TALMATCH MASTER LICENSE AGREEMENT
KOREA
THIS AGREEMENT made as of this 22nd day of June, 2001.
BETWEEN:
▇▇▇▇▇▇▇ TECHNOLOGIES INC., a corporation organised and
existing under the laws of the state of Delaware, in the
United States of America; ("LICENSOR")
-and-
NEWORK SOLUTION INC., a corporation organised and existing
under the laws of the Republic of Korea, ("LICENSEE")
WHEREAS the LICENSOR has developed, established and operates a
global, web-based network (the "TalMatch Network") which allows professional
recruiting firms to electronically share and exchange data to match optimal
candidates and positions (the "TalMatch Service"), and has established a system
of operating the TalMatch Service comprising, inter alia, software, websites,
databases, marketing techniques, business methods, documentation, domain names,
trade marks and other Intellectual Property and Confidential Information, all as
further defined below (the "TalMatch System"), which performs substantially the
functionality exemplified at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/; and
WHEREAS the LICENSOR is the owner of all rights in and to the
TalMatch Network, the TalMatch Service and the TalMatch System throughout the
world, together with all goodwill connected therewith; and
WHEREAS the LICENSEE wishes to obtain a license and the LICENSOR
wishes to grant a license to use the TalMatch System to perform the TalMatch
Service in the Territory per Schedule B;
NOW THEREFORE, in consideration of the mutual premises and
conditions set out in this Agreement, as well as other good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the parties hereto agree as follows:
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PART I : DEFINITIONS & SCHEDULES
1.1 DEFINITIONS.
The parties agree that, in this Agreement, unless otherwise
specifically indicated, the following terms have the following meanings:
"ANNUAL MINIMUM ROYALTIES" means the royalty payments so described and set out
in Schedule D, to be determined by the LICENSOR and paid by the LICENSEE
throughout the Term;
"ATTRIBUTES " means a pre-defined set of categories, comprising languages,
education, training, skills and duties that are applicable to specific roles
within particular industries;
"BUSINESS DAY" means a day on which business is normally conducted in the
Province of Ontario, excluding statutory holidays, Saturdays and Sundays;
"CONFIDENTIAL INFORMATION" means all non-public information disclosed to the
LICENSEE by the LICENSOR or its employees or agents whether in written, oral or
electronic form that relates to the TalMatch Network, the TalMatch Service, the
TalMatch System or the LICENSOR's Intellectual Property, business methods,
business plans, business opportunities, finances, research, development,
know-how, trade secrets or personnel; third-party confidential information
disclosed to the LICENSEE by the LICENSOR; the terms and conditions of this
Agreement; the existence of discussions between the LICENSEE and the LICENSOR;
and all information designated by the LICENSOR as proprietary and/or
confidential or that, by the nature of the circumstances surrounding disclosure,
ought to be treated as proprietary and/or confidential;
Confidential Information, however, does not include information that: (i.)is now
or subsequently becomes generally available to the public through no fault or
breach on the part of the LICENSEE; (ii) is independently developed by the
LICENSEE without the use of any Confidential Information; or (iii) the LICENSEE
rightfully obtains from a third party who has the right to transfer or disclose
it;
"DOMAIN NAMES" means the Internet domain names registered and owned by the
LICENSOR in conjunction with the TalMatch System;
"EFFECTIVE DATE" means the date first written above;
"GLOBAL DATA BASE" means the aggregate data base containing all of the data in
the Regional Databases;
"INTELLECTUAL PROPERTY" means patents, trade marks, domain names, copyright,
Confidential Information, trade secrets, know-how, unpatented inventions and
related rights in or to the TalMatch Network, the TalMatch System, the TalMatch
Service, or any of the components thereof, including without limitation the
TalMatch Application , the ▇▇▇▇▇▇▇ Help Desk Application, together with any
translations, adaptations, registrations, applications for registration, or
rights to register same in any jurisdiction;
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"LICENSE FEES" means the license fees set out in Schedule "D" to this Agreement;
"LICENSED MATERIALS" means the materials to be provided by LICENSOR to LICENSEE
pursuant to the Licenses granted in this Agreement, listed in Schedule "A"
hereto;
"LISTING" means a candidate profile or a job opportunity profile listed on the
Regional Website;
"LISTING AGREEMENT" means an agreement entered into between LICENSEE and a
qualified professional recruiting firm within the Territory;
"OPERATIONS MANUAL" means any manual prepared, developed and distributed by the
LICENSOR setting out and describing the operation of the TalMatch Service in
accordance with the TalMatch System, and shall include additions, deletions or
modifications to the manual made by the LICENSOR from time to time;
"REGIONAL WEBSITE" means the website to be established, operated and maintained
by LICENSOR as part of the TalMatch Network, to which the LICENSEE shall be
given access to enable the LICENSEE to provide the TalMatch Service in the
Territory;
"REGIONAL DATABASE" means the database maintained by the LICENSOR on behalf of
the LICENSEE containing all of the data posted to the Regional Website;
"ROYALTIES" means the royalty payments payable by the LICENSEE to the LICENSOR
and specified in Schedule D hereto;
"SOFTWARE LICENSE" means the license to use the TalMatch Application and the
▇▇▇▇▇▇▇ Help Desk Application as granted herein;
"TALMATCH APPLICATION" means the computer software application forming part of
the TalMatch System to which the LICENSEE shall be granted access in order to
