THIS LICENSING AND PUBLISHING AGREEMENT
Exhibit
10.1
THIS
LICENSING AND PUBLISHING AGREEMENT
(“Agreement”) is effective as of the 17th day of January 2008 (“Effective
Date”), by and between Collexis Holdings, Inc. (“Collexis”), a Nevada
corporation with offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇,
and
VersusLaw, Inc. (“VersusLaw”), a Washington corporation with offices located at
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I.
WHEREAS,
Collexis operates electronic research entities in Europe and the United States,
which provides access to various collections of medical, legal, and
pharmaceutical research materials for its clients; and
II.
WHEREAS,
VersusLaw operates an electronic legal research service from Redmond Washington,
which provides access to various collections of primary legal resource materials
for its clients; and
III.
WHEREAS,
Collexis desires to license and include certain of VersusLaw’s legal-related
collection of opinions for use in Collexis' own databases.
NOW
THEREFORE,
in
consideration of the mutual promises herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties agree as follows:
Part
1.
Definitions.
| 1.1 Licensed Data. |
“Licensed
Data” shall mean a copy of the unique compilation of certain unenhanced
public domain documents or case content of Versuslaw database enumerated
in Exhibit
A
and delivered to Collexis as set forth in Section 6.1 in accordance
with
the terms of this Licensing
Agreement.
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| 1.3 Collexis. |
“Collexis”
means Collexis Holding, Inc., its subsidiaries, successors and assigns.
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| 1.4 VersusLaw. |
“VersusLaw”
means VersusLaw, Inc., its subsidiaries, successors and
assigns.
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Part
2.
Grant of License.
2.1
Grant. Upon and coincident with the Closing, VersusLaw grants to Collexis the
non-exclusive, transferable, perpetual, irrevocable, fully paid, worldwide
right
and license to use the Licensed Data for any use whatsoever, including, without
limitation, to compile or recompile; combine, mix or commingle with other data;
digitize; reproduce or copy; or publish, store, market or distribute, by
whatever means whatsoever, with full rights of sublicense for any purpose and
under any terms whatsoever. It is understood and agreed that any data, case
content, information or other such material constituting Versuslaw database,
other than the Licensed Data in Exhibit A (the “Non-Licensed Data”), is outside
the scope and boundaries of this Agreement; such Non-Licensed Data includes,
but
is not limited to, editorial products of VersusLaw, editorial products of third
parties and any products which VersusLaw licenses from third
parties.
2.1(b):
In furtherance of, and without limitation to the rights granted under Part
2.1,
Collexis shall have the specific right(s):
2.1(b)(1):
To advertise, market, distribute, license and sublicense for use, pledge,
encumber, assign, lease and rent copies of the Licensed Data, directly or
indirectly, for distribution to end users; and
2.1(b)(2):
To permit customers of Collexis, or its subsidiaries, to download, print or
electronically copy Licensed Data.
Part
3.
License Fee.
3.1
Collexis hereby agrees to pay to VersusLaw license fees pursuant to this
Agreement and upon execution of this Agreement (the "Closing") in the amount
of
One Million Three Hundred Eighty Five Thousand Dollars ($1,385,000) for the
Licensed Data, which shall be paid as follows:
| (a) |
Seven
Hundred Fifty Thousand Dollars ($750,000), which amount shall be
payable
in cash as follows:
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| (i) |
One
hundred thousand dollars ($100,000) at Closing,
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(ii)
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Six
hundred fifty thousand dollars ($650,000) thirty (30) days thereafter,
which amount shall be evidenced by a promissory note and security
agreement in the form of Exhibit
B
attached hereto (the "Secured Note") delivered at the Closing
and shall be
secured by accounts receivable of Collexis as set forth in the
Secured
Note; and
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| (b) |
Six
hundred thirty five thousand dollars ($635,000) in shares of Collexis
common stock at Closing, which for purposes hereof shall result in
the
subscription for and issuance of eight hundred forty six thousand
six
hundred and sixty six (846,666) shares of Collexis common stock,
based on
an agreed value of seventy-five cents ($0.75) per share (the "Stock")
pursuant to the Investor Letter (as defined below); provided,
however,
that VersusLaw shall have first completed Collexis’ Investor Letter, a
copy of which form is attached hereto and marked as Exhibit
C (the “Investor Letter”).
