable.
7.8 Entire Agreement. This Agreement sets forth the entire, final and
exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and
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contemporaneous writings and discussions between the parties pertaining hereto.
7.9 No Oral Modifications. This Agreement may be amended or modified
_______________________ only by a written instrument signed by proper and duly
authorized representatives of both parties.
7.10 Counterparts. This Agreement may be executed in any number of
_____________ counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument .
In witness whereof the parties hereto have entered into this Agreement
on the date first above written.
DSI DATOTECH SYSTEMS INC.
By: /s/▇▇▇▇▇▇ ▇. Pardiak
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Name: ▇▇▇▇▇▇ ▇. PARDIAK
Title: CHAIRMAN
NETFACE, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: MANAGING PARTNER
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Exhibit A to Option Agreement
EXCLUSIVE LICENSE AGREEMENT
AGREEMENT made this ____ day of _____, 2001, by and between DSI
Datotech Systems, Inc., a Vancouver corporation, having its principal offices at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter
referred to as the "Licensor" or "Datotech"), and NetFace, LLC, a Connecticut
corporation, having its principal offices at ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇--▇▇▇▇ (hereinafter referred to as the "Licensee" or
"NetFace.")
WITNESSETH :
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WHEREAS, Datotech is the owner of the Technology and Existing
Proprietary Property as hereinafter defined;
WHEREAS, pursuant to the Option Agreement dated as of June 28th, 2000,
by and between Datotech and NetFace (the "Option Agreement"), NetFace was
granted the option to enter into an exclusive license agreement to acquire the
exclusive rights to exploit the Technology and the Existing Proprietary Property
for Licensed Items within the Territory as hereinafter defined; an
WHEREAS, as of the date hereof, NetFace has exercised the option
granted to NetFace pursuant to the Option Agreement and has paid the Option
Price (as defined in the Option Agreement) to Datotech;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration from each to the other, the
receipt and sufficiency of which is hereby acknowledged by both parties, it is
hereby agreed as follows:
ARTICLE 1
Definitions
1.1 Definitions. The following terms used in this License Agreement
____________ (the "Agreement") shall have the meanings set forth below: (a)
"Existing Proprietary Property" shall mean all intellectual property rights in
the Technology, including without limitation, (i) any and all patent
applications filed worldwide based upon the Technology, including any and all
continuations, divisions and continuations-in-part thereof, and all patents,
inventor's certificates, utility models and the like issuing therefrom
worldwide, including any and all re-examinations, reissues, renewals and
extensions thereof, (ii) any copyrightable or copyrighted works based upon the
Technology, including computer software and computer programs, (iii) any
confidential or proprietary know-how and information regarding the Technology,
(iv) any trademarks and trade names associated with the Technology, whether or
not registered, and (v) all fixed representations, hard copies, hardware,
computer-readable media and other tangible implementation of the Technology
(collectively, the
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"Proprietary Property"), patent rights, copyrights, trademarks and trade secret
rights. "Existing Proprietary Property" shall also include patent rights in the
Technology that are pending as of the date hereof.
(b) "License Agreement" shall mean this License Agreement by and
between Datotech, as Licensor, and NetFace, as Licensee.
(c) "Licensed Items" shall mean the interface for personal computer
games, console games and Internet Television, in which the technology might be
utilized pursuant to the execution by the parties herein of this License
Agreement.
(d) "Option Agreement" has the meaning set forth in the second recital
hereof.
(e) "purchase Price" shall mean $5 Million US dollars payable by
NetFace to Datotech upon the signing of this Agreement, less the above amount of
$200,000 US Dollars paid to Datotech within the terms of the Option Agreement,
in addition to the granting by NetFace to Datotech a twenty percent (20%) Class
B Membership Interest in NetFace; said 20%interest may be diluted only after a)
an IPO for Netface has been successfully concluded or b) a period of three years
has elapsed following the date of execution of the Licensing Agreement, which
ever occurs first. Datotech shall acquire such Membership Interest by signing a
copy of the NetFace Operating Agreement at the time of execution of the
Licensing Agreement, thereby agreeing to be bound by its provisions.
(f) "Technology" shall mean Datotech's proprietary gesture recognition
technology ("GRT") system comprising multiple-touch sensors and related
hardware, gesture recognition algorithms and software, and user interface
designs for mapping gestures to control electronic devices, as well as
alterations, improvements, modifications and derivatives to the Technology
described herein as well as all related software, documentation and other
materials, embodying GRT heretofore or hereafter created or developed by
Datotech.
