BILLING SYSTEM SOFTWARE TECHNOLOGY LICENSING AGREEMENT
Exhibit
10.17
BILLING
SYSTEM SOFTWARE TECHNOLOGY
THIS
AGREEMENT
is
entered into this 1st day of April, 2005 by and between MicroBilling
Systems, Ltd.,
a
foreign entity whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇ (“Licensor”), and Camnation,
Inc.,
a
Delaware corporation located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(“Licensee”).
RECITALS
WHEREAS,
Licensor is engaged in the business of designing and developing computer-related
software and related products for application on the Internet, and has, over
the
years, acquired and developed substantial and valuable technical knowledge,
know-how, and experience in the design and development of such systems.
Specifically, Licensor has developed and continues developing Billing System
Software Technology (the “Software”). The Billing System Software platform was
originally designed as a mechanism to invoice and ▇▇▇▇ customers for purchases
made via the Internet. The Billing System software allows immediate access
to an
application or Website while securely requesting personal and payment
information later, a description of which is annexed hereto as
Exhibit A.
WHEREAS,
Licensee desires to obtain from Licensor and Licensor is willing to grant to
Licensee, a non-exclusive license relating to the Software in accordance with
the terms and conditions herein; and
WHEREAS,
Licensor and Licensee believe it is in their mutual interest and desire to
enter
into this licensing agreement (“Agreement”) whereby Licensee would use the
Software in the conduct of its operations on the Internet pursuant to the terms
and conditions hereinafter provided.
NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants of this Agreement, the
parties hereto agree as follows:
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1.
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GRANT
OF LICENSE
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1.1 Grant.
Subject
to the terms and conditions set forth in this Agreement, Licensor hereby grants
to Licensee, for the term of this Agreement, a nonexclusive, nontransferable,
license in the Software, to use the Software in the operation of its business
on
the Internet.
1.2 Restriction.
Except
as specifically granted in this Agreement, Licensor owns and retains all right,
title, and interest in Software and any and all related materials. This
Agreement does not transfer ownership rights of any description in the Software,
or any related material to Licensee or any third party. Licensee shall not
modify, reverse engineer, or decompile the software, or create derivative works
based on the Software. Licensee shall retain all copyright and trademark notices
on the Software and Documentation and shall take other necessary steps to
protect Licensor’s intellectual property rights. This License may not be
transferred, assigned, or sublicensed (either voluntarily or involuntarily)
by
Licensee without the express written consent of Licensor. Any attempted
transfer, assignment, or sublicense, in violation of this Section shall be
void
and ineffective for all purposes. In the event of an assignment or sublicense
permitted by this Section, this Agreement shall be binding upon the heirs,
successors and assigns of the parties hereto.
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2.
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TERM
AND TERMINATION
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2.1 Term.
This
Agreement, and the License granted hereunder, becomes effective as of the date
of execution by both parties and shall extend forward in perpetuity unless
sooner terminated as set forth below in Section 2.2.
2.2 Termination
for Cause.
Either
party, as applicable, shall have the right, in addition, and without prejudice
to any other rights or remedies, to terminate this Agreement as
follows:
2.2.1 by
either
party for any material breach of this Agreement that is not cured within ten
(10) days of receipt by the party in default of a notice specifying the breach
and requiring its cure;
2.2.2 by
either
party, immediately upon written notice, if: (a) all or a substantial portion
of
the assets of the party are transferred to an assignee for the benefit of
creditors, to a receiver, or to a trustee in bankruptcy; (b) a proceeding is
commenced by or against either party for relief under bankruptcy or similar
laws
and such proceeding is not dismissed within sixty (60) days; or (c) the other
party is adjudged bankrupt;
2.2.3 by
Licensor, immediately upon written notice if Licensee’s failure to comply with
Licensor’s standard Terms and Conditions for use of the Software, including, by
way of example and not limitation, failure on the part of Licensee to comply
with Licensor’s anti-spam policy (attached hereto as Exhibit “B”), the
commission of consumer or credit card fraud by Licensee, material
misrepresentations made to Licensor, upon which Licensor relied when entering
into this Agreement.
2.3 Rights
on Termination.
Licensor
has and reserves all rights and remedies that it has by operation of law or
otherwise to enjoin the unlawful or unauthorized use of Software. Sections
1.2,
6, 7, and 8, will survive termination or expiration of this Agreement as will
any cause of action or claim of either party, whether in law or in equity,
arising out of any breach or default. On termination all rights granted to
Licensee under this Agreement cease and immediately revert to Licensor and
Licensee will promptly cease all use and reproduction of the Software, and
Licensee will promptly return all copies of the Software to Licensor or destroy
all of Licensee’s copies of the Software and so certify to Licensor in writing
within fourteen (14) days of termination.
