Exhibit 10.3
Amended Strategic Alliance Agreement
This Strategic Alliance Agreement ("Agreement") amends and replaces the
agreement entered into by and between E-City Software, Inc., a Nevada
corporation ("E-City") and On Alert Systems, Inc., a Nevada corporation ("On
Alert") on May 23rd , 2003 this agreement is effective this 3rd day of
September, 2003.
Preamble
E-City has developed a 3D computer mapping technology for use by
municipal, state and federal governments as well as private industry for a
variety of mapping applications, including gunshot detection technology. E-City
has attempted in the past to identify and negotiate a strategic alliance with a
company having a marketing and distribution license for such gunshot detection
technology, but was unable to do so. On Alert has knowledge in the security
technology area and believes there are a number of applications for E-City's 3D
computer mapping technology, identified as E-City's 3D CityMaps(TM) and E-City
agrees to license this software to On Alert according to the attached license
agreement herein known as Exhibit A.
Therefore, the Parties have resolved as follows:
1. E-City and On Alert agree to amend the existing Strategic Alliance
Agreement.
2. E-City covenants, warrants and represents that:
It has full authority to enter into the agreement herein
attached as Exhibit A. It is a corporation in good standing under the
state of Nevada in good standing.
3. On Alert covenants, warrants and represents that:
a. It has full authority to enter into the agreement herein attached as
Exhibit A
b. It is a corporation in good standing under the state of Nevada in good
standing.
4. The parties acknowledge that Nevada law will govern this Agreement and
that this Agreement contains their complete understanding with respect
to the matters discussed herein. This Agreement may be signed in
counterparts, together which shall constitute a complete and binding
instrument.
In Witness Whereof, the Parties duly affix their signatures hereto as
of the date first marked above.
On Alert Systems, Inc.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer
E-City Software, Inc.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer
Exhibit A
to
Strategic Alliance Agreement
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (hereinafter called "Agreement") made this 3rd
day of September, 2003 by and between E-CITY SOFTWARE, INC., a Nevada
corporation (hereinafter called "E-City", which term shall include E-City's
subsidiaries), and On Alert Systems, Inc. ("Licensee").
WITNESSETH:
WHEREAS, E-City has developed and possesses a certain software products
listed in Exhibit B for use in the commercial and military mapping environment
(which is called "E-City Software"),
WHEREAS, LICENSEE desires to license the use of the E-City
Software in the Territory, as defined herein, both for its own use and for
purposes of sublicensing within the Territory.
WHEREAS, LICENSEE desires to act as and the exclusive global developer
and distributor for E-City Software, with the right to sublicense within the
Territory;
WHEREAS, subject to the conditions and terms contained herein, E-City
is willing and desirous to grant to LICENSEE, and LICENSEE desires to obtain
from E-City a global, exclusive, transferable, assignable license for the
development, use, resale, sublicense and distribution to the E-City Software for
LICENSEE and only for multiple purposes in the commercial and military mapping
market the Territory, which shall be global; and
WHEREAS, E-City and LICENSEE have negotiated and agreed upon the
following conditions and terms for a business relationship for the license and
sale of the E-City Software.
NOW, THEREFORE, for and in the consideration of Ten Dollars ($10.00) in
hand paid each respective party to the other and other good/valuable
considerations including, but not limited to, the covenants, conditions and
terms hereof, the sufficiency and receipt of said good/valuable considerations
being herewith acknowledged by the respective parties, E-City and LICENSEE
stipulate and agree as follows:
1. Recitals. The recitals set forth above are accurate, correct
and true and are incorporated herein by this reference describing specifically
the understandings and intentions of the respective parties hereto.
2. Definitions. When used in this Agreement, the following
terms shall have the meanings set forth next to the same as follows:
(a) The term "E-City Software" means the E-City Software
component that is sold under the trademarks in Exhibit B , but not
including any modules, which may be used in connection with E-City
Software; the term "Modules" refers to E-City Software together with
the optional modules that E-City has developed to work in connection
with E-City Software.
(b) The term "Future Products" means the E-City Software
components, which are developed during the Term of this agreement in
the field of mapping technology by E-City for sale and licensing.
