TECHNOLOGY LICENSE AGREEMENT
Between:
Kyxpyx Technologies Inc.
(hereinafter referred to as "Kyxpyx")
And:
Global Internet Communications Inc.
(hereinafter referred to as "GIC")
This Technology License (the "Agreement") is entered into and effective as of
this 10th day of August, 2000 (the "Effective Date") between Kyxpyx
Technologies, Inc., a British Columbia, Canada, corporation, with its
principal place of business at ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇, ("Kyxpyx") and Global Internet Communications Inc., a British
Columbia, Canada, corporation, with its principal place of business at 2305 -
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, ("GIC").
RECITALS
WHEREAS Kyxpyx wishes to license that part of its streaming video technology
for the purpose of allowing GIC to market the Kyxpyx Internet streaming video
to the pharmaceutical industry; and
WHEREAS GIC wishes to market and offer the Kyxpyx 's streaming video
technology to the pharmaceutical industry;
NOW THEREFORE, for good and valuable consideration, which is acknowledged
received by the respective parties, Kyxpyx and GIC enter into this Agreement
on the following terms and conditions:
1.0 Definitions
1.1 "Derivative Work(s)" means any revision, modification, translation,
abridgment, condensation, expansion, collection, compilation or other form in
which an existing work may be recast, transformed, ported or adapted and which
is a "derivative work" under Canadian or U.S. copyright law.
1.2 "Independent Work(s)" means any work, or portion thereof, that is
independently developed and performs the same or similar functions as certain
technology, but is not a Derivative Work of such technology.
1.3 "Intellectual Property Rights" means all intellectual property rights
worldwide arising under statutory or common law, and whether or not perfected,
including, without limitation, all (i) patents and patent applications owned
or licensable by a party hereto ("Patent Rights"); (ii) rights associated with
works of authorship including copyrights, copyright applications, copyright
registrations; (iii) rights relating to the protection of trade secrets and
confidential information; (iv) any right analogous to those set forth in this
Section 1.7 and any other proprietary rights relating to intangible property
(other than trademark, trade dress, or service ▇▇▇▇ rights); and (v)
divisions, continuations, renewals, reissues and extensions of the foregoing
(as and to the extent applicable) now existing, hereafter filed, issued or
acquired.
1.4 "ISV" means the Internet streaming video service" which is GIC's service
to provide real time visual/video and audio streaming between two or more
parties and between one party and a location or an environment.
1.5 "Subsidiary" means a corporation, partnership, limited liability company,
unincorporated association, or other entity (a) greater than 50% of whose
combined voting power of the total issued and outstanding voting stock
(representing the right to vote for the election of directors or other
management authority) is, now or hereafter, owned or controlled, directly or
indirectly, by a party hereto (a "Parent"), and is actually controlled or
managed by such Parent, or (b) which does not have outstanding shares or
securities, as may be the case in a partnership or limited liability company,
but greater than 50% of whose ownership as equity interest is, now or
hereafter, owned or controlled, directly or indirectly, by a Parent and is
actually managed or controlled by such Parent.
1.6 " Kyxpyx" means Kyxpyx Technologies, Inc..
1.7 "GIC" means Global Internet Communications Inc..
1.8 "Technology" means the Kyxpyx Internet streaming video technology.
1.9 "Term" shall mean the duration of this Agreement.
1.10 "Upgrades" means any new releases and versions of the ISV by Kyxpyx which
include, but are not limited to, bug fixes, modifications, variations or
enhancements of the ISV and which are delivered to GIC pursuant to the terms
of this Agreement.
2.0 LICENSE GRANTS
2.1 Source Code and Development License to Technology.
a. Kyxpyx hereby grants to GIC, and GIC hereby accepts from Kyxpyx, an
irrevocable (without regard to any termination or expiration of this
Agreement, except as provided in Section 11.1), worldwide, exclusive,
non-transferable license (except has herein provided), under the Intellectual
Property Rights of Kyxpyx, to use, view and display the ISV for the sole
purposes of developing and marketing the ISV worldwide to the pharmaceutical
industry;
b. Kyxpyx does not grant to GIC a perpetual and irrevocable (without regard to
any termination or expiration of this Agreement, except as provided in Section
11.1), worldwide, non-exclusive, non-transferable license (except has herein
provided), under the Intellectual Property Rights of Kyxpyx, to sublicense and
distribute the ISV to any third party.
