LICENSE AND SERVICES AGREEMENT
THIS LICENSE AND SERVICES AGREMEENT (this "Agreement") is entered into
as of November 28th, 2007 ("Effective Date'), by and between Excel
Global, Inc., a Nevada corporation ("Licensee"), and Service
Technology, Inc., ("Licensor") (collectively the "Parties" and each a
"Party").
RECITALS
WHEREAS, Licensor is the developer and owner of certain social
networking software described more fully as Service Technology
networks;
WHEREAS, Licensee operates a client services business (the "service")
and offers such capability to its clients ("Clients") and desires to
license the Software Firm Licensor on a non-exclusive basis in general
but for its clients on an exclusive basis;
WHEREAS, in addition to licensing the Software, Licensor has agreed to
manage the implementation of the Software into Licensee's existing
platform, and to assist on an ongoing basis with the delivery of social
networking capability to Licensee's Clients;
WHEREAS, as part of the consideration for the license and services
provided to Licensee under this Agreement Licensee shall share 5%
profit with Licensor and to maintain said license Excel Global, Inc.
WHEREAS, the Parties wish to enter this Agreement for the licensing of
the Software and provision of the services in association therewith as
set forth more fully below.
NOW, THEREFORE, in consideration of the mutual promises, undertaking
and agreements below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
AGREEMENT
1. Grant of License.
Licensor herby grants to Licensee a license in perpetuity throughout
the Universe to the use Software on a non-exclusive basis. Should
Licensee exercise the license on a Client, the software in that
instance becomes a Sub-License to that Client.
2. Consideration
(a) Licensee shall agree to pay one payment of $50,000 on or before
December 31, 2008.
(b) Licensor shall receive 100,000 shares of restricted 144 common
stock upon the date of issue.
(c) For each of Licensee's Clients where Licensor provides the
Implementation Services (as defined below) Licensor shall be entitled
to 2% of the net profit from such Client, payable to Licensor on a
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quarterly basis. For the purposes of this Agreement, "profit" shall be
net and defined as revenues less reasonable business, legal and
technology expense with such expenses to be approved by Licensors board
of directors.
(d) Licensee shall provide Licensor a full and complete accounting
reflecting all reasonable expenses and the net profits when they are to
be paid.
3. Services.
3.1 Services Provided By Licensor
(a) Licensor will be prepared from the date of signing this Agreement
to deliver and install the software to Licensee so that it is fully
usable by Licensee with initial implementation to the point where it
can be used for Licensee's clients.
(b) In each instance where Licensee has a Client that requires the
customized implementation of the Software for that Client, and Licensor
has approved sales agreement between Licensee and Licensee client for
the use of Service Technology Software, Licensor agrees to provide the
following services consistent with the requirements of that Client:
Software implementation, updates and maintenance of the Software,
graphic design, and web hosting (where requested) (collectively
"Implementation Services").
(c) Licensor shall provide the implementation services to Licensee at a
rate per hour that covers Licensor's expenses provided that said
Implementation Service have been approved by the Board of Directors of
Licensee. Licensor fees shall not be greater than the prevailing
competitive market rate in the State of California at the time said
services are provided. Licensor shall invoice Licensee for the
implementation services on a monthly basis, with payment due 30 days
after receipt of such invoice by Licensee.
(d) Licensor shall maintain sufficient agreed staff levels and
resource levels to provide the Implementation Services on an ongoing
basis for Licensee's clients. Licensee shall be responsible for all
reasonable costs associated with the provisions of Implementation
Services.
(e) Licensor shall build building and hot - - (or another domain
identified by Licensee) for the purpose of marketing and informing
potential Clients of Licensee's business. This site shall not mirror
the Service Technology site in design and/or general appearance, but
can in textual content of serves. Licensee shall be responsible for
the costs of Licensor building and hosting of
000.xxxxxxxxxxxxxxxxxxxx.xxx (or another domain identified by Licensee)
for the purpose of marketing and informing potential clients of
Licensee's business.
(f) Prior to providing implementation services, Licensor shall provide
Licensee with a cost proposal and timeline for the provision of
Implementation Services. If the budget and timeline are agreed to by
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Licensee, both shall be adhered to be Licensor; provided, however, that
the timeline shall allow for reasonable delays. Licensor shall inform
Licensee of the likelihood of any delays that may cause deviation from
a timeline as soon as such information is known to Licensor.
3.2 Consultation and Services Provided By Licensee
(a) Licensee shall have employ persons to sell the offerings of the
Business to potential Clients.