3. E-City's Right to Terminate.
---------------------------
(a) E-City may terminate this Agreement, in addition to any
other remedies available to it, (i) if LICENSEE has failed to perform
or meet any material obligation, condition or term contained herein and
failed to remedy the default within thirty (30) days after the receipt
of written notice from E-City to that effect, or (ii) if LICENSEE has
failed to make any payment when payable and due under this Agreement to
E-City within fifteen (15) days after the receipt of written notice
from E-City to that effect.
(b) Notwithstanding the foregoing, this Agreement shall be
automatically terminated if LICENSEE becomes bankrupt, involuntary,
voluntary or adjudicated, or LICENSEE shall cease to function as a
going concern by suspending or discontinuing its business for any
reason except for periodic shutdowns in the ordinary course of business
and interruptions caused by strike, labor dispute or any other events
over which it has no control.
(C) E-City's failure to resort to any remedy for breach
hereunder shall not be deemed to be a waiver for any subsequent breach
of this Agreement.
4. LICENSEE's Right to Terminate.
-----------------------------
(a) LICENSEE may terminate this Agreement, in addition to any
other remedies available to it if E-City has failed to perform or meet
any material obligation, condition or term contained herein and failed
to remedy the default within thirty (30) days after the receipt of
written notice from LICENSEE to that effect.
(b) Notwithstanding the foregoing, this Agreement shall be
automatically terminated if E-City becomes bankrupt, involuntary,
voluntary or adjudicated, or at LICENSEE's discretion may terminate if
E-City shall cease to function as a going concern by suspending or
discontinuing its business, except for the decision to discontinue
specific projects and periodic shutdowns in the ordinary course of
business and interruptions caused by strike, labor dispute or any other
events over which it has no control.
(c) LICENSEE's failure to resort to any remedy for breach
hereunder shall not be deemed to be a waiver for any subsequent breach
of this Agreement.
5. Grant of License Rights. Subject to the conditions and terms
contained herein, , E-City grants to LICENSEE a global exclusive, transferable,
(with the right to sublicense),to develop, to use, distribute, advertise,
market, promote and sell the E-City Software in the Territory.
6. E-City Software. The E-City Software all software listed on Exhibit
B. E-City shall have no obligation to update, add-to, improve or otherwise
support, in any fashion whatsoever, the E-City Software product. Licensee is
responsible for any support of sublicensees of the product and specifically
indemnifies and holds harmless E-City from any obligation for the same.
7. E-City License Terms. E-City shall deliver and provide to LICENSEE
the E-City Software currently available by October 31, 2003. Notwithstanding
anything herein to the contrary, all proprietary right, title and interest in
and unto the foregoing E-City Software, including the extension of those rights
in the respective LICENSEE, shall remain the exclusive and sole proprietary
property of E-City subject only to the rights to same granted to LICENSEE
herein.
8. E-City Compensation and Term of Agreement. In consideration of the
E-City Software, license rights granted herein by E-City to LICENSEE, , and
LICENSEE shall pay to E-City the following sums as described hereafter:
(a) Initial Payment. LICENSEE agrees to settle current
outstanding debts on terms agreeable to On Alert.
(b) LICENSEE will revenue share. and pay E-City 5% of
all gross sales of the mapping software herein
described in this agreement
(c) LICENSE will be responsible for all development and
production of software and will retain ownership at
the same 95/5 ration in any future products developed
or improved.
9. Territory. LICENSEE shall conform all sublicenses to include
the restriction as to the Territory for their use.
10. Additional E-City Software. E-City may provide to LICENSEE from
time to time, at E-City's absolute and sole discretion, certain additional
E-City Software products shall be required to be licensed to LICENSEE under this
Agreement. Such additional products shall be subject to the same terms and
conditions as pertain to the original Software.
11. Quality, Notices and Approvals.
------------------------------
(a) LICENSEE represents and warrants that the quality and
style of all promotional, advertising, marketing and packaging material
relating to the Software, shall be of first class quality. LICENSEE
shall not distribute, license, sell or allow use of the E-City Software
which utilize the promotional, advertising, marketing and packaging
material or trademarks associated therewith (hereinafter collectively
called the "Trademark"), until E-City shall have examined and reviewed
same and granted approval for the use thereof as described herein,
which approval E-City shall not unreasonably withhold or delay.