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3.
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CONSIDERATION
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3.1 Consideration.
In
consideration for the license granted hereunder, Licensee agrees to pay to
Licensor the sum of one dollar ($1) plus other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged.
2.
3.2 Payments.
All
payments due Licensor shall be made in U.S. currency unless otherwise specified
by Licensor.
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4.
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LICENSOR’S
OBLIGATIONS
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4.1 Deliverables.
Upon
execution of this Agreement, Licensor shall deliver the Software to Licensee
in
a format appropriate for the Licensee’s platform.
4.2 Support
and Maintenance.
Beginning upon the effective date of this Agreement as provided in Schedule
A,
Licensor shall meet with Licensee relating to the installation and operation
of
hardware, software, machinery, equipment, materials, object codes,
specifications, designs, manufacturing and processing procedures, methods,
layout, and the like that Licensor believes Licensee may require in order to
adapt the Technology to use on its Internet Web site(s). Licensor shall also
provide Licensee such technical and other qualified experts to train and
otherwise educate Licensee in the use of the Technology and assist in the
resolution of any problems or matters that require on-the-spot assistance.
In
any such event, Licensee shall pay all time, travel and out-of-pocket expenses
incurred by any such Licensor personnel or agents, it being understood that
the
salaries of the experts shall be the responsibility of Licensee.
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5.
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LICENSEE’S
OBLIGATIONS
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5.1 Financial
Resources.
Licensee
represents that it has the financial resources and business operations that
will
enable it to reasonably commercialize the Software and that it shall, during
the
term of this Agreement and any renewal thereof, use its best efforts to promote
the Software on the World Wide Web. Licensee further agrees that it will, in
good faith and with reasonable diligence, conduct all operations incorporating
the Software in accordance with the highest standards of business customs of
the
industry and that it will endeavor to utilize its skill and resources in such
effort to the extent that high standards of business practice and judgment
dictate.
5.2 Compliance.
Licensee
shall fully comply with the marking provisions of the intellectual property
laws
of the United States.
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6.
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CONFIDENTIALITY
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6.1 Confidentiality.
Licensee
acknowledges that the Software, and all information relating to the business
and
operations of the Licensor that Licensee learns or has learned during or prior
to the term of this Agreement, may be the valuable, confidential, and
proprietary information of the Licensor. During the period this Agreement is
in
effect, and at all times afterwards, Licensee, and its employees, contractors,
consultants, and agents, will: (a) safeguard the confidential information with
the same degree of care that it uses to protect its own confidential
information; (b) maintain the confidentiality of this information; (c) not
use
the information except as permitted under this Agreement; and (d) not
disseminate, disclose, sell, publish, or otherwise make available the
information to any third party without the prior written consent of
Licensor.
3.
6.2 Limitations
on Confidentiality Restrictions.
Section
6.1 does not apply to any information that: (a) is already lawfully in the
receiving party’s possession (unless received pursuant to a nondisclosure
agreement); (b) is or becomes generally available to the public through no
fault
of the receiving party; (c) is disclosed to the receiving party by a third
party
who may transfer or disclose such information without restriction; (d) is
required to be disclosed by the receiving party as a matter of law (provided
that the receiving party will use all reasonable efforts to provide the
disclosing party with prior notice of such disclosure and to obtain a protective
order therefor); (e) is disclosed by the receiving party with the disclosing
party’s approval; and (f) is independently developed by the receiving party
without any use of confidential information. In all cases, the receiving party
will use all reasonable efforts to give the disclosing party ten (10) days’
prior written notice of any disclosure of information under this
agreement.
6.3 Injunctive
Relief for Breach.
Licensor
and Licensee acknowledge that any breach of Section 6.1 by a receiving party
will irreparably harm the disclosing party. Accordingly, in the event of a
breach, the disclosing party is entitled to promptly seek injunctive relief
in
addition to any other remedies that the disclosing party may have at law or
in
equity.
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7.
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WARRANTIES,
DISCLAIMER, AND
LIMITATIONS.
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7.1 Warranties.
7.1.1 Licensor
hereby warrants to Licensee that Licensor is the owner of the Software or has
the right to grant to Licensee the license to use the Software in the manner
and
for the purposes set forth in this Agreement without violating any rights of
a
third party.
7.1.2 Licensee
hereby warrants to Licensor that it has performed all necessary due diligence
to
ascertain whether the Software performs in the manner represented by Licensee
and that the Software is suitable for Licensor’s purposes.
7.2 Disclaimer.
THE
WARRANTIES SET FORTH IN SECTION 7.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT
EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE,
WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND
SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY;
AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
7.3 Remedies
on Breach of Warranty.