Collexis shall instruct its transfer agent to deliver to VersusLaw
a
certificate for the Stock promptly after Closing. The parties agree
that
the Stock shall be “restricted securities” under Rule 144. Collexis
represents and warrants that it has made as of the Closing and shall
make
thereafter all necessary filings with the SEC as required under the
Securities Act of 1933 and to take such other actions as are reasonably
requested by VersusLaw, including, without limitation, the issuance
of
legal opinions if required, so as to permit VersusLaw to sell the
Stock in
accordance with such Rule.
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Part
4.
Copyright, Source, and Methodology.
4.1
Copyright. Collexis acknowledges and agrees that Versuslaw claims only a
compilation copyright with respect to the Licensed Data. Collexis acknowledges
that VersusLaw does not claim copyright protection for any data subject to
this
Licensing Agreement that originated as a decision from any court, irrespective
of the databasing methods employed to maintain said decisions. Furthermore,
VersusLaw acknowledges and agrees that it cannot and will not assert a claim
of
copyright against any new compilation(s) Collexis might create by combining
the
Licensed Data with other data and/or adding enhancements of Collexis' own
design, methodology
and/or
implementation, all of which actions Collexis is
hereby expressly granted the right to undertake if it so elects.
4.2
Source and Methodology. Without limiting the warranties contained in Section
4.1
and 5.1 of this Agreement below, VersusLaw hereby warrants that in compiling
and
amassing the primary research materials for the Licensed Data under this
Licensing Agreement, it receives said material through: a) downloads from
courts, b) uploads from courts, c) scanning hard copy opinions from courts
and
official sources, and d) keyboarding opinions received from courts and official
sources. VersusLaw further warrants that as to all other materials it does
or
may provide under the terms of this Licensing Agreement, the above is an
accurate description of the methodologies employed to source all primary
materials.
Part
5.
Warranties, Disclaimer, and Infringement, and Indemnification.
5.1
Warranties.
5.1(a)
Each party warrants and represents that:
1) it
has
the full and exclusive right and power to enter into and perform according
to
the terms of this Agreement, and that it has all rights necessary to grant
the
rights granted herein, and
2) all
corporate action on the part of its officers, directors and members that is
necessary for authorization, execution and delivery of this Agreement and the
performance of its obligations hereunder has been duly taken.
5.1(b)
Versuslaw represents and warrants that it has good and marketable title to
the
Licensed Data and has the right to license the Licensed Data in accordance
with
the terms of this Licensing Agreement, free and clear from any and all claims
by
third parties. To the best of Versuslaw's knowledge, Versuslaw has not
interfered with, infringed upon, misappropriated or otherwise come into conflict
with any copyright or intellectual property rights of third parties in creating
and compiling of the unique compilation that constitutes the Licensed Data
or
its use or licensing hereunder.
5.1(c)
VersusLaw hereby represents and warrants to Collexis that, through the use
by
it, the
media
on which the Licensed Data are furnished shall be free from defects in materials
and workmanship under normal use; and it will
not
receive or experience any virus, worm, trap door, back door, timer, clock,
counter or other limiting routine, instruction, design or device that would
erase any of its respective data or information or otherwise cause any
respective systems to become inoperable or incapable of being used in the full
manner for which it was design and created (collectively, a "Disabling Code.)
In
the event a Disabling Code is identified, VersusLaw shall take all steps
necessary, at no additional cost to Collexis and within five (5) days of notice
thereof, to restore and/or reconstruct any and all Licensed Data lost as a
result of such Disabling Code.
5.2
Disclaimer of All Other Warranties
5.2(a)
Except for the express warranties set forth in this Licensing Agreement,
VersusLaw provides the Licensed Data to Collexis on an “as is” basis, without
warranty of any kind,
either
express or implied, including, but not limited to, the implied warranties of
merchantability and fitness for a particular purpose and without limitation
as
to the price, market position, distribution channels, and name of the products
of the parties, as well as the media and platforms on which products will be
available. Further, VersusLaw does not warrant, guarantee, or make any
representations regarding the use, or the results of the use, of any materials
licensed hereunder in terms of accuracy, reliability, currentness, or otherwise.