(b) All promotional, advertising, marketing and packaging
material displaying a Trademark for the E-City Software shall contain
the following legal notices (or such other notices or legends as E-City
may from time to time reasonably request) as appropriate to the
respective E-City Software:
"[any trademarks of E-City as described on Exhibit B hereto
("E-City Trademarks")] are registered trademarks of E-City Software,
Inc., and used under license agreement."
Whenever appropriate, LICENSEE shall also include the symbol (TM) or
(R) next to a Trademark, wherever the Trademark is used by E-City
and/or LICENSEE with the E-City Software. LICENSEE, in its use of the
Trademark, will cause the foregoing legal notices or legends to appear
on the Private Builds and on the promotional, advertising, marketing
and packaging material related to same.
13. Goodwill of Trademark.
---------------------
(a) LICENSEE acknowledges the value of the goodwill associated
with the Trademark and that the Trademark is distinctive and has
acquired secondary meaning. LICENSEE agrees, during the Term, and
thereafter, never to challenge the rights of E-City or others in the
Trademark.
(b) LICENSEE acknowledges and agrees that the Trademark, the
goodwill associated with the Trademark, all rights pertaining to the
Trademark and such further goodwill are and shall remain the exclusive
property of E-City or the owners thereof. LICENSEE further acknowledges
and agrees that its use of the Trademark pursuant to the conditions and
terms of this Agreement shall not entitle LICENSEE to acquire any
rights in the Trademark, other than the licensed rights to utilize same
as described herein. By execution hereof, and to the extent possible
under applicable law, LICENSEE hereby assigns to E-City all of its
right, title and interest, if any, in and unto the Trademark, and
further E-City agrees to execute and deliver such instruments and take
such other action as may be required and requested by E-City to carry
out the assignment contemplated herein.
(c) LICENSEE shall promptly comply on a prospective basis with
all instructions and specifications from time to time communicated by
E-City in connection with the use and display of the Trademark, not
inconsistent with this Agreement.
14. Trademark Protection. LICENSEE acknowledges that the trademarks,
trade names and design marks ("Trademark") used by E-City and listed on Exhibit
"B" attached hereto and incorporated herein by this reference are the
proprietary and sole property of E-City or otherwise licensed to E-City for its
use. LICENSEE shall not use the Trademark(s), except in the normal course of
disclosure, advertising and marketing the E-City Software and shall
appropriately designate the rights of the parties therein on such advertising
and marketing materials. LICENSEE will distribute the E-City Software only under
E-City's proprietary rights therein and shall take all reasonable action to
protect E-City's rights therein. Upon termination of this Agreement, LICENSEE
shall immediately cease the use of any of E-City's proprietary trademarks, trade
names, design marks or rights.
15. Trademark Protection and Infringement.
-------------------------------------
(a) [Intentionally Omitted]
(b) LICENSEE agrees that it shall not, at any time:
(i) apply for any registration of any trademark
or other designation, which would adversely affect
E-City's rights in the Trademark;
(ii) file any document with any governmental
authority or take any action which would adversely affect
E-City's rights in the Trademark;
(iii) use or authorize the use of any trademark,
trade name or other designation identical with or
confusingly similar to the Trademark;
(iv) use the Trademark, or sell, offer to sell,
distribute or advertise the E-City Software in any manner that
does not comply with the provisions of all applicable federal,
state and local laws and regulations including, without
limitation, those relating to the use of trademarks;
(v) use or display the Trademark in a manner
which might be confusing or deceptive or might injure the
good will and reputation associated with the Trademark; or
(vi) otherwise commit any act, which would create a
potential liability on the part of E-City or would adversely
affect the goodwill and reputation of the Trademark.