enable the LICENSEE to provide the TalMatch Service on the Regional Website in
the Territory, including any upgrades, interim maintenance releases,
modifications, customizations or enhancements to such software;
"TALMATCH WEBSERVER" means the webserver of the TalMatch Network, established,
operated and maintained by the LICENSOR, hosting all of the Regional Websites,
and providing the LICENSEE access to the Regional Database;
"TALMATCH NETWORK" means the global network of websites established and owned by
the LICENSOR, consisting of all of the licensed Regional Websites in the
different Territories;
"TALMATCH SERVICE" means the service developed and owned by the LICENSOR, to
allow professional recruiting firms to electronically share and exchange data
over the internet and to match optimal candidates to positions;
"TALMATCH SYSTEM" means the TalMatch Application, ▇▇▇▇▇▇▇ Help Desk Application,
Trade Marks, Operations Manual, Regional Website, Regional Database, marketing
techniques, business
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methods, Domain Names, Intellectual Property, Confidential Information, and all
other Licensed Materials provided to the LICENSEE by the LICENSOR pursuant to
and during the term of this Agreement, pertaining to the management and
operation of the TalMatch Service in the Territory;
"TALMATCH LICENSE" means the license to use the TalMatch System and the TalMatch
Service as granted herein;
"▇▇▇▇▇▇▇ HELP DESK APPLICATION" means the internet-based software application to
which the LICENSOR provides access to the LICENSEE to assist users of the
TalMatch Service;
"TERM" means the term of this Agreement commencing upon the Effective Date and
enduring until the termination or expiry thereof;
"TERRITORY" means the geographic region set out in Schedule "B" hereto;
"TRADE MARKS" means the trade marks as set out in Schedule "C" hereto;
"TRADE MARKS AND DOMAIN NAMES LICENSE" means the License to use the Trade Marks
and Domain Names as granted herein.
1.2 SCHEDULES
The following are the schedules attached to and forming part of this
Agreement
Schedule "A" - Licensed Materials
Schedule "B" - Territory and Language
Schedule "C" - Trade Marks and Domain Names
Schedule "D" - License Fees and Royalties
Schedule "E" - Additional License
Schedule "F" - Litigation Against Licensee
Schedule "G" - Training, Implementation and Deployment Timetable
Schedule "H" - Payment Method
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PART II: TALMATCH SYSTEM AND SERVICE LICENSE
2.1 GRANT
Subject to the terms and conditions of this Agreement, the LICENSOR hereby
grants to the LICENSEE an exclusive, transferable, perpetual, revocable license
to use the TalMatch System, as provided by the LICENSOR, in the operation of the
TalMatch Service in the Territory for the Term of this Agreement, unless earlier
terminated in accordance with the provisions hereof (the "TalMatch License").
2.2 CONDITIONS OF EXCLUSIVITY
(a) The TalMatch License shall remain exclusive to the LICENSEE for so long as
the LICENSEE is in compliance with all the terms and conditions hereof,
including, but not limited to, payment by the LICENSEE to the LICENSOR,
within the prescribed time periods, of all Annual Minimum Royalties,
License Fees, and Royalties (as per Schedule "D").
(b) The LICENSOR shall establish Annual Minimum Royalties to be paid by the
LICENSEE. During the initial three years of the Term, the LICENSEE shall
be required to pay the Annual Minimum Royalties regardless of whether its
revenues achieve the levels required by such Annual Minimum Royalties, in
order to maintain the exclusivity of the License during its business
establishment phase. In the fourth and all following years of the Term,
should the LICENSEE not achieve the revenue levels required to meet the
Annual Minimum Royalties, the LICENSOR shall have the option, in its sole
discretion, to either terminate the TalMatch License for the Territory, or
to render it non-exclusive.
2.3 RESTRICTIONS & ACKNOWLEDGEMENT
The LICENSEE hereby acknowledges that notwithstanding the rights granted
herein, the LICENSOR retains all rights in and title to the TalMatch Service,
the TalMatch System and each of its components, including, without limitation,
all Intellectual Property. The LICENSEE explicitly acknowledges that no right,
title or interest to the TalMatch System or the Intellectual Property, beyond
that specifically provided for in this Agreement, shall pass to or rest in the
LICENSEE. This License is not transferable by the LICENSEE except in accordance
with the terms set out herein. Except as expressly set out herein, the LICENSEE
will not use or permit any person or entity under its control to use or copy any
of the Intellectual Property or the components of the TalMatch System without
prior written consent of the LICENSOR.
2.4 OBLIGATIONS OF THE LICENSOR
2.4.1 The LICENSOR shall provide to the LICENSEE within ten (10) Business Days
of the Effective Date of this Agreement for translation and adaptation:
(i) the English version of the Regional Website html pages;
(ii) the English version of the Attributes;
(iii) any other Licensed Materials which require translation and
adaptation for use on or in conjunction with the Regional
Website.
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2.4.2 Within thirty (30) Business Days after receipt of acceptable translated
and adapted materials from LICENSEE, LICENSOR shall provide LICENSEE
access to the TalMatch System on the Regional Website. LICENSEE
acknowledges and confirms that all intellectual property rights in such
translated or adapted materials shall be the exclusive property of
LICENSOR.
2.4.3 On an ongoing basis, the LICENSOR shall provide to the LICENSEE:
(a) access to the Global Database through the Regional Website;
(b) the ability to input data, including candidate profiles and job
opportunity profiles into the Regional Database;
(c) access to the TalMatch Application as necessary to provide the
TalMatch Service in the Territory; and,
(d) access to the ▇▇▇▇▇▇▇ Help Desk Application.