2.2 Branding and Trademarks.
GIC shall be able to, at its sole discretion, determine, create and develop
any branding of the ISV and register any trademarks to be associated with the
ISV as it relates to the marketing of the ISV to the pharmaceutical industry.
2.3 Value Adds
The parties understand and agree that during the Term, GIC may, at its sole
discretion, create and develop value added products and services which will
compliment the ISV.
2.4 Ownership
a. Ownership by Kyxpyx.
Kyxpyx retains all right, title and interest in and to the Technology,
Documentation, Upgrades, Kyxpyx -authored Derivative Works, Kyxpyx -authored
Independent Works and Kyxpyx bug fixes and associated Intellectual Property
Rights.
b. Ownership by GIC.
GIC retains all right, title and interest in and to GIC-authored Derivative
Works of the ISV, value added products and services, GIC-authored Independent
Works of the ISV, subject to Kyxpyx's underlying rights in the ISV and
associated Intellectual Property Rights.
▇. ▇▇▇▇▇ of Rights.
c.1 Kyxpyx grants GIC a worldwide exclusive non-transferable, non-assignable
(except has herein provided) rights set forth in the Agreement subject to the
following terms and conditions:
a. GIC agrees to obtain Kyxpyx's written agreement prior to any use of
the ISV not set forth in this Agreement.
b. GIC agrees to promptly return to Kyxpyx or promptly destroy ISV in the
event there is a material breach of this Agreement and all grace periods
have expired.
c. The rights granted to GIC by Kyxpyx are limited only insofar as they
remain in tact pursuant to this Agreement as long as this Agreement
remains in force. Any material breach followed by the expiration of any
grace periods shall cause all rights to use the ISV shall revert back to
Kyxpyx.
c.2. Kyxpyx warrants that it has the authority and right to grant the limited
license described in this Agreement to GIC.
2.6 Contractors.
GIC may retain third parties to furnish services to it in connection with
GIC's creation and development of ISV related products and services as it
relates to marketing the ISV to the pharmaceutical industry; and provided,
that such third parties undertake obligations of confidentiality by executing
a Non-Disclosure Agreement respecting such work and shall use such work only
on behalf of GIC.
3.0 SUPPORT AND UPGRADES
3.1 During the Term, Kyxpyx may provide to GIC any Upgrades to the ISV.
Kyxpyx shall promptly notify GIC of the nature of any Upgrades or other
planned modifications to the Technology that affect the ISV directly or
indirectly.
3.2 During the Term, Kyxpyx shall promptly provide to GIC all upgrades,
versions and translations of the Documentation as it relates to the ISV when
such upgrades, versions and translations of the Documentation are reasonably
available.
4.0 PAYMENT
4.1 License Fees.
In consideration of the rights granted GIC in this Agreement, GIC shall pay
Kyxpyx a royalty as follows:
a. The rights granted under this Agreement is limited to three (3) years
from the date of execution of this Agreement, with an option by GIC to
extend for another three years. At the end of the second three year
periods, this Agreement terminates unless a new agreement is negotiated
and entered into by the parties;
b. GIC shall pay to Kyxpyx a royalty on the following sliding scale:
(a) five percent (5%) of net income after tax on the first $1,000,000 (one
million dollars);
(b) three percent (3%) of net income after tax on the following $3,000,000
(three million dollars);
(c) two percent (2%) of net income after tax on the following $5,000,000
(five million dollars);
(d) one percent (1%) of net income after tax above $9,000,000 (nine
million dollars).
d. The payment in 5.1(b) shall be received by Kyxpyx from GIC at the end
of each quarter and in the event payment is not forthcoming at that time,
GIC has a three (3) week grace period in which to make said payment.
4.2 Support Fees.
GIC may be required to pay fees for Upgrades. However, those fees shall be
negotiated and contracted for when Upgrades are contemplated or completed
4.3 Taxes.
All payments required by this Agreement shall be made in Canadian dollars.
Each party shall bear its own federal income tax and province and state income
taxes in connection with the transactions described in this Agreement.
5.0 ADDITIONAL AGREEMENT OF PARTIES
5.1 Notices.
GIC shall not remove any copyright notices, trademark notices, patent notices
or other proprietary legends of Kyxpyx contained on or in the Technology, the
ISV or their respective Documentation.
