EXHIBIT 10.10
DEVELOPMENT AND LICENSE AGREEMENT
THIS AGREEMENT is entered into as of March 31, 1997 by and between
i-Labs, Ltd, a company formed under the laws of Israel ("I-Labs"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
Recitals
A. I-Labs designs and develops websites on the Internet, and is the owner
of certain proprietary technology and software programs designed for use
in on-line service to the Internet; and
▇. ▇▇▇▇▇▇▇▇▇ has requested that I-Labs create a website which would
incorporate I-Labs's proprietary technology and software programs.
NOW, THEREFORE, the parties mutually agree as follows:
1. Development Services.
1.1 Development Services. Subject to the terms and conditions of this
Agreement, I-Labs agrees to perform all design and development services
necessary to produce and install a website on the Internet which meets
all of the specifications as mutually agreed by the parties (the
"Website").
1.2 Term. This Agreement shall become effective as of the date hereof and
shall remain in force until I-Labs's services have been materially
competed unless terminated earlier pursuant to Section 10 below.
2. Issuance of Common Stock. In consideration for the development services
provided by I-Labs under this Agreement, ▇▇▇▇▇▇▇▇▇ shall transfer to
I-Labs 100,000 shares of Common Stock in a corporation which will be
formed by ▇▇▇▇▇▇▇▇▇ and others in order to exploit the Website.
3. Independent Contractor.
I-Labs is an independent contractor of ▇▇▇▇▇▇▇▇▇ and not his employee,
and no employment relationship is created by this Agreement. I-Labs has
the exclusive right to select its own employees and agents who will be
under the exclusive supervision and control of I-Labs and who will not
be employees or agents of ▇▇▇▇▇▇▇▇▇.
4. Confidential Information.
Each party to this Agreement acknowledges that certain information that
it receives from the other party will constitute the confidential and
proprietary information of the disclosing party, and agrees that it will
take all reasonable steps to preserve the strict confidentiality of any
information given to them by any other party. The receiving party will
safeguard the confidential information with the same degree of care
which it uses to protect its own confidential information. For purposes
of this Agreement, confidential information shall not include any
information to the extent that such information (a) is presently, or
subsequently becomes, generally available to the public without a
wrongful act of the disclosing party; (b) is information which the other
party agrees in writing may be disclosed without restriction; (c) is
already known to the disclosing party; (d) is developed independently by
the disclosing party; (e) is furnished by the other party to a third
party without restriction on disclosure; or (f) is disclosed pursuant to
a court order.
5. Ownership of Work Product.
5.1 Work Product. All Work Product shall be the property of ▇▇▇▇▇▇▇▇▇, and
I-Labs agrees to assign and does hereby expressly assign to ▇▇▇▇▇▇▇▇▇
all right, title and interest in and to the Work Product. "Work Product"
shall mean all work product created by I-Labs, on behalf of I-Labs for
the benefit of ▇▇▇▇▇▇▇▇▇ under the terms of this Agreement, including,
but not limited to, all intangible intellectual, proprietary and
industrial property rights, and all tangible embodiments thereof
wherever located, including but not limited to the following: (i) all
trademarks, trade names, service marks, services names or logs,
including all registrations and applications therefor; (ii) all
copyrights, moral rights, and other rights in works or authorship,
including all registrations and applications therefor; (iii) all patents
and patent applications, patentable ideas, inventions and innovations;
(iv) all know-how and trade secrets; (v) all design and code
documentation, methodologies, processes, design information, formulae,
engineering specifications, technical data, testing procedures, drawings
and techniques and other proprietary information and material of any
kind; (vi) all software programs in source code, object code and
executable format, including testing software and software tools; (vii)
all documentation, records, databases (including current and historical
databases), designs, codes, algorithms, research records, test
information, market surveys, and marketing know-how; and (viii) any and
all translations of any of the foregoing.
5.2 Preexisting Work. Stenhart acknowledges that I-Labs may own certain
intellectual property which I-Labs wishes to incorporate in the Website
(the "Preexisting Work"). Preexisting Work shall include, but shall not
be limited to, HTML templates, certain C and perl code, site support
methodologies and site support methodologies documentation. ▇▇▇▇▇▇▇▇▇
acknowledges that the Preexisting Work is the sole property of I-Labs.
Therefore, except as provided herein, I-Labs hereby grants to ▇▇▇▇▇▇▇▇▇
a royalty-free, irrevocable, worldwide, nonexclusive, transferable
license to use the Preexisting Work in the Website.
6. I-Labs's Representations and Warranties.
I-Labs hereby represents, warrants and covenants to ▇▇▇▇▇▇▇▇▇ as
follows:
6.1 Ownership. I-Labs is the legal and equitable owner of the Preexisting
Work, or holds valid licenses to certain Preexisting Work, and has no
knowledge that the Website is subject to any third party intellectual
property infringement claims or allegations.
6.2 Design Defects. I-Labs warrants that the Website will conform to its
design specifications in all material respects for a period extending
ninety (90) days after its installation on the Internet.
7. Indemnification.
I-Labs shall at all times during and after the term of this Agreement
indemnify, defend and hold ▇▇▇▇▇▇▇▇▇, and his assignees and transferees
harmless from any and all claims, damages, suits or
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proceedings brought against it based upon a claim that the Website
infringes upon any patent, copyright or trade secret of any third
party. ▇▇▇▇▇▇▇▇▇ and I-Labs shall promptly notify each other of any
possible infringements, imitations or unauthorized possession,
knowledge or use of the Website others of which they become aware.