(g) "Territory" shall mean all major markets worldwide. (h)
"Third-Party Licenses" shall mean sub--licenses granted by NetFace to third
parties pursuant to the licenses and rights granted to NetFace by Datotech in
accordance with this Agreement. "Third--Party Licensees" shall mean those
parties to whom Third--Party Licensees are granted pursuant hereto.
ARTICLE 2
License Grant
2.1 License to Exercise Rights. In consideration of the payment to
__________________________ Datotech of the Purchase Price, Datotech hereby
grants to NetFace the perpetual, royalty-free, sole and exclusive divisible and
assignable license to commercially exploit the Technology and the rights
constituting the Existing Proprietary Property for the Licensed Items subject to
all of the terms, conditions and restrictions contained in this Agreement. The
rights granted hereunder include,
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without limitation, the marketing, use, sale and distribution of the Technology
and the rights constituting the Existing proprietary Property for Licensed
Items.
2.2 Authority to Sublicense. Subject to all of the terms, conditions
and restrictions contained herein, Datotech hereby grants NetFace the authority
to sublicense the exercise of the rights specified in Section 2.1 above.
Datotech will play an active role in all negotiations for sublicensing
agreements.
2.3. Reservations. Datotech retains all rights except those granted
______________ above in sections 2.1 and 2.2. Without limiting the generality of
the foregoing sentence, Datotech retains title to the Technology and the
Existing Proprietary Property.
ARTICLE 3
Improvements
3.1 Datotech Improvements. NetFace acknowledges and agrees that
Datotech shall retain exclusive ownership of any and all improvements to the
Technology during the term of this Agreement as well as after this Agreement is
terminated regardless of the cause or method of termination.
3.2 NetFace Improvements. Datotech acknowledges and agrees that NetFace
shall retain ownership of any and all improvements made by Netface. Datotech
also acknowledges and agrees that NetFace shall retain exclusive ownership of
such improvements after the termination of this Agreement regardless of the
cause or method of termination.
ARTICLE 4
NetFace Rights and Obligations
4.1 Confidentiality of Disclosures to Third Parties. NetFace may
disclose any portion of the Technology, the Existing Proprietary Property, and
the improvements to a third party only pursuant to a written agreement between
NetFace and any third-party, approved by Datotech, obligating such third party
to secrecy regarding the disclosure. NetFace acknowledges and agrees that,
because of the nature of the property rights involved in this Agreement, any
breach of NetFace's obligations under this Section 4.1 shall cause immediate,
irreparable injury to Datotech; therefore, NetFace agrees and acknowledges that
Datotech shall be entitled, in addition to its other rights and remedies at law
and in equity, to seek temporary, preliminary and/or permanent injunctions in
the event an unauthorized disclosure is made or appears to be imminent.
NetFace's duty of confidentiality shall survive the termination of this
Agreement regardless of the cause or method of termination.
4.2 Disclosure of Improvements. From time to time, throughout the
duration of this Agreement, Datotech shall be affirmatively obligated to
disclose the nature of any and all
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improvements to the Technology for Licensed Items to NetFace so as to keep
NetFace as current as is practicable regarding the Technology. Datotech shall
also disclose any and all improvements to the Technology for Licensed Items to
prospective Third-Party Licensees as well as participate in meetings and
presentations with prospective Third-Party Licensees to assist in the
integration of the Technology into the Licensed Items. Datotech shall cooperate
with NetFace and prospective Third--Party Licensees by providing, at no cost,
all required disclosures and assistance in order to integrate the Technology
into the Licensed Items, including but not limited to, hardware and software for
demonstrations and simulations. The form of such disclosures shall be decided by
mutual agreement between the parties on a case--by-case basis. Datotech and
NetFace shall each bear their own expenses resulting from such meetings,
presentations or any disclosures required pursuant to this Section 4.2. The
costs of any subsequent development by Datotech at NetFace request of any
hardware and software for a specific application shall be borne by NetFace.