In the
event of any breach of the warranty set forth in Section 7.1, Licensee’s
exclusive remedy shall be for Licensor to promptly replace defective Software
media; if Licensor is unable to replace the media within thirty (30) days of
notification by Licensee of a defect, Licensee’s sole remedy is to terminate
this Agreement, at which time Licensor will refund any and all license or other
fees paid by Licensee pursuant to this Agreement.
7.4 Limitation
of Liability.
LICENSOR
IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES,
INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT
OF
SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION
IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S LIABILITY FOR
DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY
LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
4.
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8.
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INDEMNITY.
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8.1 Infringement
Indemnity.
Licensor
indemnifies, defends, and holds Licensee harmless from and against any claims,
actions, or demands alleging that the Software infringes any United States
patent, United States copyright, or other United States intellectual property
right of a third party. If use of the Software is permanently enjoined for
any
reason, Licensor, at Licensor’s option, and in its sole discretion, may: (a)
modify the Software so as to avoid infringement; (b) procure the right for
Licensee to continue to use and reproduce the Software and Documentation; or
(c)
terminate this Agreement and refund to Licensee all license fees paid. Licensor
shall have no obligation under this Section 8.1 for or with respect to claims,
actions, or demands alleging infringement that arise as a result of (a) the
combination of noninfringing items supplied by Licensor with any items not
supplied by Licensor; (b) modification of the Software or Documentation by
Licensee or by Licensor in compliance with Licensee’s designs, specifications,
or instructions; (c) the direct or contributory infringement of any process
patent by Licensee through the use of the Software; and (d) continued allegedly
infringing activity by Licensee after Licensee has been notified of the possible
infringement.
8.2 Other
Indemnity.
Licensee
is responsible and indemnifies and holds Licensor harmless for any and all
losses, liability, or damages arising out of, or incurred in connection with,
Licensee’s use or reproduction of the Software pursuant to this
Agreement.
8.3 Condition
to Indemnification.
Should
any claim subject to indemnity be made against Licensor or Licensee, the party
against whom the claim is made agrees to provide the other party with prompt
written notice of the claim. Licensor will control the defense and settlement
of
any claim under Section 8.1 and Licensee will control the defense and settlement
of any claim under Section 8.2. The indemnified party agrees to cooperate with
the indemnifying party and provide reasonable assistance in the defense and
settlement of such claim. The indemnifying party is not responsible for any
costs incurred or compromise made by the indemnified party unless the
indemnifying party has given prior written consent to the cost or
compromise.
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9.
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EXPORT
CONTROLS AND RESTRICTED
RIGHTS.
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9.1 Export
Controls.
The
Software and all underlying information or technology may not be exported or
re-exported into any country to which the U.S. has embargoed goods, or to anyone
on the U.S. Treasury Department’s list of Specially Designated Nationals or the
U.S. Commerce Department’s Table of Deny Orders. Licensee shall not export the
Software or any underlying information or technology to any facility in
violation of these or other applicable laws and regulations. Licensee represents
and warrants that it is not a national or resident of, or located in or under
the control of, any country subject to such export controls.
5.
9.2 Restricted
Rights.
The
Software and Documentation are provided with Restricted Rights. Use,
duplication, or disclosure by the U.S. Government is subject to restrictions
as
set forth in subparagraph (c)(1) of the Commercial Computer Software -
Restricted Rights clause at h, subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at 252.227-7013, or subparagraph
(d)
of the Commercial Computer Software--Licensing at NASA FAR supplement
16-52.227-86, or their equivalent, as applicable.
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10.
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IMPROVEMENTS.
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During
the term of this Agreement, each party shall advise the other .party of any
technical improvements and inventions relating to the Technology. While no
improvements are required by this Agreement, all such improvements and
inventions ‘shall become the property of Licensor, and Licensee agrees to
execute any and all documents requested by Licensor in order to perfect
Licensor’s right in same.
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11.
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GENERAL.
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11.1 Entire
Agreement.
This
Agreement, along with the Exhibits attached and referenced in this Agreement,
constitutes the final and complete understanding between the parties, and
replaces and supersedes all previous oral or written agreements, understandings,
or arrangements between the parties with respect to the subject matter contained
in this Agreement.
11.2 Waiver.
This
Agreement may not be modified or amended except in a writing signed by an
authorized officer of each party. The failure of either party to enforce any
provision of this Agreement shall not be deemed a waiver of the provisions
or of
the right of such party thereafter to enforce that or any other
provision.