The entire risk as to the result and performance of the Licensed Data is hereby
assumed by Collexis and each successor-in-interest or assign thereof. It is
understood and agreed by the parties that Collexis is relying entirely on its
inspection of the Licensed Data as provided for in Section 6.2 below in
accepting the Licensed Data "as is" in accordance with the terms of this
Section.
5.3
Infringement and Indemnification
5.3(a)
Each Party acknowledges and understands that it is the intent of Collexis to
change,
modify, enhance, otherwise customize and combine the Licensed Data with other
data owned or licensed by Collexis for optimum usage and performance on
Collexis' or its subsidiaries’ online service and/or web site. As a result of
these intended and/or anticipated changes, each party shall indemnify and hold
the other harmless (and the other’s directors, officers, employees and agents),
from and against any liability, loss, claim, demand, cost, attorneys’ fees, or
other expenses reasonably and actually incurred that may arise as a result
of a
claim or other action by a third party arising out of or in connection with
the
breach of the representations and warranties of this Agreement.
5.3(b) The
representations and warranties contained herein are continuous in nature and
shall be deemed to have been made by the proponent thereof upon and coincident
with the execution of this Agreement.
5.3(c)
The representations and warranties contained within Parts 4 and 5 are the only
warranties of any kind, either express or implied given by the parties hereto.
VersusLaw specifically disclaims all express or implied warranties of
merchantability or fitness for a particular purpose. In no event shall either
party, their affiliates or suppliers, be liable to another party, its affiliates
or any other third party claiming directly or through any of the foregoing
parties, for any consequential, incidental, indirect, economic, punitive or
other damages of any kind resulting from the use of the Licensed Data,
including, but not limited to, loss of revenues, profits or goodwill, even
if
the party causing such damages had been advised of the possibility of such
damages.
Part
6.
Delivery of Data.
6.1
VersusLaw shall deliver the Licensed Data to Collexis in an electronic format
acceptable for use by Collexis commencing with the Closing; with the proviso
that VersusLaw shall have received at Closing the cash and stock payments in
accordance with Sections 3.1(a)(i) and (b). At the election of Collexis, the
methodology of delivery may include, but is not limited: a) delivery of data
on
large capacity hard drives, CD -ROM, DVD, data tape, or a site commonly referred
to as an “FTP” site.
6.2
Upon
delivery of data subject to this Agreement, both initial and any ongoing
delivery, Collexis shall have ten
(10)
days to
review the delivered data, perform preliminary integration of
the
data
into Collexis' own database, advance whatever enhancements it intends to add
(if
any), and otherwise satisfy itself that the data it has received complies with
the terms and conditions of this agreement. Should Collexis claim that the
Licensed Data does not comply with the terms of this Agreement, it shall notify
VersusLaw of the reason it rejects such data, whereupon VersusLaw shall make
reasonable commercial efforts to satisfy the objections of Collexis or, if
VersusLaw disputes Collexis' claim, the parties shall attempt to negotiate
a
settlement of any disagreements concerning the delivery of the Licensed Data
prior to undertaking any remedies.
Part
7.
Marketing and Sale Provisions
Subject
to the terms and conditions of this Agreement and any modifications thereof,
Collexis shall have the sole discretion to set and determine all terms and
conditions for access by users to the Licensed Data and pricing for access
thereto including, without limitation, the price, market position, distribution
channels, name(s) of products and/or services, as well as the media and
platforms on which the products and/or services will be available.
Part
8.
Term
VersusLaw
acknowledges and agrees that, subject to the terms of this Licensing Agreement,
the license of the Licensed Data hereunder shall be for a perpetual term to
Collexis, without further payment beyond that called for in Part 3
above.
Part
9.
Confidential Information.