(c) E-City shall have the right, but not the obligation, to
prosecute, defend and/or settle at its own cost and expense and in its
sole discretion, all actions, proceedings and claims involving the
Trademark, and to take any other action that it deems proper or
necessary for the protection and preservation of its rights in the
Trademark. In its sole option, E-City may take any action described
above in its own name, and/or in the name of LICENSEE, and LICENSEE
will cooperate fully therewith. All expenses of any action taken by
E-City to protect its interests in the Trademark shall be borne by
E-City, and all relief granted in connection therewith shall be solely
for the account of E-City, except as described herein where LICENSEE
may participate in such action. In the event LICENSEE determines, in
its absolute and sole discretion, that it desires to participate with
E-City in any action, proceeding and/or claim or to initiate it's own
action to protect its interests in the E-City Software which utilize
the Trademark, then LICENSEE shall proportionately bear its portion of
the expenses related to same with E-City, and shall proportionately
benefit in the relief granted in connection therewith as it relates to
LICENSEE's rights. LICENSEE shall notify E-City promptly of any
adverse, pending or threatened action in respect of the Trademark, and
of any use by third parties that would or might tend to be adverse to
the rights of E-City, if said action against the Trademark or adverse
use of the Trademark becomes known to LICENSEE.
16. Representations and Warranties.
------------------------------
(a) E-City represents and warrants to LICENSEE:
(i) that it is a Nevada corporation, duly
organized, validly existing and in good standing under the
laws of said State;
(ii) that it has the full right, power and
authority to enter into and perform the obligations
contemplated in this Agreement;
(iii) that this Agreement constitutes a legal, valid
and binding obligation of E-City, enforceable in accordance
with its conditions and terms; and
(iv) that neither E-City nor any of its shareholders,
directors or officers is subject to, or a party to, any
agreement, obligation, claim, action, order or judgment, in
effect, pending or threatened, which would adversely affect or
otherwise interfere with E-City's performance under this
Agreement.
That the E-City Software will function as
specified in accordance with the current
version of the Help documentation that
resides on the E-City Software.(v)
(b) LICENSEE represents and warrants to E-City:
(i) that it is Nevada corporation, duly
organized, validly existing and in good standing under the
laws of said state;
(ii) that it has the full right, power and
authority to enter into and perform the obligations
contemplated in this Agreement;
(iii) that this Agreement constitutes a legal, valid
and binding obligation of LICENSEE, enforceable in accordance
with its conditions and terms;
(iv) that neither LICENSEE nor any of its
shareholders, directors or officers is subject to, or a party
to, any agreement, obligation, claim, action, order or
judgment, in effect, pending or threatened, which would
adversely affect or otherwise interfere with LICENSEE's
performance under this Agreement.
17. Indemnification.
---------------
(a) LICENSEE hereby indemnifies E-City and holds E-City
harmless and defends E-City from and against any and all claims, suits,
losses, liabilities, causes of action, damages and costs (including
reasonable attorneys' fees), or the settlement or avoidance thereof,
arising out of any breach of LICENSEE's representations and warranties
or breach of this Agreement. For purposes of this subparagraph,
"LICENSEE" shall include LICENSEE's officers, directors, employees,
agents, subsidiaries, parents and affiliates and partners.
(b) E-City hereby indemnifies LICENSEE and holds LICENSEE
harmless and defends LICENSEE from and against any and all claims,
suits, losses, liabilities, causes of action, damages and costs
(including reasonable attorneys' fees), or the settlement or avoidance
thereof, arising out of any breach of E-City's representations and
warranties or this Agreement. For purposes of this subparagraph,
"E-City" shall include E-City's officers, directors, employees, agents,
subsidiaries, parents and affiliates.
(c) The provisions of this Section shall survive the
termination or expiration of this Agreement.
18. E-City Software Ownership.
-------------------------
(a) Code Ownership. E-City has developed and owns, or has the
licensed rights to use, and has copyright and trademark rights thereto where
applicable, all of the proprietary software in object code form and all
modifications or additions to such code (hereinafter collectively called
"Proprietary Code") as is incorporated at any time in the E-City Software. The
Proprietary Code may be expanded upon during the Term of this Agreement and
shall remain under the exclusive ownership and control of E-City. LICENSEE
acknowledges that it has no right, title or interest in or unto the Proprietary
Code and further has no right, title or interest in or unto the E-City. By
execution hereof, LICENSEE acknowledges and agrees that all property rights to
the Proprietary Code shall remain the exclusive property of E-City, and to the
extent possible under applicable law, LICENSEE hereby assigns to E-City all of
its right, title and interest, if any, in and unto the Proprietary Code (to
secure E-City's ownership of the Proprietary Code which is integrally
incorporated therein) and further LICENSEE agrees to execute and deliver such
instruments and take such other action as may be required and requested by
E-City to carry out the assignment contemplated herein.