2.4.4 The LICENSOR shall further:
(a) operate and maintain the TalMatch Network and TalMatch System;
(b) operate and maintain the TalMatch Webserver;
(c) operate and maintain the Regional Website;
(d) operate and maintain the Regional Database, and keep the data
therein secure; and,
(e) register and maintain the Trademarks and the Domain Names.
(f) maintain strict privacy of the regional database, including contact
information of candidates and employers
2.5 OBLIGATIONS OF THE LICENSEE
2.5.1 The LICENSEE acknowledges that the LICENSOR is the owner of all right,
title and interest in and to the TalMatch Network, the TalMatch System and
the TalMatch Service.
2.5.2 The LICENSEE Shall:
(a) use its access to the Regional Website in accordance with the Standards
and Guidelines for Regional Websites in the Operations Manual provided to
the LICENSEE by the LICENSOR and modified from time to time;
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(b) vigorously and with best efforts market and promote the TalMatch Service
in the Territory and License only qualified professional recruiting
companies in order to increase the revenue of the TalMatch Service in the
Territory ;
(c) designate appropriate trainees as indicated on the Training Schedule and
send them, at the LICENSEE's expense, to be trained at the times and
locations specified by the LICENSOR;
(d) supply an appropriate sales force to sufficiently access the market
potential for the TalMatch Service for the Territory;
(e) supply skilled IT personnel to support the TalMatch Service in conjunction
with the Regional Website;
(f) establish, operate and maintain a helpdesk in conjunction with the
Regional Website, to provide services in all relevant languages in the
Territory, using the ▇▇▇▇▇▇▇ Help Desk Application;
(g) translate or have translated, at the sole expense of the LICENSEE, into
all relevant languages for the Territory, the content of the Regional
Website and attribute database, the content of the TalMatch Help Desk
Application, including inter alia all content for the Regional Website,
and provide all such translated material to LICENSOR in accordance with
the Implementation and Deployment Timetable set out in Schedule "G";
(h) provide or obtain all necessary local Internet administration for the
Regional Website, including securing an ISP as well as any necessary
permits required to conduct business in the Territory, to the LICENSOR;
(i) provide access to and enter into Listing Agreements with only users that
are registered or operate, as the case may be, as qualified professional
employment recruiting firms within the Territory;
(j) pay the License Fees, Annual Minimum Royalties and Royalties as
contemplated herein, in accordance with the time requirements set out in
this Agreement;
(k) provide, for posting on the Regional Website, the standard rates charged
by the LICENSEE for Listings;
(l) provide monthly financial reports calculating Royalties due to LICENSOR
pursuant to this Agreement.
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PART III : SOFTWARE LICENSE
In addition to the terms and conditions of the TalMatch License, the
LICENSEE's rights to the use of the TalMatch Application and ▇▇▇▇▇▇▇ Help Desk
Application are subject to the further terms and conditions set forth below (the
"Software License").
3.1 USE
The LICENSEE shall use the TalMatch Application and the ▇▇▇▇▇▇▇ Help Desk
Application only in association with its operation of the TalMatch System and
provision of the TalMatch Service pursuant to this Agreement, to process its own
data and shall not use the TalMatch Application or the ▇▇▇▇▇▇▇ Help Desk
Application for any other purpose.
3.2 MODIFICATIONS/CUSTOMIZATIONS
Under no circumstances shall the LICENSEE modify, alter or customize the
TalMatch Application or the ▇▇▇▇▇▇▇ Help Desk Application. All such
modification, customization or alterations shall be done only by the Licensor or
the Licensor's authorized representative
3.3 UPGRADES/INTERIM MAINTENANCE RELEASES
The LICENSOR shall provide to the LICENSEE at no further cost, access to
any and all upgrades, modifications or interim maintenance release versions of
the TalMatch Application and the ▇▇▇▇▇▇▇ Help Desk Application. Any such
upgrades, modifications or interim maintenance release version of the TalMatch
Application and the ▇▇▇▇▇▇▇ Help Desk Application, to which the LICENSEE is
provided access shall be subject to the terms, conditions and obligations of
this Agreement.
3.4 REVERSE ENGINEERING
The LICENSEE shall not reverse engineer, decompile or disassemble any
source code or object code version of the TalMatch Application or the ▇▇▇▇▇▇▇
Help Desk Application without the prior written approval of the LICENSOR.
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PART IV : TRADE MARKS AND DOMAIN NAMES
4.1 LICENSE
(a) The LICENSEE acknowledges that the LICENSOR is the owner of the Trade
Marks and Domain Names. In addition to the terms and conditions of the
TalMatch System License, the LICENSEE's rights to the use of the Trade
Marks and Domain Names is subject to the further term and conditions set
forth below (the "Trade Marks and Domain Names License").
(b) The LICENSEE is permitted to use the Trade Marks and Domain Names for the
Term of this Agreement and within the Territory in association with the
operation of the TalMatch System, the TalMatch Service, the Regional
Website, and with the specific wares or services as set out in association
with the Trade Marks and Domain Names in Schedule C, and with respect to
any literature, packaging and advertising materials pertaining thereto.