5.2 End User Support.
a. If GIC determines that a problem or problems identified by GIC or an end
user customer is the result of the Technology, the ISV or an Upgrade, GIC may
contact Kyxpyx for advice and assistance. Kyxpyx shall use reasonable efforts
to provide an oral or written solution or solutions to the problem(s) that
includes such detail as will permit one of GIC's technicians to develop and
implement a complete solution or set of solutions to fix the problem(s).
GIC is not authorized to make any representation or warranty on behalf of
Kyxpyx to its end users or third parties. GIC shall provide technical and
maintenance support service for its end user customers in accordance with what
will be GIC's standard support practices. Kyxpyx shall not be responsible for
providing any support to GIC's customer service representatives or end users.
5.3 Marketing.
The parties are not required to cooperate on mutually agreeable marketing and
promotional activities relating to the ISV. All press announcements concerning
this Agreement and the planned first use of the ISV shall be at the sole
discretion of GIC.
5.4 Use of GIC's Name.
GIC hereby authorizes Kyxpyx to use GIC's name in press announcements,
advertising and marketing prepared by or on behalf of Kyxpyx for the
Technology, provided that GIC will have the right to prior approval or
disapproval the use of its name in all cases.
5.5 Patent Non-Assertion.
a. Non-Assertion by GIC.
(i) Kyxpyx agrees that it shall not commence any action against GIC for
infringement by the use, offer for use of the ISV, not including any Upgrades
thereto. In the event that GIC develops an independent work, an Upgrade
independent of any hardware or software developed by Kyxpyx, Kyxpyx shall not
commence any action against GIC for infringement of the Kyxpyx copyright or
patent of the independent work.
(ii) If Kyxpyx notifies GIC in writing of a patent issue pursuant to Section
5.5(a)(i), the parties shall enter into binding arbitration to decide the
issue. The parties further agree that any license established through such
arbitration shall include a termination provision whereby the license may be
terminated by GIC if Kyxpyx makes a claim or commences any action against GIC
or its subsidiary for infringement of the Intellectual Property Rights of the
Kyxpyx Technology or Upgrades. If no patent license agreement is established,
GIC agrees that it will take no action against Kyxpyx or Kyxpyx 's
subsidiaries for twelve (12) months after it notifies Kyxpyx pursuant to
Section 5.5(a)(i). For a given Upgrade, if no patent license agreement is
established, GIC will not be granted rights under Section 2, except to the
extent necessary to meet the obligations established by other Sections of this
Agreement.
6.0 REPRESENTATIONS AND WARRANTIES; DISCLAIMER
6.1 Representations and Warranties of Kyxpyx.
Kyxpyx hereby represents and warrants that:
(a) Kyxpyx Technologies Inc. is a corporation in good standing that is
incorporated in the Province of British Columbia.
(b) Kyxpyx has authorized the person who has signed this Agreement for Kyxpyx
to execute and deliver this Agreement to GIC on behalf of Kyxpyx;
(c) it has not previously granted and will not grant any rights in the
Technology as it relates to the ISV to any third party that are inconsistent
with the rights granted to GIC in this Agreement;
(d) the ISV will be free from defects in materials and workmanship for a
period of seven hundred and twenty (720) days after delivery. Kyxpyx's sole
liability with respect to breach of this warranty is to fix the defective
parts of ISV. Except as expressly provided in this Section 6.1(c), Kyxpyx
licenses the ISV and Documentation to GIC on an "AS IS" basis.
6.2 Representations and Warranties of GIC.
GIC hereby represents and warrants that:
(a) Global Internet Communications Inc. is a corporation in good standing that
is incorporated in the Province of British Columbia.
(b) GIC has authorized the person who has signed this Agreement for GIC to
execute and deliver this Agreement to GIC on behalf of GIC;
(c) it has not previously granted and will not grant any rights in the ISV to
any third party that are inconsistent with the rights granted to Kyxpyx herein;
6.3 General Disclaimer.
EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED REPRESENTATIONS
AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
6.4 Limitation.
The warranties set forth in this Article 6.0 are expressly subject to Section
10.0 (Limitation of Liability).
