ARGOS TECHNOLOGIES, INC.
LICENSE AND MARKETING AGREEMENT
ARGOS TECHNOLOGIES, INC., a Delaware Corporation having its principal place of
business at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xx. 00000, ("LICENSOR") and
ARGOS 2000, INC. .a Delaware Corporation having its principal place of business
at 2815 Xxx Neck Road, Xxxxxxx, MD. 21619 ("LICENSEE"), in consideration of the
mutual promises herein contained, agree as follows:
1. APPOINTMENT
1.1 General. LICENSEE accepts, subject to all the terms and conditions of this
Agreement, an exclusive, non-transferable, License, throughout the world,
to market a fully automated policy administration system designed for the
auto insurance industry consistent with the document attached hereto and
referred to as Exhibit 1 ("System"). The System consists of certain
computer software, documentation, and associated information, which is year
2000 compatible.
The LICENSEE will be expected to attain a minimum sales commitment of ten (10)
units on or before June 30, 1999 and an additional ten (10) units on or before
June 30, 2000. If such total commitment is not satisfied within the time period
prescribed herein, the License the subject of this Agreement, shall continue to
be an exclusive, non-transferable License, subject to the additional
compensation provisions contained in paragraph 5.2 of this Agreement.
1.2 Sublicensing Agreements. The LICENSEE can appoint secondary LICENSEES
within the territory to market the System, with the written permission of
the LICENSOR, not to be unreasonably withheld, upon such terms and
conditions as LICENSOR shall specify. All Sublicensing Agreements will
terminate with the termination of this Agreement for any reason whatsoever.
2. LICENSES
In consideration of the sums payable by the LICENSEE pursuant to this Agreement
and specified in the exhibits attached hereto, LICENSOR grants to LICENSEE, and
LICENSEE, in consideration of such grant, hereby accepts, on the terms and
conditions set out in this Agreement, an exclusive license (I) to
demonstrate, market, and promote the System and materials throughout the world,
and (2) to Sublicense the Licensed System and Materials to End-Users located
throughout the world for use solely in accordance with the terms and conditions
agreed to by LICENSOR.
3. THE LICENSEES OBLIGATION.
3.1 Basic Requirements/Best Efforts, etc. The LICENSEE shall use its best
efforts to promote vigorously and aggressively the System as well as the
Sublicensing opportunities in the territory.
3.2 Service. The LICENSEE shall provide primary service for End-Users,
including assistance in installation and use. The LICENSEE shall provide
this service to the customer, and such services are to be provided at the
LICENSEES sole cost and expense.
3.3 Financial Commitment. The LICENSEE shall employ, in connection with
fulfilling its obligation under this Agreement, such net worth and working
capital as may be required to perform its responsibilities.
The LICENSEE shall be solely responsible for all its costs, salaries and other
expenses incurred in connection with the performance of its obligations under
this Agreement. LICENSOR has no liability, obligation or responsibility thereof.
3.4 Minimum Sales Commitment. The LICENSEE must attain a minimum sales
commitment of ten (10) units on or before June 30, 1999 and an additional
ten (10) units on or before June 30, 2000. If such total commitment is not
satisfied within the time period prescribed herein, the License the subject
of this Agreement, shall continue to be an exclusive, non-transferable
License, subject to the additional compensation provisions contained in
paragraph 5.2 of this Agreement.
3.5 The rights, benefits, duties, and obligations granted to LICENSEE hereunder
are personal to LICENSEE, and the Agreement may not be sold, transferred or
assigned to any third party without the express written consent of
LICENSOR, such consent not to be unreasonably withheld. Any attempted sale,
transfer, or assignment without such consent shall be null, void, and of no
effect.
3.6 LICENSEE acknowledges that the System is a confidential and commercially
valuable proprietary product of LICENSOR, and agrees to keep the System
confidential and not to disclose it, in full or in part, to any third
party, except when such disclosure is necessary to the marketing,
exploitation and use of the System, for which rights are granted hereunder,
and only upon the execution of a Non-Disclosure Agreement between the
LICENSEE and the potential client or customer. LICENSEE agrees, in
furtherance of this provision, to exercise at least the same degree of care
with respect to the
System as it exercises with respect to its own data, records, information,
materials and processes which it deems to be confidential and proprietary
in nature.
3.7 Pricing. The LICENSEE shall establish its own pricing so as to be
consistent and competitive with other such products in the market place.
However, in no event shall the price per unit for the System be less than
$150,000 on the first three (3) units sold, $175,000 on the next five (5)
units sold, and $200,000 on all subsequent sales.
3.8 LICENSEE hereby represents that it has performed the necessary, appropriate
and adequate due diligence and that the System, and all relevant
documentation, meets the specifications necessary for the use intended by
LICENSEE. LICENSEE acknowledges that LICENSOR does not warrant the result
of any services hereunder, nor does it warrant that any or all failure,
defects or errors in the System or Materials will be corrected, nor does it
warrant that the functions contained in the System will meet the LICENSEE'S
or Sub-Licensee's requirements.