4.3 Reporting. NetFace shall provide to Datotech written reports on an
annual basis, no later than March lst of the subsequent year. Such reports shall
detail NetFace's exploitation, licensing and sublicensing activities and shall
include a report of all related revenues received and expenses incurred for the
same quarter. Such reports shall also (a) detail NetFace's intellectual property
protection activities and expenses under Section 6.1 hereof for the immediately
preceding quarter; (b) include a status report on the condition of all worldwide
intellectual property rights related to the Technology; and (c) include a report
of all strategy and planning for intellectual property protection activities for
the upcoming quarter.
ARTICLE 5
Datotech Rights and Obligations
5.1 Rights to Licensed Items Technology Datotech represents, warrants
and covenants that Datotech is the owner of the Existing proprietary Property
and has the exclusive right and license for the use of the Technology together
with the right to sub-license to others, manufacture, distribute and sell the
Technology in connection with the Licensed Items. Datotech shall provide all
disclosures and assistance to NetFace and Third--Party Licensees, at no cost, in
order to integrate the Technology into the licensed Items.
5.2 Rights of first refusal for other items and/or technologies.
Datotech hereby grants to NetFace upon the signing of this Licensing Agreement,
a sixty (60) day right of first refusal for the licensing of any item and/or
technology not included in the present agreement and that Datotech intends to
license to a third party, with the exception of "banking and 4 financial
transactions" . If NetFace does not exercise its right of first refusal within
sixty (60) days of written notice to Datotech of the terms on which it proposes
to license such item and/or technology to a third party, and if Datotech then
licenses such item and/or technology to a third party on the terms offered to
NetFace within six (6) months of the expiration of NetFace's right of first
refusal, then NetFace shall have no right to this item and/or technology and/or
any related technical information, know how, trade
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secrets, proprietary business information, engineering information, invention,
results of experiments, testing and/or prototypes.
ARTICLE 6
Protection of Intellectual Property Rights
6.1 Authorization to NetFace to File for Intellectual Property
Protection In the Territory. Subject to the provisions of Section 2.3, Article
4, Section 6.4, Section 7.1 hereof and all of the other terms and conditions
contained herein, NetFace shall have the authority but not the obligation, with
the consent of Datotech, to take actions in the Territory on behalf of Datotech
such as filing patent applications and seeking registrations of copyrights for
the purpose of securing and protecting intellectual property rights for Datotech
in the Technology and the improvements thereto. The authority granted in this
Section 6.1 may not be assigned, delegated or sublicensed. NetFace shall bear
the expense of all of its activities under this Section 6.1 including the
payment of attorney fees, patent issuance and maintenance fees, copyright and
trademark registration fees and other similar fees and expenses where
applicable.
6.2 Actions Not Taken by NetFace. In the event Datotech, in its sole
discretion, deems it necessary or beneficial to take a specific action that
NetFace has not taken somewhere in the Territory to protect or maintain any or
all of the intellectual property rights discussed in Section 6.1 hereof, it may
notify NetFace of its intention in writing. Upon receipt of such notice, NetFace
shall respond to Datotech within fifteen (15) calendar days indicating whether
NetFace chooses to take the action requested. If NetFace fails to respond within
such time period, or if NetFace responds indicating that it chooses not to
undertake the requested action, then in that event Datotech may take the action
independently, bearing the cost of the action. In such case, the intellectual
property right or rights resulting from or saved by Datotech's action, if any,
shall automatically cease to be within the scope of the license rights granted
to NetFace in Sections 2.1 and 2~2 hereof.
6.3 Assistance and cooperation in Protecting Intellectual Property.
Both parties, including their employees and affiliates, shall be obligated to
assist and cooperate with each other in securing the legal protection of any and
all intellectual property rights under Sections 6.1 and 6.2 above.
6.4 Acts or Omissions Harmful to Intellectual Property. NetFace shall
___________________________________________________ take no action, nor shall it
omit to take any action, if the effect of such act or omission would be to harm
any or all of Datotech's then-existing intellectual property rights.
ARTICLE 7
Disclaimers
7.1 No Representations Regarding Technology or Intellectual Property.
Datotech makes no representations about and disclaims all warranties, express or
implied, about the Technology, the
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Existing Proprietary Property, and any improvements thereto. Without limiting
the generality of the foregoing, Datotech disclaims any express or implied
warranties regarding the following:
(a) the fitness, usefulness, efficiency or profitability of the
Technology, the Existing Proprietary Property, the improvements thereto or any
of the rights granted herein;
(b) the validity or scope of any intellectual property rights; and
(c) that anything made, used or sold based on or deriving from the
Technology or any of the rights licensed herein will be free from infringement
of third party rights.