7.0 CONFIDENTIAL INFORMATION
7.1 Confidential Information.
For the purposes of this Agreement, "Confidential Information" means the
Source Code form of the Technology and ISV, Kyxpyx -authored Derivative Works
of the Technology and ISV, the GIC-authored Independent Works or Upgrades of
the Technology, and information that relates to (i) Kyxpyx hardware or
software, (ii) GIC hardware or software, (iii) the customer lists, business
plans and related information of either party, and (iv) any other technical or
business information of the parties, including the terms and conditions of
this Agreement. In all cases, information which a party wishes to be treated
as "Confidential Information" shall be marked as "confidential" or
"proprietary" (or with words of similar import) in writing by the disclosing
party on any tangible manifestation of the information transmitted in
connection with the disclosure, or, if disclosed orally, designated as
"confidential" or "proprietary" (or with words of similar import) at the time
of disclosure or within a reasonable time thereafter unless the circumstances
of the disclosure indicate that such disclosure is intended by a party to be
confidential.
7.2 Preservation of Confidentiality.
The parties agree that all disclosures of Confidential Information (as defined
under Section 7.1 above) shall be governed by and treated in accordance with
the terms of the Confidential Disclosure Agreement (the "CDA") attached hereto
as Exhibit "B" and incorporated herein by reference, modified as follows:
(a) The definition of "Confidential Information" shall be as set forth in
Section 7.1 above notwithstanding any definition set forth in the CDA;
(b) The use of Confidential Information shall be limited to the scope of the
license provided in this Agreement;
(c) the obligations of confidentiality expressed in the CDA shall extend three
(3) years beyond termination or expiration of this Agreement, except with
respect to Source Code form of the Technology and the ISV, which shall be held
confidential in perpetuity; and
(d) the term of the CDA shall extend to coincide with the Term for purposes of
disclosures of Confidential Information for purposes of this Agreement.
8.0 INDEPENDENT DEVELOPMENT
Notwithstanding any other provision of this Agreement, GIC shall have no
obligation to market, sell, license or otherwise distribute the Technology or
Derivative Works thereof, either alone or in any product or service and,
except as provided in Section 7.0, nothing in this Agreement shall be
construed as restricting GIC's ability to acquire, license, develop,
manufacture or distribute technology that is similar to the Technology of the
ISV and performs the same or similar functions as the Technology and the ISV,
or to market and sell such similar technology in addition to, or in lieu of,
the Technology and ISV. GIC agrees that the terms stated in this Section 8.2
does not constitute a license grant by Kyxpyx to GIC of any Kyxpyx
Intellectual Property Rights and that GIC's license rights to are set forth in
other Sections of this Agreement.
9.0 INDEMNIFICATION
9.1 Indemnification by Kyxpyx.
a. KYXPYX shall, at its expense and GIC's request, defend any claim or action
brought against GIC and GIC's affiliates, directors, officers, employees,
agents and independent contractors, that arises from or is related to any
claim that (a) the ISV infringes any copyrights or trade secrets; and (b)
Kyxpyx's Independent Works and Derivative Works of the ISV that infringes any
copyrights or trade secrets of GIC; and Kyxpyx will indemnify and hold GIC
harmless from and against any costs, damages and fees reasonably incurred by
GIC, including but not limited to fees of attorneys and other professionals,
that are attributable to such claim. In the event of a claim against GIC by a
third party related to the ISV, Kyxpyx shall promptly elect and provide notice
to GIC that Kyxpyx will indemnify and defend GIC with respect to such claim or
decline to provide such defense and indemnity.
b. GIC shall have the right to employ separate counsel at GIC's expense and
participate in the defense of any claim or action. Kyxpyx shall reimburse GIC
upon demand for any payments made or loss suffered by it at any time after the
date hereof, based upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims, demands, or
actions, in respect to any damages related to any claim or action under this
Section 9.1.
c. Kyxpyx may not settle any claim or action under this Section 9.1 on GIC's
behalf without first obtaining GIC's written permission, which permission will
not be unreasonably withheld. In the event GIC and Kyxpyx agree to settle a
claim or action, Kyxpyx agrees not to publicize the settlement without first
obtaining GIC's written permission, which permission will not be unreasonably
withheld.
d. Notwithstanding the foregoing, should the ISV or portion thereof be held to
constitute an infringement or use as contemplated by this Agreement be
enjoined or be threatened to be enjoined, Kyxpyx shall promptly notify GIC and
immediately, at Kyxpyx's expense: (i) procure for GIC the right to continue
use the ISV or portion thereof, as applicable, as licensed in this Agreement;
or (ii) replace or modify the ISV or portion thereof with a version that is
non-infringing, provided that the replacement or modified version satisfies
all applicable needs of GIC to successfully market ISV. If (i) or (ii) are not
available to Kyxpyx, in addition to any damages or expenses reimbursed under
this Section 9.1, Kyxpyx shall refund to GIC all amounts paid to Kyxpyx by GIC
under this Agreement.