4.2 USE OF TRADE MARKS AND DOMAIN NAMES
The LICENSEE agrees to use the Trade Marks and Domain Names only under and
in compliance with the terms of this Agreement. The LICENSEE shall not use the
Trade Marks or Domain Names for any other purpose and shall not use the Trade
Marks or Domain Names as part of its corporate name or any trade name. The
LICENSEE's use of the Trade Marks and Domain Names shall indicate that the Trade
Marks and Domain Names are owned by the LICENSOR and used by the LICENSEE under
License.
4.3 OWNERSHIP OF TRADE MARKS AND DOMAIN NAMES
The LICENSEE acknowledges that the Trade Marks and Domain Names shall
remain the sole property of the LICENSOR. The LICENSEE shall not use the Trade
Marks or Domain Names in any manner which tends to suggest or represents that
the LICENSEE is the owner of the Trade Marks or Domain Names. The Trade Marks
and Domain Names License shall not grant any ownership or security right or
title in any intellectual property relating to the Trade Marks or Domain Names.
The LICENSOR shall retain all rights not specifically granted to the LICENSEE in
this Agreement.
4.4 REGISTRATION
The LICENSEE will cooperate with the LICENSOR for the purpose of
registering, amending or supplementing the LICENSOR's registration (s) for the
Trade Marks and Domain Names as the LICENSOR may see fit, and protecting,
preserving, and enhancing the Trade Marks and Domain Names and LICENSOR's
interests therein. In furtherance of such obligations, the LICENSEE shall
execute such documents as are required to give effect to the terms of this
Agreement and to ensure the validity of the Trade Marks and Domain Names and the
ownership of the LICENSOR thereof.
4.5 QUALITY CONTROL AND ADVERTISING
The LICENSEE shall immediately cease using the Trade Marks and Domain
Names on, or in association with, the TalMatch Service and/or the TalMatch
System, or any business carried on
9
by the LICENSEE, should the LICENSEE fail to meet the standards for use of the
Trade Marks and Domain Names provided to the LICENSEE from time to time by the
LICENSOR. Prior to beginning commercial use or distribution, the LICENSEE shall
forward to the LICENSOR samples of proposed advertising or marketing materials
which contain or refer to the Trade Marks or Domain Names for approval. The
LICENSOR shall advise the LICENSEE if it does not grant such approval within ten
days of receipt of such materials. The LICENSEE shall permit an authorized
representative of the LICENSOR to inspect, at all reasonable times, the
LICENSEE'S use of the Trade Marks and Domain Names in order to permit the
LICENSOR to verify that such use is in compliance with the standards set from
time to time by theLICENSOR. The LICENSEE agrees that all services provided in
association with the Trade Marks and Domain Names shall be provided in
accordance with all applicable laws.
4.6 PRESERVATION AND ENHANCEMENT OF THE LICENSOR'S INTEREST
The LICENSEE shall not:
(a) do or omit to do any act which might impair, jeopardize, violate, or
infringe any of the Trade Marks or Domain Names or the LICENSOR' s
rights thereto;
(b) directly or indirectly dispute or contest ownership, validity or
enforceability of the Trade Marks or Domain Names or the
registration thereof, or assist any other party to do so;
(c) do anything through the LICENSEE's use of the Trade Marks, or Domain
Names or otherwise, to prejudice or hamper the reputation or
goodwill of the LICENSOR; or
(d) claim, use, or apply to register, record, or file any trade ▇▇▇▇,
trade name, domain name, copyright, or design that is identical or
confusingly similar to the Trade Marks or Domain Names assist any
other party to do so.
4.7 INFRINGEMENT
If the LICENSEE becomes aware of any use by any other party of a trade
name, trademark, domain name, get up of goods, or mode of advertising that might
reasonably amount to infringement of the Trade Marks or Domain Names or to
unfair competition or passing off in respect of the Trade ▇▇▇▇(s), the LICENSEE
shall promptly report particulars of such usage to the LICENSOR and provide a
sample thereof where reasonably possible.
4.8 CLAIMS BY OTHERS
If the LICENSEE becomes aware that any person alleges that any of the
Trade Marks or Domain Names is invalid, infringes the rights of any person, or
is open to any other form of attack, the LICENSEE shall not make any admissions
in respect of same and will promptly report the matter to the LICENSOR.
4.9 OWNER HAS CONDUCT OF PROCEEDINGS
The LICENSOR will have conduct of all legal proceedings and negotiations
relating to the Trade Marks and Domain Names. The LICENSEE shall provide all
requested assistance to the LICENSOR at the LICENSOR's expense.
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PART V : CONFIDENTIAL INFORMATION
5.1 CONFIDENTIAL INFORMATION AS TRADE SECRET
The LICENSEE acknowledges that the Confidential Information is
confidential, proprietary and a trade secret.
5.2 NON-DISCLOSURE AND USE
The LICENSOR may, from time to time, prior to and during the term of this
Agreement, disclose to the LICENSEE Confidential Information. The LICENSEE
agrees to treat such information as confidential and proprietary and to protect
it, including, without limitation:
(a) The LICENSEE agrees not to use such Confidential Information for any
purpose other than that contemplated by this Agreement. The LICENSEE
shall not, during the Term of this Agreement or at any time
thereafter without the prior written authorization of the LICENSOR,
disclose the Confidential Information to anyone. The LICENSEE agrees
to handle, preserve, and protect Confidential Information with the
same degree of care which it affords or would afford its own
confidential information, including taking efforts to avoid
disclosure of such Confidential Information to any third party, at
any time. The LICENSEE shall reveal such Confidential Information
only to those employees, agents, representatives or business
associates who, in its good faith judgement, have a need to know
such information.