3.9 LICENSEE shall make available to the LICENSOR any changes to the software
technology developed by the LICENSEE, at no cost to the LICENSOR. All
operating manuals and sales literature shall be provided by the LICENSEE at
no cost to the LICENSOR. Ownership of all changes made to the System shall
remain with the party paying for and making such changes.
4. LICENSOR'S OBLIGATIONS AND WARRANTIES
4.1 LICENSOR shall provide the System as delineated in paragraph 1.1 and all
associated software technology and completed documentation relative
thereto.
4.2 Warranties. For a period of thirty (30) days after delivery to the
LICENSEE, of the master programs, software, and all completed documentation
("Warranty Period"), all of which have been delivered, and are satisfactory
to LICENSEE. LICENSOR warrants to the LICENSEE that the System will
substantially conform to the specifications of the System set forth in the
relevant LICENSOR program documentation then in effect, when used in
accordance with the materials. The LICENSEE agrees that LICENSOR'S sole
liability and the LICENSEE'S sole remedy for defects in the System after
the date of this Agreement shall be that during the "Warranty Period"
provided for in this section, LICENSOR will use its most reasonable efforts
to correct any failure of the System to substantially conform to such
specifications, which LICENSOR'S diagnosis indicates is proximately caused
by a software "bug" in the code of the most recently issued unaltered
version of the System. After expiration of the "Warranty Period" set forth
in this section, LICENSOR will make available to the LICENSEE without
charge any bug fixes which it may develop.
4.3 Exclusions. Except for the express warranty section in 4.2 above, LICENSOR
does not make any express or implied warranty with respect to the System or
Materials, including without limitation any implied warranty of
merchantability or fitness for a particular purpose; and the express
warranty stated above is in lieu of all liabilities or obligations of
LICENSOR for any damages arising out of or in connection with the delivery,
use or performance of the System or Materials.
LICENSOR does not warrant the result of any services provided by it hereunder,
nor does it warrant that any or all failure, defects or errors in the System or
Materials will be corrected, nor does it warrant that the functions contained in
the System will meet the LICENSEE'S or any End-User's requirements.
4.4 Limitations of Liability. The LICENSEE agrees that the liability of
LICENSOR, if any, including, but not limited to, liability arising out of
contract, negligence, strict liability in tort, or warranty, shall not
exceed the lesser of $25,000 or fifty (50.0%) percent of the royalty
amounts actually paid hereunder. Apart from the warranties expressly made
in this Agreement, LICENSOR makes no warranties, express or implied,
concerning the capabilities, performance, specifications or characteristics
of the System.
5. TIME AND PAYMENT BY LICENSEE.
5.1 In consideration of the mutual promises made by the parties, LICENSEE,
agrees to pay to LICENSOR a royalty equivalent to ten (10.0%) percent of
the gross revenue derived from the sale of the Licensed Property (The
System). Payment shall be made by LICENSEE within fifteen (15) days from
the collection of any monies from a third party as it relates to the sale
of the Licensed Property.
5.2 LICENSEE hereby warrants and represents that it will guarantee the minimum
sales performance contained in paragraphs 1.1 and 3.4 by providing LICENSOR
with collateral and a security interest in 150,000 shares of Synergy 2000
Inc. common stock. In the event LICENSEE does not sell ten (10) units of
the Licensed property prior to June 30, 1999, at a price consistent with
the terms and conditions of this Agreement, LICENSOR will receive as
additional compensation, 75,000 shares of Synergy 2000 Inc. common stock
currently being held as collateral. In the event LICENSEE does not sell ten
(10) additional units or a total of twenty (20) units prior to June 30,
2000, at a price consistent with the terms and conditions of this
Agreement, LICENSOR will receive as additional compensation, an additional
75,000 shares of Synergy 2000 Inc. common stock being held as collateral.
The stock being held as collateral will be issued in the name of ARGOS
TECHNOLOGIES, INC., within sixty (60) days from the execution of this
Agreement.
LICENSEE and LICENSOR hereby agrees to execute the necessary paperwork and
perform the necessary duties to insure that LICENSOR'S security interest in the
150,000 shares is properly perfected. LICENSOR and LICENSEE shall designate a
party of their choosing to hold the collateral with the necessary letter of
instructions.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Title. Title to and ownership of the Licensed Programs (the System) and
Materials shall at all times remain with the LICENSOR.
6.2 Notices and Legends. The LICENSEE shall reproduce, in corresponding
locations on and in any partial or complete copies of the Licensed Programs
(The System) and Materials, any proprietary notice or legend which the
Licensed Programs or Materials contained when received by the LICENSEE.
6.3 Use of Trademarks and Trade Names. Each party acknowledges and agrees that
no right, title, or interest shall be acquired in the name, service marks,
or trademarks of the other party or any of its affliates, and that upon
termination of this Agreement, all use of same by each party shall cease,
except as may be otherwise expressly authorized in writing. LICENSEE
acknowledges that "ARGOS", and any other name having the reference of
"ARGOS" contained in its name, belongs exclusively to LICENSOR.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall expire on the tenth anniversary of the Effective
date, unless it has been terminated earlier pursuant to any provisions of
this Agreement. Notwithstanding the preceding sentence, this Agreement may
be extended for successive one-year periods, on the same terms and
conditions then contained herein, by written agreement of the parties.