9.2 Indemnification by GIC.
a. GIC shall, at its expense and Kyxpyx's request, defend any claim or action
brought against Kyxpyx and Kyxpyx's affiliates, directors, officers,
employees, agents and independent contractors, that arises from use of the ISV
and independent works as Upgrades. And GIC will indemnify and hold Kyxpyx
harmless from and against any costs, damages and fees reasonably incurred by
Kyxpyx, including but not limited to fees of attorneys and other
professionals, that are attributable to such claim. Kyxpyx shall: (i) provide
GIC reasonably prompt notice in writing of any such claim or action and permit
GIC, through counsel mutually acceptable to GIC and Kyxpyx, to answer and
defend such claim or action; and (ii) provide GIC information, assistance and
authority, at GIC's expense, to help GIC to defend such claim or action. GIC
will not be responsible for any settlement made by Kyxpyx without GIC's
written permission, which permission will not be unreasonably withheld.
b. Kyxpyx shall have the right to employ separate counsel at Kyxpyx's expense
and participate in the defense of any claim or action. GIC shall reimburse
Kyxpyx upon demand for any payments made or loss suffered by it at any time
after the date hereof, based upon the judgment of any court of competent
jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands, or actions, in respect to any damages related to any claim or action
under this Section 9.2.
c. GIC may not settle any claim or action under this Section 9.2 on Kyxpyx 's
behalf without first obtaining Kyxpyx 's written permission, which permission
will not be unreasonably withheld. In the event GIC and Kyxpyx agree to settle
a claim or action, GIC agrees not to publicize the settlement without first
obtaining Kyxpyx 's written permission, which permission will not be
unreasonably withheld.
9.3 THIS ARTICLE STATES THE ENTIRE LIABILITY OF THE PARTIES WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE ISV. THE PARTIES SHALL
HAVE NO LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
OF EACH OTHER AND ANY THIRD PARTY AS A RESULT OF USE OR LICENSE OF THE ISV
OTHER THAN AS STATED HEREIN.
10.0 LIMITATION OF LIABILITY
10.1 Limitation of Liability.
Except for express undertakings to indemnify under this Agreement:
a. Each party's liability to the other for claims relating to this Agreement,
whether for breach or in tort, shall be limited to the license fees paid by
GIC for the ISV; and
b. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING OUT
OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY, EVEN IF THE EXCLUSIVE REMEDIES
PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF
EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH
DAMAGES. FURTHER, LIABILITY FOR SUCH DAMAGE SHALL BE EXCLUDED, EVEN IF THE
EXCLUSIVE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE.
c. The provisions of this Section 10.0 allocate the risks under this Agreement
between Kyxpyx and GIC and the parties have relied upon the limitations set
forth herein in determining whether to enter into this Agreement.
11.0 DEFAULT PROVISIONS
11.1 Default and Remedies; Termination.
a. GIC agrees that if, at any time during the Term and for a period of ten
(10) years thereafter, GIC or any of its officers, directors or agents
willfully and intentionally breaches a material provision of this Agreement
and GIC fails to cure such breach within a period of one (1) month after the
date that Kyxpyx provides GIC with notice thereof, Kyxpyx shall have the right
to terminate this Agreement and terminate the license grants set forth in
Section 2, inclusive of any Upgrades, versions or successors thereto. GIC's
rights under Section 2 of this Agreement with respect to Upgrades it develops
shall survive any expiration or termination of this Agreement.
b. GIC may terminate this Agreement only if Kyxpyx fails to deliver ISV in
satisfaction of GIC's acceptance criteria after notice to Kyxpyx and an
opportunity to cure, in accordance with Section 12.6.
c. Except as expressly stated in this Section 11.2 and in Section 12.6, the
parties agree that in the event that either party breaches any material term
of this Agreement, the non-breaching party shall deliver notice thereof to the
breaching party and the breaching party shall have thirty (30) days from
receiving such notice to cure such breach. If the breach continues after such
30-day period, the non-breaching party's sole remedy shall be to seek monetary
damages in a court of competent jurisdiction.
