EXHIBIT 10.5
ASSIGNMENT OF SOFTWARE LICENSE
AGREEMENT
This Assignment of Software License Agreement is entered into effective as
of November 20, 1998 by and between Templar Corporation, a Delaware corporation
( "Templar"), with offices at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
CyberSentry, Inc., a Delaware corporation, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇., ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("CYBS").
WHEREAS, Templar acquired for publication and distribution original
computer programs from Learning Company Properties, Inc. (hereinafter
"LCP") under a License Agreement, dated October 2,1998 (the "LCP License");
and
WHEREAS, the LCP License includes specifically, each and every version of
the CyberSentry program, together with the trademark, "CyberSentry;" and
WHEREAS, Templar desires that CYBS publish and distribute Templar's
programs and CYBS desires to publish and distribute the programs subject
to and in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Licensed Media" shall mean all computer-readable media now known or
hereafter to become known including, without limitation, magnetic media storage
devices, CD-ROM, CD-DVD and other optical disks, electronic downloading, on-line
and any other human or machine readable medium.
1.2 "Program" or "Programs" shall mean the source code, object code,
including all data and/or resources therein, whether visual or numeric, of those
one or more computer software programs of Templar which were licensed to Templar
under the LCP License, and all related documentation.
1.3 "Trademarks" shall mean the trademark "CyberSentry."
2. ASSIGNMENT.
2.1 Assignment. Templar hereby assigns to CYBS (the "Assignment") all
of
Templar's right, title and interest in and to the LCP License, including
without limitation, Templar's exclusive, worldwide, right and license to
publish, use, distribute and sublicense the Programs incorporating the
Trademarks throughout the world and in the Licensed Media, subject to CYBS
hereby covenanting and agreeing to attorn to all of the terms and conditions of
the TLC License and subject to the terms and conditions hereinafter set forth.
2.2 Right to Modify the Software Programs. The rights assigned to CYBS
herein shall include the right to modify the Programs (including the source
code) in order to prepare derivative works and future versions of the Programs
2.3 Upgrades and Maintenance. Templar shall be under no obligation to
provide any upgrades to the Programs. Templar may provide software engineering
support to CYBS through September 30, 1999, provided, however, CYBS shall pay to
LCP $150,000, in consideration of the software engineering support under this
Section 2.3.
2.4 Closing Deliveries. CYBS shall have received at or prior to the
execution of this Agreement each of the following documents:
(i) copies of all technical data, product literature and other
documentation relating to the Programs, all in form and substance as provided to
Templar by the Learning Company; and
(ii) copies of all film, electronic files for all collateral
materials, gold masters, source code and related documentation and materials
relating to the Programs.
2.5 Delivery of Masters. CYBS acknowledges receipt of all golden masters
of the various versions of the Programs.
3. Purchase Price. In consideration of the Assignment granted hereunder, as
soon as practicable after the date hereof, CYBS shall issue to Templar or its
designee 3,000,000 shares of its Common Stock.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Templar. Templar hereby represents and warrants to CYBS that:
(a) Templar has all right, title and interest in and to the Programs,
including the sole and exclusive right to grant the Assignment, and such right,
title and interest shall be valid throughout the Term;
(b) the Programs do not infringe any copyright, trademark, trade secret or
other proprietary and intellectual property rights of any other person; and
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(c) Templar has the requisite authority to enter into this Agreement and
the granting of the Assignment and rights under this Agreement will not result
in the violation of: (i) the organizational documents or Bylaws of Templar, (ii)
any agreement, contract, lease, license, document or other commitment, written
or oral, with respect to the Programs to which Templar is a party or may become
bound, or (iii) any applicable law, rule, license or regulation.
4.2 CYBS. CYBS hereby represents and warrants to Templar that CYBS has
the requisite authority to enter into this Agreement and the performance of its
obligations under this Agreement will not result in the violation of: (i) the
organizational documents or Bylaws of CYBS, (ii) any agreement, contract, lease,
license, document or other commitment, written or oral, with respect to the
Programs to which CYBS is a party or may become bound, or (iii) any applicable
law, rule, license or regulation. All of the shares of Common Stock issued
pursuant to Section 3 shall be duly authorized, validly issued and fully paid
shares.
5. ACKNOWLEDGMENTS.
Templar hereby acknowledges and agrees that CYBS has full discretion with
respect to the Programs pursuant to the Assignment set forth above including,
but not limited to the Trademarks and that CYBS may charge for the use of the
Programs or trademark. Templar and CYBS hereby agree that CYBS may transfer or
sublicense the Programs and its rights under the LCP License.
6. INDEMNITY.
6.1 CYBS. CYBS shall indemnify and hold Templar harmless from and
against all claims, suits, demands, actions and proceedings, judgments,
penalties, damages, costs and expenses (including reasonable legal fees and
costs), losses or liabilities of any kind ("Damages") which may arise or result
from (a) the marketing or servicing by CYBS of the Programs, except for matters
referred to in Section 6.2; and (b) from a material breach of any
representation, warranty or agreement of CYBS. CYBS may in its sole discretion
transfer, assign, mortgage, charge, or otherwise encumber or dispose of any of
its rights under this Agreement .