(b) Restrictions. Any provision to the contrary in this
Agreement notwithstanding, LICENSEE shall not have the right to sell, license,
market or otherwise convey or authorize any use for the E-City Software
whatsoever outside of the field of the Taxi industry, nor shall LICENSEE have
the right to sublicense the E-City Software in any manner whatsoever, except
that LICENSEE may grant end user licenses to customers in the mapping field
pursuant to the terms of this Agreement and enter into agreements with other
parties to resell the E-City Software. Any restrictions, provisions or
limitations of this Agreement, which apply to the E-City Software, also apply to
the LICENSEE.
19. Disclaimer. THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY LOSS OF PROFITS OR OTHER INCITAXIDISPATCH OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PERFORMANCE OR
NONPERFORMANCE HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
20. Export Control. This Agreement is made subject to any
applicable regulation, restrictions or orders on the export from the United
States of America of control of commodities, technical data or of information
concerning such technical data, which might be imposed from time to time by the
United States of America. LICENSEE will not export, indirectly or directly, any
of the LICENSEE or other E-City Software to any country for which the United
States of America or any agency thereof requires governmental approval at the
time of export without first obtaining an export license or requires the
existence of an export license for same, and further subject to the requirement
that LICENSEE must be able to export the LICENSEE to said country in accordance
with this Agreement's conditions and terms.
21. Shipment of Masters. E-City will ship the respective LICENSEE
"Masters" to LICENSEE, or if LICENSEE desires to its Replicator designated
through written instruction to E-City, and will utilize the shipment carrier and
method instructed by LICENSEE in its order to arrange for the shipment of the
respective Master and will insure same during such shipment. Such shipment from
E-City to LICENSEE shall be from E-City's place of business to LICENSEE or
LICENSEE's Replicator and all shipping, freight, tax and insurance charges
therefore shall be LICENSEE's responsibility. Risk of loss of the respective
Master shall be LICENSEE's risk after E-City has delivered the respective Master
to the appropriate carrier for shipment.
22. Packaging. LICENSEE will distribute and market the respective
LICENSEE, including any Updates, Upgrades or Add-Ons thereto (i.e., Supplemental
Products), only under the covenants, conditions and terms of the Shrinkwrap
License (hereinafter called the "Shrinkwrap License") attached hereto as Exhibit
A and incorporated herein by this reference which LICENSEE shall ensure is
included with each respective LICENSEE delivered by same. LICENSEE shall not,
and will not exercise any authority to, make representations, warranties or
statements concerning the LICENSEE that are inconsistent or exceed the
Shrinkwrap License.
23. Relationship. Nothing herein contained shall be construed to place
LICENSEE and E-City in a relationship as partners, joint venturers, employer and
employee, or principal and agent, respectively, and neither LICENSEE nor E-City
shall have the power to bind or obligate the other party in any manner
whatsoever.
24. Assignment. Neither E-City nor LICENSEE shall sublicense, transfer
or assign any rights herein granted, except (upon prior written notice to
LICENSEE) to E-City's subsidiaries, affiliates or parents, or to LICENSEE's
subsidiaries, affiliates or parents, without obtaining the other respective
party's prior written approval, which approval shall not unreasonably be
withheld or delayed, and, if granted, shall be conditioned upon the
sublicensee's, transferee's, or assignee's agreement in writing to abide by the
same obligations, conditions and terms applicable to the respective parties
hereto.
25. Notices. All notices, approvals and other communications provided
for in this Agreement shall be made in writing and delivered personally or by
certified or registered mail, return receipt requested, postage prepaid, to the
parties at their addresses set forth below, or to such address as either party
may specify by like written notice to the other and shall be deemed given when
received. Failure to accept certified or registered mail shall be deemed a
receipt thereof within ten (10) days after the first notice of delivery of the
certified or registered mail. Any entity may change its address as designated
herein by giving notice thereof as provided herein.
If to LICENSEE: On Alert Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to E-City: E-City Software, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address either party from time to time specify in writing to the
other.