11.2 Effect of Expiration or Termination.
In the event of expiration of this Agreement in accordance with Section 11.1
or termination in accordance with Section 11.2(a), GIC shall be authorized to
continue exercising all of the rights granted pursuant to Section 2 of this
Agreement, subject to its losing the exclusivity granted by Section 2. All
licenses or sublicenses granted by either party under the terms of this
Agreement prior to expiration or termination shall remain in full force and
effect and shall not be affected by termination or expiration.
11.3 No Waiver.
The failure of either party to enforce any provision of this Agreement shall
not be deemed a waiver of that provision.
11.4 Survival.
The parties' rights and obligations under Sections 2.0, 5.1, 5.2, 5.3, 6.0,
7.0, 8.0 9.0, 10.0, and 11.0 shall survive expiration or termination of this
Agreement, except that Section 2 of this Agreement shall not survive
termination of this Agreement pursuant to Section 11.2(a).
12.0 MISCELLANEOUS
12.1 Notices.
All notices must be in writing and delivered either in person or by certified
mail or registered mail, postage prepaid, return receipt requested, or by
confirmed e-mail to the person(s) and address specified below. Such notice
will be effective upon receipt.
Kyxpyx Technologies Inc.
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
e-mail address: ▇_▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Global Internet Communications
▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
e-mail address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
12.2 Partial Invalidity.
If any term or provision of this Agreement is found to be invalid under any
applicable statute or rule of law then, that provision notwithstanding, this
Agreement shall remain in full force and effect and such provision shall be
deleted unless such a deletion would frustrate the intent of the parties with
respect to any material aspect of the relationship established hereby, in
which case, this Agreement and the licenses and rights granted hereunder shall
terminate.
12.3 Complete Understanding.
This Agreement and the Exhibits hereto constitute and express the final,
complete and exclusive agreement and understanding between the parties with
respect to its subject matter and supersede all previous communications,
representations or agreements, whether written or oral, with respect to the
subject matter hereof. This Agreement may not be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by the parties.
12.4 Compliance with Laws.
The ISV, including technical data, is subject to U.S. export control laws,
including the U.S. Export Administration Act and its associated regulations,
and may be subject to export or import regulations in other countries. GIC
agrees to comply strictly with all such regulations and acknowledges that it
has the responsibility to obtain such licenses to export, re-export or import
the Technology or ISV as may be required after delivery to GIC.
12.5 Disclaimer of Agency.
The relationship created hereby is that of licensor and licensee and the
parties hereby acknowledge and agree that nothing herein shall be deemed to
constitute GIC as a franchisee of Kyxpyx. GIC hereby waives the benefit of any
state or federal statutes dealing with the establishment and regulation of
franchises.
12.6 Delivery and Acceptance.
On the Effective Date or as soon as practicable, Kyxpyx shall deliver to GIC
one (1) complete copy of the deliverables set forth in Exhibit A (i.e., the
ISV and the Documentation). Within 30 days after receiving such deliverables,
GIC shall confirm that the ISV conforms to GIC's reasonable expectations. If
GIC notifies Kyxpyx of a non-conformance, Kyxpyx shall promptly address the
discrepancies between what GIC expected and what Kyxpyx delivered. If the
amended copy of the ISV also does not conform to the GIC's reasonable
expectations, GIC shall have the option to terminate this Agreement.
12.7 Assignment and Change in Control.
This Agreement may not be assigned by either party except as herein provided
without the prior written consent of the other party, which consent shall not
be unreasonably withheld or delayed, except that either party may assign this
Agreement to a majority-owned subsidiary.
12.8 Construction.
This Agreement will be fairly interpreted in accordance with its terms and
without any strict construction in favor of or against either party.
12.9 Force Majeure.
Except for the obligation to pay money, neither party shall be liable to the
other party for non-performance of this Agreement, if the non-performance is
caused by events or conditions beyond that party's control and the party gives
prompt notice under Section 11.1 and makes all reasonable efforts to perform.
12.10 Exhibits.
The following are included herein by reference as integral parts of this
Agreement:
Exhibit "A" - Description of ISV and Documentation
Exhibit "B" - Confidential Disclosure Agreement
12.11 Section References.
Any reference contained herein to an article of this Agreement shall be meant
to refer to all subsections of the article.
12.12 Governing Law.
The law that governs the interpretation and enforcement of the Agreement is
the laws of the Province of British Columbia.