ARTICLE 9
Tern; Termination for Cause and Survival of Certain Provisions
8.1 Term. The term of this Agreement shall commence on the date hereof
and shall continue indefinitely unless terminated pursuant to the provisions of
this Agreement.
8.2 Termination for Cause. Upon a breach by NetFace of any of its
obligations hereunder, Datotech may terminate this Agreement upon sixty (60)
calendar days advance written notice to NetFace describing the grounds for
termination; however, such termination shall not occur if NetFace conclusively
demonstrates to Datotech's satisfaction before the end of such sixty (60)
calendar days that the breach has been cured.
8.3 Survival The rights and obligations contained in the following
Sections shall survive termination of this Agreement regardless of the method or
timing of its termination: 2.3, 3.1, 3.2, 4.1, 6.3, and 7.1.
8.4 Return of Existing Proprietary Property. If this Agreement shall be
terminated, NetFace shall return to Datotech all technical data, know--how,
confidential information and trade secrets so far as any of them consists of
written materials, prints and other tangible items which either bear a stamp
"confidential" or "confidential information" thereon or are designated in any
other way by Datotech, whether orally or in writing, as confidential
information. For purposes of this Agreement, all Technology as utilized in the
Licensed Items shall be classified as confidential information.
ARTICLE 9
Miscellaneous
9.1 Assignability. This Agreement shall not be assignable by either
party in whole or in part except upon the written and signed consent of the
other party, which shall not be unreasonably withheld.
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9.2 Binding Effect. Subject to the restrictions on assignability
______________ contained herein, this Agreement is binding on and inure to the
benefit of the parties and their respective authorized successors and assigns.
9.3 Further Assurances. NetFace agrees to execute and deliver any
__________________ additional documents and instruments and perform any
additional acts that may be necessary or appropriate to comply with its
obligations hereunder.
9.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and of Canada as to
all matters of interpretation, performance, remedies and enforceability. The
parties hereto hereby irrevocably submit to the jurisdiction of the Supreme
Court of British Columbia, Canada, over any action or proceeding arising out of
or relating to this Agreement and hereby irrevocably agree that all claims in
respect to any action or proceeding may be heard and determined in such Supreme
Court. The parties hereto irrevocably consent to the service of any and all
process in any such action or processing by the certified mailing with return
receipt of copies of such process to their address specified in this Agreement.
The parties hereto agree that a final judgment in any such action or proceeding
shall be conclusive and nay be enforced in any other jurisdiction by suit on the
judgment or any other manner provided by law. The parties hereto waive any
objection to venue in such state and any objection to an action or proceeding in
such state on the basis of forum non convenience.
9.5 Notice. All notices, requests or consents provided for or permitted
under this Agreement must be in writing and must be given either by sending the
writing in the mail addressed to the recipient, postage paid, registered or
certified mail, return receipt requested, which shall be effective upon receipt,
or by delivering the writing to the recipient in person, by courier or by
facsimile transmission to the address specified below:
If to the Licensor:
DSI Datotech Systems, Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ________________, Chairman
With a copy to:
If to the Licensee:
NetFace, LLC
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
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9.6 Headings and Certain Words. Headings are used in this Agreement for
the purpose of organization only and do not constitute terms of the Agreement.
The words "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular subdivision unless
otherwise expressly indicated.
9.7 Severability. If any provision of this Agreement or its application
to any person or circumstance shall be invalid, illegal, or unenforceable to any
extent, the remainder of this Agreement and its application shall not be
affected and shall be enforceable to the fullest extent permitted by law unless
the provision held to be illegal, invalid or unenforceable is so fundamental to
the sense of this Agreement that its illegality, invalidity or unenforceability
would make the enforceability of the remainder unreasonable.
9.8 Entire Agreement. This Agreement sets forth the entire, final and
exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and contemporaneous writings and
discussions between the parties pertaining hereto.
9.9 No Oral Modification. This Agreement may be amended or modified
____________________ only by a written instrument signed by proper and duly
authorized representatives of both parties.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
In witness whereof, the parties have caused this Agreement to be duly
executed on the date first set forth above.
NETFACE, LLC DATOTECH SYSTEMS INC.
Title: _________________________ Title: ________________________
By:___________________________ By: ___________________________
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