LICENSE AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT made and entered into as of the ____ day of _________, 1999, by
and between
Internet Shops, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000X
Xxxxxxxx, XX 00000
hereinafter referred to as "Licensor," and
The Golfing Xxxxxxx.Xxx Inc.
0000 Xxxxxx Xxxx., #000
Xxxxxx, XX 00000
hereinafter referred to as "Licensee."
WITNESSETH:
WHEREAS, Licensor has rights to an internet data base and content which may be
utilized in operating an on-line virtual golf pro shop; and
WHEREAS, Licensee desires to license the data base and systems utilized in
such an internet business utilizing its own domain name and logo; and
WHEREAS, the Licensee has approached Licensor concerning the use of said data
base and systems with the understanding that the licensee is not obligated to
follow any prescribed systems of the Licensor; and
WHEREAS, the parties desire to enter into a License Agreement according to the
following terms.
NOW, THEREFORE, IT IS AGREED:
1. Grant of License. Licensor grants to Licensee for the term as contained
herein the personal, non-transferrable and non-exclusive right, license and
privilege ("License") to use the Licensor's data base and systems in the
internet golf pro shop, and to adopt and to use, the products, services, trade
names, trademarks and service marks which the Licensor incorporates into its
business. Licensor presently has no trade names, trademarks and service marks
which are used in connection with the license agreement.
The Licensee shall be responsible for the design selection and registration of
its own domain name together with the design of any logo used in the creation
and marketing of the business. The licensor shall have no ownership interest
in the domain name or logo.
2. Term. This Agreement is effective from the date hereof and shall remain
in force for a period of ten (10) years. The term of the license is not
affected by any other agreement than the License Agreement. Thereafter, it
may be extended for additional ten (10) year terms provided Licensee is not in
default of any material provision of the License Agreement and upon delivery
of written notice to renew not more than twelve (12) months and not less than
six (6) months prior to expiration of the original term. No renewal fee will
be charged and renewal shall be granted upon the terms and conditions
(including the service fee) of the License Agreement in use by the business at
the renewal date.
3. Consideration. In consideration for the License, Licensee agrees to pay
Licensor the sum of $1,575.00 in cash or bank funds upon execution of this
agreement.
4. Service Fee. In consideration of the use of Licensor's systems, data
base, trademark(s), service xxxx(s) and/or trade name(s), Licensee shall pay a
service fee equal to seventy (70%) percent of the net profit on products sold
on its internet site. Net profits are hereinafter defined in this Agreement.
5. General Services to be Rendered by Licensor.
(a) During the term of this License, the Licensor shall periodically
advise and consult with the Licensee in connection with the
operation of its golf website and also upon request by the
Licensee, at other reasonable times. The Licensor shall
communicate its know-how, new developments, techniques and
improvements in areas of website operation and management which
are pertinent to the operation of the website. The communication
shall be accomplished through telephone communication, printed and
filmed reports, seminars, e-mail or whatever methods the Licensor
feels appropriate. The Licensor shall make available to the
Licensee all additional services, facilities, rights and
privileges which the Licensor makes generally available from time
to time to all its Licensees operating a golf pro shop website.
(b) The Licensor shall periodically develop and update the data base
technology and systems to meet competitive forces in the market
place.
(c) Licensor will be solely responsible for merchandise content,
including current products and new products, advertising and
format.
(d) Licensor shall provide all order processing, customer payments,
attend to purchasing and inventory and fulfillment of orders
placed on the Licensor's website.
(e) Licensor will submit your domain name to all major search engines
utilizing the world wide web provided however that the Licensor
makes no warranties or representations as to the length of time
required by each particular search engine to list the website or
the number of listings provided on the search engine.
6. Reports. On or before the 10th day of each and every month during the
term hereof, the Licensor shall provide to the Licensee, a statement, in such
form as the Licensor shall reasonably create, of sales generated from the
Licensee's website for the preceding month, and shall pay to the Licensee its
percentage of net profit from the operation of the website for said period.
The Licensor shall deliver such additional financial, operating and other
information and reports as the Licensor may determine on the forms and in the
manner prescribed by the Licensor and in accordance with the License, and will
reasonably allow Licensee to track website sales.
7. Net Profits Defined. For purposes of this Agreement, the term "Net
Profits" shall mean all revenues from sales generated by the website plus
outgoing freight. From this amount is deducted actual credit card processing
fees for the customer order, product cost, actual cost of incoming freight and
an administration fee per order as established by the Licensor (presently $.50
per order) to arrive at net sales.