12.13. Headings.
Headings used in this Agreement are provided for convenience only and shall
not be used to construe meaning or intent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Signed this 10th day of August, 2000.
______________________________ ____________________________
Witness Kyxpyx Technologies Inc.
______________________________ ____________________________
Witness Global Internet Communications Inc.
EXHIBIT "A"
DESCRIPTION OF TECHNOLOGY AND DOCUMENTATION
Kyxpyx shall deliver each of the following items to GIC under the terms of the
Agreement.
I. Internet Streaming Video as derived from the Kyxpyx streaming video
Technology.
II. Documentation: ISV Documentation
EXHIBIT "B"
CONFIDENTIAL DISCLOSURE AGREEMENT
BI-LATERAL DISCLOSURE
Kyxpyx Technologies, Inc., and Global Internet Communications Inc. agree that
the definitions in section 1 of the agreement that this Agreement is an
exhibit to are incorporated by reference and are an integral part of this
Agreement; and the parties further agree as follows:
1. (a) The information disclosed under this Agreement ("Information") includes
the following: Kyxpyx Information: business information related to its
Technology associated technologies, licensing practices and fees, research and
development plans, customers, and marketing and future business plans.
(b) The permitted use of Information is for the purpose of exploring business
possibilities between Kyxpyx and Party.
2. This Agreements covers only Information which is disclosed between the
Effective Date and twelve (12) months thereafter. Each party's obligations
regarding Information expires three (3) years after the date of disclosure
(except for Kyxpyx Technology and ISV source code, which shall be protected in
perpetuity). Information shall be used solely as permitted above, and shall
not be disclosed to a third party other than a subsidiary, agent, or
subcontractor of the receiving party who has agreed to be bound by the terms
of this Agreement. Each party shall protect Information of the other party
using the same degree of care, but not less than a reasonable degree of care,
as such party to protect its own confidential information. Upon termination of
this Agreement or the disclosing party's written request, the receiving party
shall cease use of Information and return or destroy all information.
3. Each party shall be obligated to protect only Information: (a) disclosed in
tangible form clearly labeled as confidential or proprietary at the time of
disclosure; or (b) disclosed in non-tangible form, identified as confidential
or proprietary at the time of disclosure, and summarized in writing,
designated as confidential or proprietary, and delivered to the other party
within thirty (30) days after disclosure.
4. This Agreement imposes no obligation upon the receiving party with respect
to Information which: (a) was in the possession of, or was known by, the
receiving party prior to its receipt from the disclosing party, without an
obligation to maintain its confidentiality; (b) is or becomes generally known
to the public without violation of this Agreement; (c) is obtained by the
receiving party from a third party, without an obligation to keep such
information confidential; or (d) is independently developed by the receiving
party without use of Information.
5. Disclosure of the other party's Information is not prohibited if prior
notice is given to the other party and such disclosure is: (a) compelled
pursuant to a legal proceeding or (b) otherwise required by law. Information
is delivered "AS IS," and all representations and warranties, express or
implied, including fitness for a particular purpose, merchantability, and
non-infringement, are hereby disclaimed. Neither party has an obligation to
sell or purchase any item from the other party. Neither party shall be liable
for any special, incidental, consequential or punitive damages by reason of
any alleged breach of this Agreement based on any theory of liability. Nothing
is this Agreement shall be construed as a representation that the receiving
party will not develop or acquire information that is the same as or similar
to Information, provided that the receiving party does not do so in breach of
this Agreement. The receiving party agrees that any breach of this Agreement
will result in irreparable harm to the disclosing party for which damages
would be an inadequate remedy and, therefore, in addition to its rights and
remedies otherwise available at law, the disclosing party shall be entitled to
equitable relief, including injunction, in the event of such breach. The
receiving party does not acquire any rights in Information, except the limited
rights to use Information as described above.
6. This Agreement constitutes the entire agreement between the parties
concerning its subject matter. All additions or modifications to this
Agreement must be made in writing and must be signed by an authorized
representative of each party. The parties agree to comply strictly with all
applicable export control laws and regulations. Any action relating to this
Agreement will be governed by British Columbia law, excluding choice of law
rules.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Signed this 31st day of December, 2000.
______________________________ ____________________________
Witness Kyxpyx Technologies Inc.
______________________________ ____________________________
Witness Global Internet Communications Inc.