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PART VI : PAYMENTS AND CONSIDERATION
6.1 CONSIDERATION
As consideration for the TalMatch License, the Software License, the Trade
▇▇▇▇ and Domain Names License and the disclosure of Confidential Information, as
well as other matters relating to the TalMatch Network, the TalMatch System, the
TalMatch Service and to this Agreement, the LICENSEE shall pay to the LICENSOR
the License Fees, Annual Minimum Royalties, and Royalties, as set out in
Schedule "D" to this Agreement.
6.2 PAYMENT
6.2.1 LICENSOR will invoice LICENSEE on a monthly basis for Royalties, in
U.S. dollars, and LICENSEE shall pay promptly that amount not
already paid in respect of the monthly portion of the Annual Minimum
Royalties, in accordance with the procedure set out in Schedule H.
6.2.2 LICENSEE shall pay in advance, the minimum monthly installment of
the Annual Minimum Royalties, by electronic funds transfer, as
directed by LICENSOR.
6.2.3 All references to monetary amounts in this Agreement shall be in
United States dollars, unless otherwise specifically indicated.
6.4 MONTHLY REPORTS
Within five (5) Business Days of the end of each month, the LICENSEE shall
furnish a report to the LICENSOR showing the LICENSEE'S gross revenue for
Listings for the month and calculating the Royalties owing in respect thereof.
The LICENSEE shall pay to the LICENSOR such Royalties owing in excess of the
advance minimum monthly payment not more than five days thereafter, via
electronic funds transfer as directed by the LICENSOR;
6.5 ANNUAL STATEMENTS
The LICENSEE shall submit to the LICENSOR annual audited revenue reports
related to its operation of the TalMatch Service, showing revenues received as
at December 31st of each year during the Term. Such reports shall be prepared,
at the LICENSEE'S expense, certified by an independent auditor as to the gross
revenues and Royalties payable, and delivered to the LICENSOR by no later than
January 31st of the following year.
6.6 MATERIAL BREACH
The obligation herein imposed upon the LICENSEE for its failure to report
its gross revenue in its entirety shall be in addition to and not in lieu of the
rights and remedies of the LICENSOR elsewhere provided in this Agreement with
respect to the LICENSEE's breach thereof.
6.7 FURTHER REPORTS
In the event that the LICENSOR requires the LICENSEE to submit information
and reports other than those specified herein, the LICENSEE shall provide such
information and reports to the LICENSOR in the manner and at such times as it
may specify. If the LICENSOR prescribes
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the use of a specific form for the presentation by the LICENSEE of any of the
information or report required herein, the LICENSEE shall submit such
information and reports to the LICENSOR on the forms designated by the LICENSOR
for such purpose.
6.8 CONFIDENTIALITY
The LICENSOR and its representatives shall keep confidential all such
information provided by the LICENSEE and shall not disclose same to any person
unless otherwise required by law.
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PART VII : GENERAL PROVISIONS
7.1 REPRESENTATIONS AND WARRANTIES OF THE LICENSOR
The LICENSOR represents and warrants to the LICENSEE that:
(a) The LICENSOR is a corporation duly incorporated and validly existing
under the laws the state of Delaware of the United States of
America, in good standing;
(b) The LICENSOR has due and sufficient right, title and authority to
enter into this Agreement on the terms and conditions herein set
forth, and the entering into of this Agreement shall not violate any
agreement, law, by-law or court order to which the LICENSOR is a
party or by which it is bound.
7.2 REPRESENTATIONS AND WARRANTIES OF THE LICENSEE
The LICENSEE represents and warrants to the LICENSOR that:
(a) the LICENSEE is a corporation duly incorporated and validly existing
under the laws of the Republic of Korea , in good standing, and is
licensed to carry on business in the Territory;
(b) the LICENSEE has due and sufficient right, title authority to enter
into this Agreement on the terms and conditions herein set forth,
and the entering into of this Agreement shall not violate any
agreement, law, by-law or court order to which the LICENSEE is a
party or by which it is bound.
(c) except as disclosed in Schedule "F", there is no outstanding
litigation of any form which involves the LICENSEE, affecting the
LICENSEE's ability to enter into or perform its obligations under
this Agreement or which could be expected to adversely affect the
marketing, business development or provision of the TalMatch Service
by the LICENSEE;
(d) it shall keep the TalMatch License, Software License and Trade Marks
and Domain Names License, free of any and all liens, claims and
other forms of encumbrance whatsoever.
7.3 INJUNCTIVE RELIEF
The parties agree that any unauthorized use of any the LICENSOR's
Intellectual Property rights, including, without limitation, the TalMatch
Service, the TalMatch System, or any of its components, and the Regional
Website, made or caused by the LICENSEE will result in irreparable harm to the
LICENSOR, which may not be adequately compensated for by damages. The parties
further agree that the LICENSOR shall be entitled to a court-ordered injunction
restraining such conduct in the event such use is made, threatened, or caused by
the LICENSEE.
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7.4 LIMITATION OF LIABILITY
Except as specifically set out in this Agreement, the LICENSOR makes no
representations or warranties of any kind, express or implied, including without
limitation any warranty of merchantability or fitness for any particular
purpose. The LICENSOR shall not be liable to the LICENSEE for any incidental,
special or consequential damages caused by the breach of any term, condition,
representation or warranty of this Agreement, including, without limitation,
loss of profits, loss of data, loss of computer time or any commercial or
economic loss. The liability of the LICENSOR shall, in any event, be limited to
the total amount paid by the LICENSEE to the LICENSOR as the License Fee set out
in Schedule D.