(b) Licensee shall be the primary contact for Clients and shall be
responsible for Client account management.
(c) Licensee shall offer the services and products of the Business for
reasonable profit.
3.3 Mutual
(a) Licensee shall consult with Licensor to allow Licensor to assess
the services required by a Client so that Licensor can provide the
budget and timeline for the provision of the Implementation Services.
(b) Both Licensor and Licensee agree to use software provided by
Licensor called "BugTracker" to log all sales contacts. Neither party
will contact sales leads identified by the other for a period of 90
days after such identification.
4. Confidentiality and Non-Compete
(a) In providing the services under this Agreement, Licensor and
Licensee will be privy to non-public, proprietary Confidential
information. Said Confidential information shall include, but not be
limited to, trade secrets, know how, inventions, technologies,
processes, software programs, algorithms, designs, contracts, customer
lists, financial information, proprietary techniques, procedures,
product plans, sales and marketing plans, source codes and business
information. Confidential information shall be treated by the
receiving party as if it were that party's confidential information.
It is agreed that both parties to this Agreement will take reasonable
precautions to prevent any form of communication, disclosure, and/or
availability of said Confidential information by its officers,
directors, employees, contractors, consultants, subsidiaries, agents,
representatives, advisors, attorneys, bankers, heirs, assigns,
successors, their spouses and significant others. Confidential
information shall not include information that is (a) already known by,
or rightfully available to the parties herein by sources not related to
this Agreement or (b) available to the public.
(b) Licensee shall not reverse engineer, reverse compile, disassemble
or otherwise attempt to derive the source code of any of the Licensor's
software for any purpose, including but not limited to use by Licensee
and/or its clients.
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(c) Provided that Licensor is not in breach of this Agreement,
Licensee agrees not to implement, develop, or engage in software
development similar in type or services to the Software, or use any
other 3rd party solution.
5. Breach
5.1 Breach by Licensor
In the event that Licensor breaches this Agreement and fails to provide
the Implementation Services as set forth in this Agreement, Licensee
shall have the right to cancel contract with written notice within 60
days.
5.2 Breach by Licensee
In the event that Licensee is in breach of its obligations under
Section 3.1 of this Agreement, and such breach remains un-remedied by
Licensee sixty (6)) business days after Licensor delivers written
notice of such breach, then Licensor shall have the right to suspend
its obligation to provide the Implementation Services during the
pendency of such breach. Licensee shall return to Licensor all
confidential information, as set forth in sub paragraph 4(a), it has
received from Licensor under this Agreement. Further, Licensee shall
still be bound by the confidentiality terms in paragraph 4.
6. Representations and Warranties
(a) By Licensor. Licensor represents and warrants to Licensee that:
(i) it has the full power to enter into this Agreement, (ii) it has
full title and authority to distribute the Software as set forth herein
and perform its obligations hereunder; (iii) the execution of and
performance under this Agreement will not breach any oral or written
agreement with any third party or any obligation owed to any third
party; and (iv) the Software is not subject to, and does not infringe,
misappropriate or violate, any patent, copyright, trademark, trade
secret or any other third party proprietary or ownership rights.
(b) By Licensee. Licensee represents and warrants to Licensor that:
(i) it has the full power to enter into this Agreement; and (ii) the
execution of and performance under this Agreement will not breach any
oral or written agreement with any third party or any obligation owed
to any third party.
7. Indemnification
(a) Each Party shall indemnify, defend and hold harmless the other
Party and its officers, directors, employees, shareholders,
subsidiaries, affiliates, Licensors, agents, successors and assigns
from and against any third party claims, allegations, losses,
liabilities, fines, damages, settlements, expenses and costs
(including, but not limited to, attorneys' fees and court costs) which
arise out of or relate to a material breach of Section 6 of this
Agreement by the indemnifying Party. The Party to be indemnified
shall: (a) provide the indemnifying Party with prompt written notice of
any claim, suit or proceeding for which the indemnified Party is
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seeking indemnity; and (b) reasonably cooperate with the defense or
settlement negotiations, as the case may be, conducted by the
indemnifying Party.
(b) Except for liability for Breach of Section 4 (Confidentiality) and
except as specifically in section 6 (indemnification) Licensor shall
not have any liability for incidental, consequential, indirect, special
or punitive damages of any kind or for loss of revenue and/or business
arising out of or in connection with this Agreement regardless of the
form of the action, whether in contract, tort, strict product liability
or otherwise, even if any representative of Licensor has been advised
of the possibility of such damage; and in no event shall Licensor's
liability under this Agreement exceed the amount paid by Licensee to
Licensor under this Agreement.