11.3 Notices.
Except
as otherwise provided in this Agreement, notices required to be given pursuant
to this Agreement shall be effective when received, and shall be sufficient
if
given in writing, hand-delivered, sent by facsimile with confirmation of
receipt, sent by First Class Mail, return receipt requested (for all types
of
correspondence), postage prepaid, or sent by overnight courier service and
addressed as follows:
| To Licensor: |
▇▇▇▇
of Time, Inc.
|
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇
| To Licensee: |
Camnation,
Inc.
|
▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇
11.4 Publicity.
Without
the prior written consent of the other party, neither party shall disclose
the
terms and conditions of this Agreement, except disclosure may be made as is
reasonably necessary to the disclosing party’s bankers, attorneys, or
accountants or except as may be required by law.
6.
11.5 Relationship.
Nothing
in this Agreement shall be deemed to create an employer-employee,
principal-agent, or joint venture relationship. Neither party shall have the
authority to enter into any contracts on behalf of the other party.
11.6 Governing
Law and Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California.
11.7 Severability.
In case
any provision of this Agreement is held to be invalid, unenforceable, or
illegal, the provision will be severed from this Agreement, and such invalidity,
unenforceability, or illegality will not affect any other provisions of this
Agreement.
11.8 Arbitration.
In the
event of any dispute between the parties arising out of this Agreement, the
dispute shall be resolved by arbitration, in Los Angeles, California, under
the
rules of the American Arbitration Association by an arbitrator agreed upon
in
writing by the parties. In the event the parties cannot agree upon the choice
of
an arbitrator, each party shall appoint one individual representative and the
two party representatives shall, between themselves, choose an
arbitrator.
11.9 Attorney’s
Fees.
In the
event of any dispute between the parties arising out of this Agreement, the
prevailing party shall be entitled, in addition to any other rights and remedies
it may have, to recover its reasonable attorney’s fees and costs.
11.10 Successors.
This
Agreement shall be binding on and shall inure to the benefit of the parties
hereto, and their heirs, administrators, successors, and assigns.
11.11 Effective
Date.
The
effective date of this Agreement shall be April 1, 2005.
7.
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be executed as of the date written
above.
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LICENSEE:
CAMNATION, INC.
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Date:________________________________
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By:_______________________________
▇▇▇▇▇
▇▇▇▇▇, President
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LICENSOR:
▇▇▇▇ OF TIME, INC.
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Date:________________________________
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By:_______________________________
▇▇▇▇▇▇
▇▇▇▇▇, President
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SIGNATURE
PAGE TO TECHNOLOGY LICENSE AGREEMENT
8.
EXHIBIT “A”
TO
BILLING
SYSTEM SOFTWARE TECHNOLOGY
BETWEEN
MICRO
BILLING SYSTEMS LIMITED
AND
CAMNATION,
INC.
DATED:
April 1, 2005
1. The
Software is defined as follows:
BILLING
SYSTEM SOFTWARE TECHNOLOGY
The
Billing System Software platform was originally designed as a mechanism to
invoice and ▇▇▇▇ customers for purchases made via the Internet. The Billing
System software allows immediate access to an application or Website while
securely requesting personal and payment information later. The system works
by
installing a software module on the consumer’s machine, which allows access to
the application or Website that is being offered by the company that utilizes
the Billing System solution. After a predetermined period of time or other
billing trigger, the user is presented with an invoice and multiple payment
options to satisfy the original invoice that they received. This system is
effective because it offers a wide range of payment options including credit
card, check, wire transfer, telephone, or various Internet payment systems.
The
system can also provide anonymity to the user by supporting billing mechanisms,
which do not require personal information.
If
the
consumer refuses to pay or pays fraudulently, access to the application or
Website can be immediately revoked. A major marketing benefit is the user can
get nearly instant access to the application or Website without having to
complete cumbersome forms or having to lookup and provide financial information.
Typically, this application is left on the system and can be used to offer
additional products, track upsell purchases, or to identify and permanently
block fraudulent users from future purchases.
EXHIBIT “B”
ANTI-SPAM
POLICY
Licensee
may use the Software in conjunction with any reasonable promotional tool,
whether currently known or unknown, with the following exceptions:
A. SPAM.
Licensee
agrees not to perform any activity that is prohibited by the CAN-SPAM Act
dealing with illegal distribution of Unsolicited Commercial Bulk Email (“UCBE”),
commonly known as “spam.” No spamming of any kind maybe employed as an
advertising or promotional tool. Any breach of the Licensor’s Anti-Spam Policy
may result in immediate termination of the Agreement.
B. DECEPTIVE
ADVERTISING.
All
forms of deceptive or unfair advertising are strictly prohibited. The Software
may not be used in any way, shape, or form to support deceptive advertising.
Likewise, the Software may not be used in conjunction with deceptive
advertising. Licensee, to be certain of compliance with the requirements of
both
state and federal advertising law, should obtain independent legal advice before
engaging in any promotion. Use of the Software to support, or in conjunction
with, deceptive or unfair advertising may result in immediate termination of
the
Agreement.