7.5 INDEMNIFICATION
The LICENSEE shall indemnify the LICENSOR against all claims (including
liabilities and legal costs and disbursements) made against the LICENSOR arising
from the activities of the LICENSEE in connection with its use of the TalMatch
Network, TalMatch System, Regional Website, Trade Marks or Domain Names, or its
provision of the TalMatch Service.
7.6 INFRINGEMENT
The LICENSEE shall inform the LICENSOR immediately of any activity of any
person or entity of which the LICENSEE becomes aware which may constitute
infringement of any of the Intellectual Property, and shall co-operate fully and
assist the LICENSOR in any action which the LICENSOR may determine is necessary
to restrain such infringement and/or recover damages thereof.
7.7 LEGAL PROCEEDINGS
The LICENSOR shall have carriage of any legal proceedings arising in
connection with the use of the Intellectual Property by the LICENSEE and has the
exclusive right to settle any such matter. The LICENSEE shall cooperate fully
with the LICENSOR in the conduct of the such proceedings. The LICENSEE shall
either retain the legal counsel designated by the LICENSOR or may retain its own
counsel at its own expense.
7.8 ARBITRATION
All disputes, controversies, or differences which may arise between the
LICENSOR and the LICENSEE out of, in relation to, or in connection with this
Agreement, or for the breach hereof, shall be settled by mutual consultation
and, if necessary, by a mediation procedure to be agreed upon between the
parties in good faith as promptly as possible, but failing an amicable
settlement within thirty (30) days of the notification of one party by the other
that there is a dispute, shall be finally settled by arbitration in the English
language, with interpreters as required, in the London Court of Arbitration,
London, England, in accordance with the United Nations Commission on
International Trade Law ("UNCITRAL") Arbitration Rules, at the relevant time in
force. The award of the arbitration shall be final and binding upon the parties
hereto, and enforceable in any court of competent jurisdiction.
7.9 ASSIGNMENT
The LICENSOR shall have the right to assign this agreement or any right
hereunder without consent of the LICENSEE. The LICENSEE has been carefully
chosen by the LICENSOR, and shall not assign its rights or obligations hereunder
without the prior written
15
approval of the LICENSOR, which approval, shall not be unreasonably withheld.
For the purposes of this article, the term "assign" shall include, without
limitation, a merger, sale of assets or business, or other transfer of control
by operation of law or otherwise.
7.10 BINDING NATURE
This Agreement is binding on the parties, their successors and permitted
assigns.
7.11 FORCE MAJEURE
Neither party to this Agreement shall be liable for an omission or delay
in the execution of its obligations hereunder caused by any event beyond the
reasonable control of that party. The time for the fulfillment of the obligation
shall be extended for a period equal to the delay, up to a maximum of thirty
days. After a delay of thirty days, the party subject to the delay shall be
deemed to be in default of its obligations under this Agreement.
7.12 DEFAULT
Any of the following events shall constitute a default of a party's
obligations under this Agreement:
(a) failure of the LICENSEE to pay any License Fee, Royalties, Annual
Minimum Royalties, or other payment or charge, when due and payable,
during the term of this Agreement; or
(b) failure by either party to perform, keep or observe any material
term, provision, warranty, condition or obligation contained in this
Agreement, unless otherwise specifically excused hereof by the other
party; or
(c) the LICENSEE becomes insolvent or makes general assignment for the
benefit of its creditors, files, or has filed against it a petition
in bankruptcy, is adjudicated bankrupt or insolvent, or attempts to
avail itself of any applicable statute relating to insolvent
debtors; or
(d) a receiver or other custodian (permanent or interim) of all or any
part of the business of the LICENSEE is appointed by instrument or
by court order, any execution or other similar process of any court
becomes enforceable against the LICENSEE or its assets, or distress
is made against the LICENSEE's assets or any part thereof; or
(e) the LICENSEE ceases or changes or takes any steps to cease or change
the operation or nature of its business; or there is a change of
control of the LICENSEE's business.
7.13 DEFAULT NOTICE
Any event of default shall entitle the non-defaulting party to provide the
defaulting party a written notice of default requiring the defaulting party to
remedy the default in question.
7.14 TERMINATION
If either party to this Agreement fails to correct a default, as specified
above, within thirty (30) days after receipt of written notice to do so from the
other party to this Agreement, the party serving such notice may, in addition to
any other rights it may have under this Agreement or otherwise under law,
unilaterally terminate this Agreement forthwith with no further obligations to
the defaulting party except that all License Fees, Annual Minimum Royalties,
Royalties or other
16
payments due to the LICENSOR from the LICENSEE shall become immediately due and
payable. The right of either party to terminate this Agreement shall not be
affected by its failure, if any, to take action with respect to any previous
default. Termination of this Agreement shall not affect any right of action of
either party arising from act or omission of the other, as the case may be,
prior to the termination of this Agreement taking effect.
7.15 WAIVER
Waiver of any default shall not be construed as a waiver of either a
subsequent or continuing default. Termination of this Agreement shall not affect
a party's liability by reason of any act, default or occurrence prior to such
termination, nor shall it preclude the non-defaulting party from exercising or
pursuing any other right or remedy which may be available to it at law or in
equity, including a suit for damages or for specific performance.