8. Termination
(a) The term of this Agreement will in perpetuity from the effective
date, unless terminated earlier, pursuant to the terms of this
Agreement.
(b) In the event a party (1) becomes insolvent, (2) voluntarily files
or has filed against it a petition under applicable bankruptcy or
insolvency laws which such party fails to have released within thirty
(3) days of such filing, (3) proposes any dissolution, composition or
financial reorganizations with creditors or if a receiver, trustee,
custodian or similar agent appointed, or takes possession with respect
to all or substantial properties or businesses of such party, or (4)
such party makes a general assignment for the benefit of creditors, the
other party may terminate this Agreement by giving a termination
notice, which termination shall become effective ten (10) days after a
certified mailing.
(c) Either party shall have the right to terminate this Agreement if
the other is in material breach of any term or condition of this
Agreement and fails to remedy such breach as set forth in Paragraph 5.
9. General Provisions.
(a) Governing Law; Venue. This Agreement will be construed in
accordance with and governed by the laws of the State of California,
without regard to principles of conflicts of law. Each Party consents
to the exclusive venue of the courts of Los Angeles County, California,
to resolve any disputes, claims or actions arising out of this
Agreement.
(b) Amendment; Waiver. This Agreement may not be amended, modified,
waived or discharged except pursuant to a written instrument signed by
the Party against whom enforcement of such modification, waiver or
discharge is sought. The failure of either Party to exercise, or delay
in exercising any right or remedy under this Agreement in any instance,
shall not be construed as a waiver or relinquishment of said right or
remedy in any future instance.
(c) Notices. Any notices required or permitted hereunder shall be
given to the appropriate signatory below at the address specified
below, or at such other address or fax number as the receiving Party
shall specify in writing during the Term. Notice shall be deemed given
upon: (personal delivery, (ii) confirmation of receipt of facsimile
transmission, (iii) if sent by certified or registered mail, postage
prepaid, three (3) days after the date of mailing, or, (iv) if sent by
overnight delivery via a nationally recognized overnight courier, one
day after deposit with such courier.
(d) Severability. In the event that any provision of this Agreement is
for any reason void or unenforceable in any respect, such provision
shall be without effect to the extent of the unenforceability without
affecting such provision in any other respect and without affecting any
other provision.
(e) Entire Agreement. This Agreement is the complete and exclusive
agreement of the Parties with respect to the subject matter hereof and
supersedes and merges all prior or contemporaneous representations,
discussions, proposals, negotiations, conditions, communications and
agreements, whether written or oral, between the Parties relating to
the subject matter hereof.
(f) Assignment. The provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties and their respective
affiliates, parent, subsidiaries, successors and assigns. Neither
Party will sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, by operation of law or otherwise, any
rights or obligations under this Agreement without the other Party's
prior written consent which will not be unreasonably withheld or
delayed. Notwithstanding the foregoing, either Party may assign this
Agreement as part of a merger or sale of all or substantially all of
the assigning party's assets.
(h) Independent Contractor. The relationship of the parties hereunder
is that of an independent contractor and nothing in this Agreement
should be construed as to create a partnership, joint venture, agency
or employment relationship between the Parties.
(i) Counterparts; Headings. This Agreement may be executed
(including, but not limited to, by facsimile signature) in one or more
counterparts, with the same effect as if the Parties had signed the
same document. The captions and headings of the various Sections of
this Agreement are inserted merely for the purpose of convenience and
shall not in any way alter the meaning or interpretation of this
Agreement.
(j) Attorneys' Fees. If either Party brings an action or proceeding at
law or in equity to interpret or enforce this Agreement or any
provisions contained herein, or to seek damages or other redress for a
breach, the prevailing party shall be entitled to recover, in addition
to all other remedies or damages, reasonable attorneys' fees and court
costs incurred in such action or proceeding.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the Effective Date.
LICENSOR:
By: Xxxxxxx Edelshton
Service Technology
Title: Founder
Address: 0000 X. Xxxxxxx #00
Xxx Xxxxxxx, XX 000000
Date: 11-28-07
LICENSEE
By: Xxxxx Xxxxxx
Names: Xxxxx Xxxxxx
Excel Global, Inc.
Title:
Address:
Date
EXHIBIT A
SOFTWARE DESCRIPTION
- Source code for the client services platform currently used on
the site www. Xxxxxxxxxxxxxxxxxxxx.xxx
- Additional components
- Updates