26. Mediation/Arbitration. Any controversy, claim, misunderstanding,
cause of action, matter in question, breach or disagreement arising out of, or
relating to, this Agreement (hereinafter called "Dispute") shall be decided by
mediation or arbitration as follows:
(a) Mediation: The party seeking resolution of a Dispute
(hereinafter called "Complaining Party") shall provide the other party
(hereinafter called "Responding Party") with written notice describing
the Dispute and requesting mediation (hereinafter called "Mediation
Notice") thereof including the naming therein of its proposed mediator.
Within ten (10) calendar days of the delivery date of Mediation Notice,
the respective parties shall appoint a mutually acceptable mediator
(hereinafter called "Mediator") to resolve the Dispute. Within a
reasonable period of time thereafter, not to exceed ten (10) calendar
days after appointing the Mediator, the respective parties in
controversy ("Dispute") shall submit their respective cases to the
Mediator who shall hear the evidence and render a final decision
thereon within three (3) calendar days after the close of the evidence.
The respective parties agree that the mediation of the Dispute shall
take place in New Orleans, LA or such other location mutually
acceptable to the respective parties, and shall be governed by Oklahoma
law. Any decision or award rendered by the Mediator, and acceptable to
the respective parties, shall be final and judgment thereon may be
entered in accordance with applicable law in any Court having
jurisdiction thereof. If the Mediator shall demand compensation for its
services prior to mediation, then Complaining Party and Responding
Party shall pay said Mediator expenses on a fifty-fifty (50-50) basis
in advance of the mediation. The substantially prevailing party in
mediation shall be entitled to recover all expenses and costs of
mediation including its reasonable attorney's fees and any advanced
Mediator's expenses from the non-prevailing party.
(b) Arbitration: In the event the respective parties do not
select a mutually acceptable mediator within ten (10) calendar days of
Mediation Notice, the Complaining Party shall notify the Responding
Party in writing of its demand to arbitrate, and shall designate in
such notice (hereinafter called "Arbitration Notice") the name of its
arbitrator. Within ten (10) calendar days of the delivery date of
Arbitration Notice, Responding Party shall select its arbitrator.
Within twenty (20) calendar days of the delivery date of Arbitration
Notice, the two (2) arbitrators so selected shall appoint a third
arbitrator (third arbitrator hereinafter called "The Arbitrator").
Within thirty (30) calendar days of the delivery date of Arbitration
Notice the respective parties in controversy ("Dispute") shall submit
their respective cases to the panel of Arbitrators who shall hear the
evidence and render a final decision thereon within three (3) calendar
days after the close of the evidence. The respective parties agree that
the arbitration shall take place in New Orleans, Oklahoma or such other
location mutually acceptable to the respective parties, and shall be
governed by Oklahoma law in accordance with the American Arbitration
Association regulations and rules except as otherwise supplemented,
modified or amended herein. The Arbitrator shall be empowered to take
such procedural and discovery actions as the Arbitrator deems
appropriate, to the same extent as a court acting pursuant to the
Federal Rules of Civil Procedure. Any decision or award rendered by the
Arbitrator shall be final and judgment thereon may be entered in
accordance with applicable law in any court having jurisdiction
thereof. If the Arbitrator shall demand compensation for their services
prior to arbitration, then Complaining Party and Responding Party shall
pay said Arbitrators' expenses on a fifty-fifty (50-50) basis in
advance of the arbitration. The substantially prevailing party in
arbitration shall be entitled to recover all expenses and costs of
arbitration including its reasonable attorney's fees and any advanced
Arbitrators' expenses from the non-prevailing party.
(c) Equitable Remedy. Notwithstanding this Agreement's
conditions and terms relating to mediation and/or arbitration of
Disputes, the respective parties acknowledge and agree that breach of
certain of the covenants, conditions and terms of this Agreement, such
as a breach creating irreparable harm, would have an inadequate remedy
at law, and may not be adequately remedied by damages, and further
consent and agree that temporary and/or permanent injunctive and other
relief may be sought and pursued to prevent irreparable harm to either
respective party for breach of this Agreement's covenants, conditions
and terms without waiving the right to seek actual damages thereafter.