7.2 TERMINATION. This Agreement may be terminated, prior to the expiration of
its term:
By either party, if the other party has materially breached its obligations
under this Agreement and if the defaulting party has not cured such default
within thirty (30) days following the date of which the non-defaulting party has
given written notice specifying the facts constituting the default;
By LICENSOR, effective immediately and without any requirement of notice, if
LICENSEE files for or consents to an assignment for the benefit of creditors,
files a petition in bankruptcy or liquidation, or is adjudicated bankrupt or
insolvent, or takes similar actions under laws of any jurisdiction for the
general benefit of
creditors or an insolvent or financially troubled debtor, or has sold its
business to a third party;
By LICENSOR, immediately upon the transfer of control of the LICENSEE, wherein
more than fifty (50.0%) percent of the outstanding common stock of LICENSEE
changes hands.
7.3 Effect of Termination. Upon the expiration or termination of this Agreement
for any reason, all rights and obligations of the parties under this
Agreement shall cease, except as follows:
The LICENSEE'S liability for royalties, fees, and other charges accrued prior to
the termination date shall not be extinguished by the expiration or termination
of this Agreement, and such amounts shall be immediately due and payable.
The LICENSEE shall have no further right to use the Licensed Programs or
Materials, or to use LICENSOR'S trademarks, and immediately after the
termination or expiration date, the LICENSEE shall return to LICENSOR, or
destroy, at LICENSOR'S discretion all originals and copies of the Licensed
Property and Materials, including all compilations, translations and partial
copies, whether or not modified or merged into other software documents.
The termination will not affect the right of the existing End-User Licensees to
use the Licensed Property and Materials pursuant to the terms of the Perpetual
License Agreement, if applicable.
The provisions of Sections 4.2, 4.3, 5, 5. 1, 5.2 6, and 8 shall survive the
termination of this Agreement. In addition, should this Agreement be terminated
for any reason other than the material breach by the LICENSOR, which has not
been cured pursuant to paragraph 7.2, the 150,000 shares being held as
collateral pursuant to paragraph 5, 5.1 and 5.2 of this Agreement, shall
immediately become the sole and exclusive property of the LICENSOR.
7.4 No Compensation Upon Termination. Upon the expiration or termination of
this Agreement in accordance with its terms, LICENSOR shall have no
obligation to the LICENSEE or to any employee, agent or representative of
the LICENSEE for compensation or for damages of any kind, whether on
account of the loss by the LICENSEE, or by such employee, agent or
representative of present of prospective sales, investment, compensation or
goodwill. The LICENSEE, for itself and on behalf of each of its employees,
agents and representatives, hereby waives any rights which may be granted
to it or them under the laws and regulations of the Territory or otherwise
which are not granted to it or them by this Agreement. The LICENSEE hereby
indemnifies and holds LICENSOR harmless from and against any and all
claims, costs, damages and liabilities whatsoever asserted by any employee,
agent or representative of the LICENSEE
1 3. SEVERANCE
In the event of any provisions of this Agreement being declared by any judicial
or other competent authority to be void, voidable, illegal or otherwise
unenforceable or indications of the same are received by either parties from any
relevant authority, the parties shall amend that provision in such reasonable
manner as achieved the intention of the parties without illegality.
14. PROPER LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of
the State of California, in every particular including formation and
interpretation and shall be deemed to have been made in California. Any
proceedings arising out of or in, connection with this Agreement may be brought
in any Court of competent jurisdiction in California.
15. NOTICES
Any notice to be served on either of the parties by the other shall be sent by a
pre-paid recorded delivery or registered mail or by telex or by telefax or by
electronic mail and shall be deemed to have been received by the addressee
within 72 hours of posting or 24 hours sent by telex or telefax or by electronic
mail to the correct number or address of the addressee.
16. HEADINGS
Headings contained in this Agreement are for reference purposes only and shall
not be incorporated into this Agreement and shall not be deemed to be any
indication of the meaning of the clauses and sub-clauses to which they relate.
17.RELATIONSHIP BETWEEN THE PARTIES
It is expressly understood and agreed that nothing contained herein shall
constitute either LICENSOR or LICENSEE as the partner, agent, or legal
representative of the other, for any purpose whatsoever.
18. ENTIRE AGREEMENT
This Agreement supersedes all prior communication and agreements between the
parties relating to the subject matter of this Agreement and constitutes the
full understanding between the parties with respect thereto. No waiver of any
provision of this Agreement or of any breach and no modification or supplement
hereto shall be binding, unless in writing and signed by both parties.
IN WITNESS HEREOF, the parties have caused the signatures of their duly
authorized officers to be hereunto affixed on this the 25th day of June, 1998.
Accepted By:
ARGOS TECHNOLOGIES, INC. (LICENSOR)
BY:
(Authorized Officer)
Name :
Title:
Address: 000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xx. 90502
ARGOS 2000, INC. (LICENSEE)
BY :
(Authorized Officer)
Name:
Title:
Address: 0000 Xxx Xxxx Xxxx
Xxxxxxx, XX. 00000
