EXHIBIT 10(a)
AGREEMENT
This Agreement is entered into as of this 15th day of
December, 1999, between RecycleNet Corporation ("Company")
and Xxxx Xxxxxx ("PR").
WITNESSETH:
WHEREAS; PR has developed certain computer related
software known as the Rhodium WebWeaver ("program") which is
designed to operate from a secure central processing unit
and which can be customized to the particular needs of a
person utilizing the Internet system for business and
commercial purposes; and
WHEREAS; Company desires to obtain the non-exclusive
distribution rights to market and license the use of the
program; and
WHEREAS; PR desires to grant a non-exclusive license
to Company to market and distribute the program to third
parties.
NOW, THEREFORE, it is agreed by the parties hereto as
follows:
1. PR hereby grants to Company, and Company hereby
accepts, subject to payment of the license fees and other
charges, as applicable, a personal, non-exclusive, and non-
transferable license to use the licensed software identified
as the program hereinabove during the term hereof and to use
any additional documentation provided by PR to Company
during the term hereof in support of the use of the licensed
program. This license applies only to use of the program
through the central processing unit of Company. Any other
use will require a separate license, including additional
fees and charges, to be negotiated between the parties prior
to any additional use of the program other than as
contemplated herein.
2. The license fee for the license granted hereunder shall
be the sum of US$1,000.00 for each use of the program that
Company sells, grants, distributes, or otherwise transfers
to a third party for use of the program through Company's
server and central processing hardware. The fee is due and
payable no later than ten days after Company has sold or
otherwise transferred a license to use the program to a
third party. All payments in arrears shall bear interest at
the rate of 1.5% per month until paid in full.
3. Licensee shall pay all taxes based on or in any way
measured by this Agreement, the program or any portion
thereof, or any services related thereto, excluding taxes
based on PR's net income, but including personal property
taxes, if any.
4. Unless otherwise terminated or cancelled as provided
herein, the term of this Agreement and of the license
granted herein shall commence on the effective date hereof
and shall continue until Company discontinues the use of the
program on the Company's central processing unit or
otherwise ceases doing business as an application service
provider for other persons utilizing the internet for
business and/or commercial purposes.
5. Company acknowledges that the program is PR's exclusive
property and constitutes a valuable asset of PR. Company
shall not disclose or make available to any third parties
the contents or instructions of the program without PR's
prior written consent. Further, upon any cancellation,
expiration, or termination of this Agreement, Company agrees
that it will destroy, cancel and otherwise obliterate all
data and instructions relating to the program and insure
that the program cannot be used or copied by any person from
Company's central processing unit.
6. Company may reproduce the program for use only on its
central processing unit and may do so as necessary and
required to accommodate persons acquiring a license or lease
to use the program through Company. Further, Company may
modify the program and merge it into existing software,
provided the program and all portions thereof shall continue
to be subject to the terms of this Agreement. Upon any
termination, cancellation or expiration of this Agreement,
Company shall have no right to use the original, modified,
or merged software constituting the program, or any portion
thereof.
7. Company shall have the sole and exclusive
responsibility for the installation and use of the program
for each person leasing or licensing the program through
Company. Company shall provide all technical support and
services under the terms and conditions of a separate
agreement and at Company's then current charges therefore.
8. PR warrants that the program, under normal use and
service, shall be free from defects in workmanship and
quality and will meet the needs of Company and it's lessees
or licensors. In the event of a failure or breach of this
warranty, PR's sole obligation shall be to replace the
program and/or provide technical services to attempt to
correct the failure; provided that Company shall give PR
detailed information regarding such failure and PR is able
to duplicate the same. Company acknowledges that the
program is complex, may not be error free, and that all
errors, if any, may not be correctable or avoidable.
9. Company shall be solely responsible for the use,
efficiency, and suitability of the program for each and
every person Company leases or licenses the program to,
based upon the specific needs and requirements of those
persons. Company acknowledges that it will customize the
program depending upon such needs and requirements and that
PR shall not be liable for any breach of the warranty set
forth herein if: (1) modifications are made to the program;
(2) the program is used with software or hardware that are
not supplied by PR or are not reasonably approved by PR upon
Company's request; or (3) the media for the program is
subject to misuse or abuse.
10. PR shall defend or settle, at his own expense, any
cause of action or proceeding brought against Company which
is based on a claim that the program infringes an US or
Canadian patent, copyright, trade secret or other
proprietary right. PR shall indemnify and hold Company
harmless against any final judgment, including any award of
attorneys fees, that may be awarded by a court of competent
jurisdiction against Company as a result of the foregoing;
provided that Company shall give PR prompt written notice of
such claim and shall provide PR with all reasonable
cooperation and information in Company's possession. If a
claim is made that the program infringes any US or Canadian
patent, copyright, trade secret or other proprietary right,
or PR believes that a likelihood of such a claim exists, PR
may, in his sole discretion, either procure for Company the
right to continue using the program, modify it to make it
non-infringing but continue to meet the specifications
therefore, or replace it with non-infringing software of
like functionality which meets the specifications for the
program; provided, however, if none of the foregoing is
reasonably available to PR, he may terminate/cancel the
license granted herein and require Company to cease using
the program.
11. PR may terminate/cancel this Agreement and any license
granted hereunder if: (1) Company fails to pay any license
fees or charges; (2) Company is in default of any material
provision of this Agreement and such default is not cured
within 30 days after PR gives Company written notice
thereof; or (3) Company becomes insolvent or seeks
protection, voluntarily or involuntarily, under any
bankruptcy law.
12. In the event of any cancellation/termination of this
Agreement or any license granted to Company hereunder, PR
may: (1) require that Company cease any further use of the
program or any portion thereof ; and (2) cease performance
of all of Company's obligations hereunder or to its lessees
or licensees without liability to PR.
13. The effective date of this Agreement shall be date set
forth above herein.
14. Any cause of action arising out of or related to this
Agreement must be brought no later than one year after the
same has accrued.
15. This Agreement is their sole agreement between the
parties relating to the subject matter hereof and supercedes
all prior understandings, writings, proposals,
representations, or communications, oral or written, or
either party. This Agreement can only be amended or modified
by a writing executed by the parties hereto. This Agreement
shall be interpreted in accordance with the substantive laws
of the State of Utah.
IN WITNESS WHEREOF, the parties have executed this
Agreement the day and year first above written.
XXXX XXXXXX
/s/ Xxxx Xxxxxx
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RECYCLENET CORPORATION
/s/_____________________