9.1
Each
party agrees not to disclose to any third party:
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(a)
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any
information regarding the other party’s business (excluding the Licensed
Data), including, without limitation, marketing plans and financial
information, that has been designated in writing at or before the
time of
such disclosure as “Confidential
Information”;
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(b)
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any
correspondence, e-mail, cable, telex, telefax, or other communication
between the parties regarding the existence of this Agreement, or
any
terms, conditions, or provisions thereof;
or
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(c)
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This
Agreement;
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provided,
however, the foregoing restrictions shall not prohibit either party from
disclosing any such information or this Agreement if such information or this
Agreement:
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1)
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is
previously known to the receiving
party,
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2)
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is
or becomes publicly known through no wrongful act of the receiving
party,
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3)
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is
received by the receiving party from a third party without restriction,
or
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4)
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is
required to be disclosed by law or court order (the party required
to
disclose under this provision shall, prior to any disclosure, give
the
other party prompt notice of the intended disclosure and opportunity
to
make formal protest to the authority requiring disclosure) or as
required
by qualified private investors during a formal due diligence
process.
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Part
10.
Relationship of the Parties.
The
rights and powers granted hereunder are solely those of a licensee. Nothing
in
this Agreement
shall be construed as making either party the partner, joint venturer, agent,
employer, or employee of the other. Neither party shall have the authority
to
make any statement, representation or commitment of any kind, or to take any
action which shall be binding on the other, except as provided for herein or
authorized in writing by the party to be bound.
Part
11.
Taxes.
All
sales, use, service, or other taxes, howsoever levied, and whether or not based
on the license granted under this Agreement are the responsibility of the
individual parties.
Part
12.
Remedies Cumulative.
In
the
event a party is in default hereunder, the non-breaching party may elect to
not
perform its obligations under this Agreement, in addition to any other right
or
remedy available at law or in equity. The parties further agree that remedies
at
law may be inadequate to protect against a breach of this Agreement, and consent
to the granting of injunctive relief, whether temporary, preliminary or
final.
Part
13.
Notice.
Each
notice, request or demand, or other communication or document to be given or
made hereunder, shall be given in writing, by letter, telefax, or telex
addressed as follows:
If
to
Collexis:
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With
a
copy to:
▇▇.
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▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, LLP
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Fax:
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If
to
VersusLaw:
VersusLaw,
Inc.
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or
to
such other address as a party shall have specified to the other in writing
in
accordance with this part 13. All notices or other communications by letter
or
personal delivery shall be deemed to be duly given or made when delivered;
all
notices or other communications transmitted by wire,
telex
or
telefax shall be deemed to be duly given or made when dispatched, provided
that
the recipients answer back or confirmation relating thereto has been received.
Notices or other communications received on Saturday, Sunday, public holiday,
or
after 5:00 p.m. shall be deemed to have been received on the next following
working day in the place received.
Part
14.
Waiver.
A
single
waiver of any provision of this Agreement does not operate as a continuing
or
ongoing waiver of any rights that either party may have against the other
party.
Part
15.
Governing Law.
This
Agreement and all actions contemplated shall be governed by and construed in
accordance with the laws of the State of Washington without regard to the
principles of conflicts of law. The parties agree that venue for any action
to
enforce this Agreement shall be brought in the Federal District courts of the
Western District of Washington, Seattle, Washington.
Part
16.
Attorneys Fees.
In
the
event of a lawsuit between the parties, the substantially prevailing party
shall
be entitled to an award of its attorneys’ fees and expenses in addition to any
other rights and remedies to which it may be entitled.
Part
17.
Force Majeure.
Neither
party shall bear any responsibility or liability for any losses arising out
of
any delay or interruption of its performance of obligations under this Agreement
due to any act of God, act of governmental authority, or due to war, flood,
civil commotion, labor difficulty, severe or adverse weather conditions, lack
or
shortage of electrical power or any other cause beyond the reasonable control
of
the party delayed.
Part
18.
Assignment.
Neither
party may assign this Agreement in whole or in part without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, either party may assign or transfer the entirety
of (a) this Agreement to any person who acquires, controls, is controlled by
or
under common control with such party as long as such party agrees in writing
to
assume and perform all of the obligations of the assigning party under this
agreement or (b) the Licensed Data.
Part
19.
Entire Agreement/Amendment.
This
Agreement sets forth the entire understanding as between the parties relating
to
the subject matter contained herein and merges all prior discussions between
them with respect to that subject matter. No modification or amendment of this
Agreement shall be effective unless it is set forth in writing duly executed
by
or on behalf of both parties.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date, above.
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VersusLaw,
Inc.
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By:
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/s/
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By:
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/s/
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President
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President
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