27. Miscellaneous.
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(a) Legal Representation. Each party to this Agreement has
been represented by counsel in the negotiation of this Agreement and
accordingly, no provision of this Agreement shall be construed against
a party due to the fact that it or its counsel drafted, dictated or
modified this Agreement or any condition or term thereof.
(b) Further Instruments. Each party hereto shall, from time to
time, execute and deliver such further instruments as any other party
or parties or its counsel may reasonably request to effectuate the
intent of this Agreement.
(c) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, if and when applicable.
(d) Survival of Representations and Warranties. The respective
representations, warranties and agreements of the respective parties to
this Agreement and contained in this Agreement shall survive and remain
in effect.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada. Wherever
possible, each provision, condition and term of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law; but if any provision, condition or term of this
Agreement, or any documentation executed and delivered hereto, shall be
prohibited by or invalid under such applicable law, then such
provision, condition or term shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision, condition or term or the remaining provisions, conditions
and terms of this Agreement or any documentation executed and delivered
pursuant hereto.
(f) Section Headings. The section headings inserted in this
Agreement are for convenience only and are not intended to, and shall
not be construed to, limit, enlarge or affect the scope or intent of
this Agreement, nor the meaning of any provision, condition or term
hereof.
(g) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
(h) Entire Agreement. This Agreement contains the entire
Agreement between the respective parties hereto and supersedes any and
all prior agreements and understandings between the parties hereto
relating to the subject matter hereof. No statement or representation
of the respective parties hereto, their agents or employees, made
outside of this Agreement, and not contained herein, shall form any
part hereof or bind any party hereto. This Agreement shall not be
supplemented, amended or modified except by written instrument signed
by the respective parties hereto.
(i) Attorneys' Fees and Costs: In any Dispute arising out of
or pertaining to this Agreement, the prevailing party, or substantially
prevailing party in multiple claims as the case may be, shall be
entitled to an award of its attorneys' fees and costs after a finally
sustained determination or decision, whether incurred before, after or
during mediation, arbitration, trial, or upon any appellate level.
(j) Time: Time is of the essence of this Agreement.
When any time period specified herein falls upon a Saturday,
Sunday or legal holiday, the time period shall be extended to 5:00 P.M.
on the next ensuing business day.
IN WITNESS WHEREOF, the undersigned respective parties have caused this
Agreement to be executed in their names the day and year first above written.
Signed, sealed and delivered in the "LICENSEE"
presence of:
ON ALERT
On Alert Systems, Inc., a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
"E-CITY"
E-CITY SOFTWARE, INC., a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
Exhibit List
EXHIBIT A - Shrink wrap license
EXHIBIT B - E-City Trademarks and Software
EXHIBIT A
End User Software License
IMPORTANT -- READ CAREFULLY: This E-City End-User License Agreement ("▇▇▇▇") is
a legal agreement between On Alert Systems, Inc. ("On Alert") and E-City
Software, Inc. ("E-City") for the E-City software product identified above,
which includes computer software and may include associated media, printed
materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By
installing, copying, or otherwise using the SOFTWARE PRODUCT, On Alert agrees to
be bound by the terms of this ▇▇▇▇. If On Alert do not agree to the terms of
this ▇▇▇▇, do not install, copy or use the SOFTWARE PRODUCT.
[GRAPHIC OMITTED]
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
PRODUCT is licensed, not sold.
1. GRANT OF LICENSE. This ▇▇▇▇ grants On Alert the following rights:
o Software License. E-City grants On Alert the right to make and use as
many copies of the SOFTWARE PRODUCT as On Alert have validly licensed
copies of E-City Trademarked software(R). On Alert may also make copies
of the SOFTWARE PRODUCT for backup and archival purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
o Maintenance of Copyright Notices. On Alert must not remove or alter any
copyright notices on all copies of the SOFTWARE
PRODUCT.
o Limitations on Reverse Engineering, Decompilation, and Disassembly. On
Alert may not reverse engineer, decompile, or disassemble the SOFTWARE
PRODUCT, except and only to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation.
o Separation of Components. The SOFTWARE PRODUCT is licensed as a single
product. Its component parts may not be separated for use on more than
one computer.