7.16 EFFECTS OF TERMINATION
Upon expiry or termination for any reason of this Agreement:
(a) the LICENSEE shall immediately discontinue and permanently refrain
from any use of the product literature, advertising material or
written materials bearing the Trade Marks, Domain Names or any other
Intellectual Property or any ▇▇▇▇, word, symbol or device similar to
the Trade Marks or Domain Names associated with the TalMatch
Network, TalMatch Service or TalMatch System;
(b) All rights and privileges granted by this Agreement to the LICENSEE
shall immediately revert to the LICENSOR.
(c) the LICENSEE shall cease to provide the TalMatch Service, use the
TalMatch System or any of the components thereof, and thereafter
refrain from holding itself out as a LICENSEE of the LICENSOR;
(d) the LICENSEE shall immediately and at its own expense return to the
LICENSOR any and all materials relating to the TalMatch Network,
TalMatch Service or TalMatch System, including without limitation,
relating to TalMatch Application, the ▇▇▇▇▇▇▇ Help Desk Application,
the Trade Marks, Domain Names, Intellectual Property and
Confidential Information, and shall keep no copies in any form
whatsoever;
(e) the LICENSEE shall immediately pay to the LICENSOR all amounts owing
by it to the LICENSOR;
(f) the LICENSEE shall immediately assign to the LICENSOR, at the
LICENSOR's option, all Listing Agreements granted or entered into by
the LICENSEE pursuant to this Agreement, and shall provide to the
LICENSOR copies of all such agreements and any related contact
information;
(g) the LICENSEE shall cease to use the Regional Website and the
Regional Database and the LICENSOR shall assume the operation of all
matters related to the
17
provision of the TalMatch Service in the Territory, and the LICENSEE
shall assign, transfer or deliver all necessary property,
agreements, arrangements and materials to enable the LICENSOR to
continue the provision of the TalMatch Service in the Territory
without interruption;
(h) the LICENSOR shall immediately discontinue the LICENSEE's access to
the Regional Website, Regional Database, TalMatch Network, TalMatch
System, TalMatch Service and any of the elements thereof.
7.17 COMPLETE AGREEMENT
This Agreement and any schedule attached to it, and initialled or signed
by both parties, contains the complete and exclusive statement of the agreement
between the parties and supersedes all prior and contemporaneous agreements,
understandings, proposals, negotiations, representations or warranties of any
kind, whether oral or written. No oral or written representation that is not
expressly contained in this Agreement is binding on either party.
7.18 AMENDMENTS, GOVERNING LANGUAGE
This Agreement cannot be amended or modified, other than by a change made
in writing, dated and executed by both parties. Time shall be the essence of
this Agreement. In the event of any variance between different language versions
of this Agreement, this English-language version shall prevail.
7.19 INTELLECTUAL PROPERTY CONVENANTS
Covenants concerning Intellectual Property are to be construed as being
independent of other provisions in this Agreement.
7.20 SEVERABILITY
All sections, terms and provisions of this Agreement are severable and the
unenforceability or invalidity of any of these parts of this Agreement shall not
affect the validity or enforceability of any other part of this Agreement. If
any court of competent jurisdiction determines that any provision in this
Agreement is invalid or enforceable, it is the intention of the parties that the
court either partially enforces such provision to the extent enforceable or
modify such provision so as to render it valid or enforceable.
7.21 INDEPENDENT CONTRACTORS
The LICENSOR and the LICENSEE are independent contractors, each being in
full control of its own business. This Agreement does not establish a joint
venture or partnership between the LICENSOR and LICENSEE. Neither party is the
agent of the other and neither has the authority to bind the other in respect of
any third party. The LICENSEE will under no circumstances hold itself out to be
a partner, employee, franchisee, legal representative, servant or agent of the
LICENSOR.
7.22 NOTICES
All required notices, or notices which may be provided in accordance with
this Agreement, shall be in writing and shall be duly provided for if the notice
is remitted to its addresses by courier, registered mail or facsimile, to the
address below:
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(a) in the case of the LICENSOR:
▇▇▇▇▇▇▇ Technologies, Inc.
▇▇ ▇▇.▇▇▇▇▇ ▇▇▇, ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(with a copy to: ▇▇▇▇▇▇▇▇ Partnership
30 St Clair Ave. W.
Suite 1108
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇. ▇.▇. ▇▇▇▇▇▇▇)
(b) in the case of the LICENSEE:
Nework Solution Inc.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇-▇▇, ▇▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
135-090
Attention: ▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇-▇▇▇▇
Or such other address as the party, which is to receive the notice,
indicated to the party providing the notice, in the manner provided
for in the present article. Every notice delivered in the manner
provided for herein shall be deemed to have been received when
delivered, in the case of delivery by courier; the business day
after the date telecopied; or the fifth business day following the
date of mailing, if sent by mail, as the case may be.
7.23 GOVERNING LAW
This Agreement shall be interpreted under and governed by the laws of the
Province of Ontario and the applicable federal laws of Canada, without reference
to any conflicts of laws principles. The parties hereby attorn to the
non-exclusive jurisdiction of the Ontario Courts.
7.24 VIENNA SALES CONVENTION EXEMPTION
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The parties hereto agree that the application of the UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS to this Agreement
is strictly excluded.