6.2 Templar. Templar shall indemnify and hold CYBS harmless from and
against all Damages which may arise or result from (a) the Programs, or any part
thereof, infringing the copyright, trademark, trade secret or other proprietary
or intellectual property rights of any other person or entity; and (b) from a
material breach of any representation, warranty or agreement of Templar.
6.3 Litigation. With respect to any claims falling within the scope of
the foregoing indemnifications:
(a) each party agrees to notify the other promptly of and keep the other
fully advised with respect to such claims and the progress of any suits in which
the other party is not
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participating;
(b) the indemnifying party shall have the right to defend any suit
instituted against the indemnified party;
(c) the indemnifying party shall have the right to participate, at its
expense, in the defense of a claim or suit made or filed against the indemnified
party; and
(d) a party participating in or assuming the defense of a claim or suit
against the other party shall not settle such claim or suit without the prior
written approval of the other party, which approval will not be unreasonably
withheld or delayed.
6.4 Indemnification Limits. Neither party shall be required to make any
indemnification payment pursuant to this Section 6 until such time as the total
amount of all Damages that have been directly suffered or incurred by such party
exceeds US $25,000.
7. CONFIDENTIALITY.
Neither party shall issue a press release relating to this Agreement
without the prior written consent of the other party. The terms of this
Agreement are confidential and shall not be disclosed to any other party without
the written consent of the other party. Each party shall (and shall take such
reasonable action to ensure that its employees) preserve in strict confidence
any information obtained by the other party or its employees, concerning its
business or any of its affiliates including, without limitation to, trade
secrets and proprietary information, and agrees, except as expressly permitted
herein, to refrain (and shall take such reasonable action to assure that its
employees) from disclosing, during the term of this Agreement or at any time
thereafter, any such information to any person or persons, or business
organizations.
8. NOTICES.
Notices permitted or required under this Agreement shall be sent to the
addresses set forth below and shall be sent by hand delivery, by telecopier
followed with written confirmation sent by mail, by overnight courier or by
registered or certified mail, return receipt requested. Notices shall be deemed
to have been given on the date actually received if sent by hand delivery or
overnight courier, on the date sent if sent by telecopier, or three (3) days
after mailing if sent by registered or certified mail.
If to:
CyberSentry, Inc.
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇▇.▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to:
Templar Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone ▇▇▇-▇▇▇-▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
9. DISPUTE RESOLUTION.
9.1 Arbitration. Any dispute, controversy or claim arising out of or in
connection with this Agreement shall be determined and settled by arbitration in
New York, New York pursuant to the rules then in effect of the American
Arbitration Association, and each party hereby consents to the jurisdiction
thereof. Any award rendered shall be final and conclusive upon the parties and
a judgment thereon may be entered in a court having competent jurisdiction. The
party submitting such dispute shall request the American Arbitration Association
to: appoint an arbitrator who is knowledgeable in the microcomputer area and
familiar with the data processing industry and who will follow substantive rules
of the law; allow for the parties to request discovery pursuant to the rules
then in effect under the Federal Rules of Civil Procedure for a period not to
exceed sixty (60) days; require the testimony to be transcribed; and require the
award to be accompanied by findings of fact and a statement of reasons for the
decision. All costs and expenses, including attorney's fees, of all parties
incurred in any dispute which is determined and/or settled by arbitration
pursuant to this Section 13 shall be borne by the party determined to be liable
in respect of such dispute; provided, however, that if complete liability is not
assessed against any one party, the parties shall share the total costs in
proportion to their respective amounts of liability so determined.
9.2 Injunctive Relief. Notwithstanding Section 9.1, the parties hereto
further agree that any breach of this Agreement is likely to result in
irreparable injury to the other and each party agrees that the other shall be
entitled, if it so elects, to institute and prosecute proceedings in any court
of competent jurisdiction to enforce the specific performance of this Agreement
by such party, or to enjoin such party from activities in violation of this
Agreement.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement contains the entire understanding of
the parties hereto relating to the Program, supersedes any prior written or oral
agreement or understandings between the parties with respect to the Programs,
and cannot be changed or terminated orally. This Agreement may be amended only
by a writing signed by the parties
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hereto.
10.2 Enforceability. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of any other
provision of this Agreement.
10.3 Assignment. Except as set forth herein, neither this Agreement nor
the rights or obligations hereunder may be assigned by either party without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided however, that this Agreement may be assigned by
either party to an Affiliate of such party, or upon the merger of the party or
the sale of such party's business, all without the consent of the other party,
upon providing notice to the other party.
10.4 Independent Contractors. Templar and CYBS shall perform their duties
pursuant to this Agreement as independent contractors. Nothing in this
Agreement shall be construed to create a joint venture, partnership or other
joint relationship between Templar and CYBS. Neither party shall have the
ability to incur any obligation on behalf of the other party.
10.5 Successors. All rights and obligations arising out of this Agreement
shall enure to the benefit of, and be binding on and enforceable by the parties
and their respective successors and permitted assigns.
10.6 Governing Law. This Agreement and its validity, construction and
performance shall be governed in all respects by the internal laws of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed under seal as of the date first set forth above.
CyberSentry,Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Templar Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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