▇▇▇▇▇▇▇▇▇ or his assignees and transferees shall have the right, at
its expense, to bring any action on account of such infringements,
imitations or unauthorized possessions, knowledge or use of the
Website, and I-Labs shall cooperate with ▇▇▇▇▇▇▇▇▇, or his assignees
and transferees, as they may request, in connection with any such
action. ▇▇▇▇▇▇▇▇▇ or and his assignees and transferees shall keep the
entire proceeds of any such action. If ▇▇▇▇▇▇▇▇▇ or and his assignees
and transferees do not bring such action, I-Labs shall have the right,
at its expense and in its own name, to do so.
8. Limitation of Liability; Remedies.
8.1 Limited Liability. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 7 HEREIN, I-LABS MAKES NO OTHER REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, AND HEREBY DISCLAIMS,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. THE WARRANTY STATED ABOVE IS A LIMITED WARRANTY
AND IT IS THE ONLY WARRANTY MADE BY I-LABS. I-LABS DOES NOT MAKE, AND
THE COMPANY HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES EXPRESS OR
IMPLIED. I-LABS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS BY
EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.2 Remedies. If the Website shall prove to have design defects
attributable to I-Labs, ▇▇▇▇▇▇▇▇▇'▇ remedy shall be to correct said
defect. If I-Labs is unable correct a defect within 30 days of
notification by ▇▇▇▇▇▇▇▇▇ of such defect, the Company may terminate
this Agreement in accordance to Section 9 with no further obligation
or liability on the part of I-Labs.
8.3 No Other Remedies. The remedies set forth in this Agreement are
▇▇▇▇▇▇▇▇▇'▇ sole and exclusive remedies for breach of warranty, and no
party shall be liable to any other party for any incidental,
consequential, special or punitive damages of any kind or nature,
arising out of or in connection with the use or performance of the
Website.
9. Termination.
9.1 Termination on Notice. Either party may terminate this Agreement at
any time upon thirty (30) days written notice.
9.2 Termination for Default. Should either party default in the
performance of this agreement, or materially breach any of its
provisions, the nonbreaching party may terminate this Agreement
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by giving the breaching party written notice. Termination shall be
effective 30 days from receipt of the notice unless the default has
been cured within the 30 day period.
9.3 Effects of Termination. Termination of this Agreement for any reason
shall be without prejudice to the rights and obligations of the
parties provided in Sections 4, 5, 6, 7, 8, and 10 hereof.
10. General Provisions
10.1 Force Majeure. If the performance of this Agreement or any obligations
hereunder is prevented, restricted or interfered with by reason of
fire or other casualty or accident, strikes or labor disputes, war or
other violence, any law, order, proclamation, regulations, ordinance,
demand or requirement of any government agency, or any other similar
act or condition beyond the reasonable control of the parties hereto,
the party so affected upon giving prompt notice to the other parties
will be excused from such performance during such prevention,
restriction or interference.
10.2 Notices. Notice by any party under this Agreement will be in writing
and personally delivered or given by registered mail, overnight
courier, or telecopy confirmed by first-class mail, addressed to the
other party at its address given herein (or at such other address as
may be communicated to the notifying party in writing) and will be
deemed to have been given when received.
10.3 Counterparts. This Agreement may be executed in counterparts, each of
which will constitute an original instrument and all of which together
will constitute one and the same instrument.
10.4 Arbitration. Any dispute or claim arising out of or in connection with
this Agreement will be finally settled by binding arbitration in the
State of California under the substantive laws of California and in
accordance with the Rules of the American Arbitration Association by
one arbitrator appointed in accordance with those rules. Judgment on
the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for
injunctive relief without breach of this arbitration provision.
10.5 Further Assurances. The parties will each perform such acts, executed
and deliver such instruments and documents, and do all such other
things as may be reasonably necessary to accomplish the transactions
contemplated by this Agreement.
10.6 No Waiver. No waiver of any term or condition of this Agreement will
be valid or binding on a party unless the same has been mutually
assented to in writing by all parties. The failure of a party to
enforce at any time any of the provisions of this Agreement, or the
failure to require at any time performance by one or both of the other
parties of any of the provisions of this Agreement, will in no way be
construed to be a present or future waiver of such provisions, nor in
any way affect the ability of a party to enforce each and every such
provision thereafter.
10.7 Entire Agreement. The terms and conditions contained in this Agreement
constitute the entire agreement between the parties with respect to
the subject matter thereof and supersede all previous agreements and
understandings, whether oral or written. No agreement or
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understanding varying or extending the terms and conditions of this
Agreement will be binding upon any party unless in a written document
signed by the party to be bound thereby.
10.8 Assignment. At his sole discretion, ▇▇▇▇▇▇▇▇▇ may assign or delegate
this Agreement or any of his rights or duties under this Agreement
without the prior written consent of I-Labs to any person, entity.
Subject to the foregoing, this Agreement will inure to the benefit of,
and will be binding upon, the parties and their respective successors
and assigns.
10.9 No Agency. The parties are independent contractors with respect to
each other, and not agents of each other, and no party will have any
authority to bind any other party in any manner whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written by their duly authorized representatives.
I-Labs, Ltd.
a company formed under the laws of Israel
By /s/
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Title C.O.O.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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