o Performance or Benchmark Testing. On Alert may not disclose the results
of any benchmark test of the SOFTWARE PRODUCT to any third party
without E-City's prior written approval.
o Support Services. E-City does not provide support of any kind for the
Product.
o Software Transfer. On Alert may permanently transfer all of On Alert
rights under this ▇▇▇▇ (i) only in conjunction with a permanent
transfer of On Alert validly licensed copy or copies of E-City
trademarked software (R); (ii) provided On Alert retain no copies;
(iii) On Alert transfer all of the SOFTWARE PRODUCT (including all
component parts, the media and printed materials, any upgrades; (iv) if
applicable, On Alert include the Certificate of Authenticity, and (v)
the recipient agrees to the terms of this ▇▇▇▇. If the SOFTWARE PRODUCT
is an upgrade, any transfer must include all prior versions of the
SOFTWARE PRODUCT; (vi) the sole and exclusive global licensed use of
the mapping software.
o Termination. On Alert rights under this ▇▇▇▇ terminate upon the
termination of On Alert E-City Software (R); operating system ▇▇▇▇.
Without prejudice to any other rights, E-City may terminate this ▇▇▇▇
if On Alert fails to comply with the terms and conditions of this ▇▇▇▇.
In such event, On Alert must destroy all copies of the SOFTWARE PRODUCT
and all of its component parts.
3. UPGRADES. If the SOFTWARE PRODUCT is labeled as an upgrade, On Alert must be
properly licensed to use a product identified by E-City as being eligible for
the upgrade in order to use the SOFTWARE PRODUCT. A SOFTWARE PRODUCT labeled as
an upgrade replaces and/or supplements the product that formed the basis for On
Alert eligibility for the upgrade. On Alert may use the resulting upgraded
product only in accordance with the terms of this ▇▇▇▇. If the SOFTWARE PRODUCT
is an upgrade of a component of a package of software programs that On Alert
licensed as a single product, the SOFTWARE PRODUCT may be used and transferred
only as part of that single product package and may not be separated for use on
more than one computer.
4. COPYRIGHT. All title, including but not limited to copyrights, in and to the
SOFTWARE PRODUCT and any copies thereof are owned by E-City or its suppliers.
All title and intellectual property rights in and to the content which may be
accessed through use of the SOFTWARE PRODUCT is the property of the respective
content owner and may be protected by applicable copyright or other intellectual
property laws and treaties. This ▇▇▇▇ grants On Alert no rights to use such
content. All rights not expressly granted are reserved by E-City.
5. U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE PRODUCT is provided with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject
to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted
Rights at 48 CFR 52.227-19, as applicable. Manufacturer is E-City Software, Inc.
6. EXPORT RESTRICTIONS. On Alert agree that On Alert will not export or
re-export the SOFTWARE PRODUCT to any country, person, entity or end user
subject to U.S.A. export restrictions. Restricted countries currently include,
but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan,
and Syria. On Alert warrant and represent that neither the U.S.A. Bureau of
Export Administration nor any other federal agency has suspended, revoked or
denied On Alert export privileges.
7. NO WARRANTIES. E-City expressly disclaims any warranty for the SOFTWARE
PRODUCT. THE SOFTWARE PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED "AS IS"
WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE ENTIRE RISK ARISING
OUT OF USE OR PERFORMANCE OF THE SOFTWARE PRODUCT REMAINS WITH ON ALERT.
8. LIMITATION OF LIABILITY. In no event shall E-City or its suppliers be liable
for any damages whatsoever (including, without limitation, damages for loss of
business profits, business interruption, loss of business information, or any
other pecuniary loss) arising out of the use of or inability to use the SOFTWARE
PRODUCT, even if E-City has been advised of the possibility of such damages.
Because some states and jurisdictions do not allow the exclusion or limitation
of liability for consequential or incidental damages, the above limitation may
not apply to On Alert.
[GRAPHIC OMITTED]
MISCELLANEOUS
This ▇▇▇▇ is governed by the laws of the State of Oklahoma.
EXHIBIT B
E-CITY TRADEMARKS AND SOFTWARE
E-City Software
TaxiDispatch
3D CityMap
Cartographics
3D HealthMap
3D DefenseMap
2D CityMap