7.25 NON-COMPETITION
The LICENSEE convenants that upon the expiry or termination of this
Agreement, it will not engage in the use or provision of the TalMatch Network,
TalMatch Service, TalMatch System or any of the elements thereof, or of any
similar method or system, for a period of three years after the date of such
expiry or termination.
7.26 NON-SOLICITATION
The LICENSEE covenants and agrees not to solicit any employee or officer
of the LICENSOR during the Term or for a period of three years thereafter,
without the prior written consent of the LICENSOR. Should the LICENSEE breach
this provision, it shall pay to the LICENSOR as liquidated damages an amount
equal to two years of such employee's gross compensation, including benefits.
7.27 FURTHER ASSURANCES
The parties agree to sign such other instruments, and to do and perform
all other acts, which may be necessary and desirable in order to give full
effect to this Agreement.
7.28 SURVIVAL
Those provisions which, by their nature survive or are intended to or
expressly designated by the parties to survive the termination or expiry of this
Agreement shall do so, and without limitation, provisions concerning
Confidential Information, Intellectual Property, Termination, Indemnity and
Arbitration shall expressly so survive.
THE LICENSEE ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO TAKE LEGAL ADVICE
CONCERNING THIS AGREMENT, READ AND UNDERSTOOD IT, AND HEREBY AGREES TO BE BOUND
BY ITS TERMS.
THE SIGNATURES BELOW confirm that this Agreement has been made by the LICENSOR
and the LICENSEE as of the date first written above.
--------------------------------------- --------------------------------------
▇▇▇▇▇▇▇ TECHNOLOGIES INC. NEWORK SOLUTION INC.
(LICENSOR) (LICENSEE)
Per: /S/ Per: /S/
-------------------------------- --------------------------------
Name: Name:
------------------------------- -------------------------------
Position: Position:
--------------------------- ---------------------------
I have authority to bind the company. I have authority to bind the company
--------------------------------------- --------------------------------------
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SCHEDULE "A"
LICENSED MATERIALS
All TalMatch Network application related materials, whether in hard copy,
digital or analog format such as:
o Training materials
o Advertising, Presentations and Marketing Materials
o Domains and Trademarks
o User and Operations Manuals
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SCHEDULE "B"
TERRITORY & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇)
LANGUAGE
Korean
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SCHEDULE "C"
TRADE-MARKS AND DOMAIN NAMES
TRADE MARKS
TALWARE TECHNOLOGIES(TM)
TALMATCH NETWORK(TM)
TALENT FOR THE NEW ECONOMY(TM)
DOMAIN NAMES
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇
This schedule may be amended by the Licensor from time to time.
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SCHEDULE "D"
LICENSE FEES AND ROYALTIES
The LICENSEE shall pay to the LICENSOR:
(a) a License Fee of $200,000 payable in accordance with Schedule H;
(b) all taxes, duties and tariffs and other government charges payable
for this License;
(c) Annual Minimum Royalties $0 (nil)
(d) Royalties payable $0 (nil)
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SCHEDULE E
ADDITIONAL LICENSE
In further consideration of the License Fees paid under this Agreement by the
LICENSEE, LICENSOR agrees to grant to LICENSEE;
o A License (the "TalTrack License") to use its business-to-consumer
employment recruiting application, the TalTrack System, together
with all upgrades and improvements made thereto, in the Territory
for the Term. A further License agreement will be executed by the
parties in respect of the TalTrack License at a later date, but no
further License fees will be due in respect thereof.
o A License to use its corporate talent management application,
together with all upgrades and improvements made thereto, in the
Territory for the Term, for the purpose of selling access to this
application to corporate customers in the Territory for the Term. A
further License agreement will be executed by the parties in respect
of this License at a later date, but no further License fees will be
due in respect thereof.
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SCHEDULE F
LITIGATION AGAINST LICENSEE
26
SCHEDULE G
TRAINING, IMPLEMENTATION & DEPLOYMENT TIMETABLE
1 The LICENSOR shall provide to the LICENSEE as soon as reasonably possible
after the Effective Date of this Agreement for translation and adaptation:
(iv) the English version of the Regional Website html pages;
(v) the English version of the Attributes;
(vi) the English version of the ▇▇▇▇▇▇▇ Help Desk Application data
dictionary;
(vii) any other Licensed Materials which require translation and
adaptation for use on the Regional Website.
2 Within thirty (30) Business Days of receipt of the materials set out
above, LICENSEE shall submit to LICENSOR all translated and adapted
materials for integration into Regional Website.
3 Within thirty (30) Business Days after receipt of acceptable translated
and adapted materials from LICENSEE, LICENSOR shall provide access to the
TalMatch System on the Regional Website. LICENSEE acknowledges and
confirms that all intellectual property rights in such translated or
adapted materials shall be the exclusive property of LICENSOR.
4 As part of the implementation process of the Regional Website in the local
language, thirty days prior to the go-live date of the Regional Website,
the LICENSEE may, at its option and sole expense, send appropriate
trainees to LICENSOR's office for training. Alternatively, or in addition
to the above, the LICENSEE may request that a training team be sent from
the LICENSOR's office to the LICENSEE's premises, at the LICENSEE's sole
expense.
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SCHEDULE "H"
PAYMENT METHOD
The US$200,000 License Fee shall be paid by the LICENSEE as follows:
US$60,000 to be paid July 13, 2001
The balance of the License Fee to be paid over a period of twelve (12) months in
equal monthly payments of US$11,667 (eleven thousand six hundred and sixty seven
US dollars) commencing August 1, 2001.
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