Each successive month there shall be an adjustment to provide for merchandise
returned by customers.
8. Licensor's System. Licensee acknowledges that every component of the
Licensor's system is important to the Licensor and to the operation of the
website. Licensee acknowledges, however, that compliance with the systems,
standards and policies of Licensor's system is not required as a condition of
this License Agreement.
9. Non-Disclosure Agreement. Licensee acknowledges the systems, processes,
designs, components, and all other elements and trade secrets concerning the
operation of the website to be the sole and exclusive property of Licensor.
Licensee agrees that it will not sell or disclose any of the systems, methods,
processes, designs or other private matters and trade secrets of said system
to any person, firm, partnership or corporation except as otherwise provided
herein. Any knowledge or information which may be acquired by said Licensee
through training materials and sessions, manuals, employees, observation, or
other method whatsoever shall for all time and for all purposes be regarded as
strictly confidential and held in trust for use only in the operation and
promotion of the website.
10. Legal Remedies. The system, methods, processes, designs and trade
secrets of the Licensor are unique and extraordinary and of great value to
Licensor. A breach of this Agreement by Licensee will cause Licensor
irreparable damage. If Licensee refuses or fails to carry out any of the
terms of this Agreement, Licensor shall be entitled to injunctive relief to
restrain Licensee from violating its contract or rendering services to anyone
also together with money damages which Licensor may suffer in the event of
such breach.
In the event of any such violation of this Agreement, Licensor shall also have
the right to discontinue the delivery of any payments, goods and services, as
well as pursue any other sanctions or remedies permitted under any of the
provisions of the Agreement.
11. Termination of the License Agreement. Licensor may terminate the
License Agreement for "good cause" which includes but is not limited to the
failure to comply with any lawful requirement of the License Agreement. In
the event of failure to comply with such conditions, Licensor will give the
Licensee thirty (30) days written notice by the United States Post Office to
cure any such failure. Any such failure not cured within the thirty (30) day
period will result in Notice of Termination of the License being sent to the
Licensee which shall be effective thirty (30) days after delivery of such
notice. However, notice of termination or cancellation shall be deemed
effective immediately upon receipt of written notice from Licensor to the
Licensee for any of the following alleged grounds:
1. The bankruptcy or insolvency of the Licensee or a
substantial part of the assets of the Licensee assigned to or for
the benefit of any creditor, or the Licensee admits Licensee's
inability to pay his debts as they come due. Termination due to
bankruptcy or insolvency may not be enforceable under the Federal
Bankruptcy Code.
2. Licensee abandons the website by failure to operate the
website for an unreasonable period, causing the Licensor to
reasonably conclude that under the facts and circumstances the
Licensee does not intend to continue to operate the business,
unless such failure to operate is due to fire, flood, earthquake
or other similar causes beyond Licensee's control.
3. Any assignment or other transfer of any interest in this
License shall occur in violation of this Agreement.
4. Licensor and Licensee agree in writing to terminate the
License Agreement.
5. Licensee makes any material misrepresentation relating to
the acquisition of the business, or the Licensee engages in any
action or conduct which reflects substantially, materially and
unfavorably on the operation, image and reputation of the
business.
6. The Licensee repeatedly fails to comply with one or more of
the requirements of this agreement whether or not corrected after
notice.
7. The Licensee is convicted of a felony or other criminal
misconduct relating to the operation of the business.
To the extent that the above cancellation and termination provisions do not
comply with state or federal legislation regarding termination and renewal,
Licensor will adhere to state and federal laws and regulations regarding
cancellation and termination.
Upon termination of or refusal to renew or extend the License Agreement,
whether by Licensee, Licensor or expiration of the License Agreement, the
Licensee shall comply with the following provisions:
1) The Licensee shall immediately cease using the systems and
data base of the Licensor.
2) Licensee shall continue to remain liable on any contract for
goods or services or any other obligation incurred by the Licensee
from Licensor on behalf of the business.
Upon termination of or refusal to renew or extend this Agreement, whether by
Licensee, Licensor or expiration of the License Agreement, the Licensee shall
have no ownership interest in the License Agreement, the data base or systems.
Licensee will maintain sole liability and sole ownership interest in all
leases, assets and contractual rights and obligations and physical assets the
Licensee may have purchased during the operation of the website business. The
Licensee shall receive no payment or adjustment whatsoever for any good will
the Licensee may have established either prior to or during the operation of
the business.
12. Trademarks, Service Marks, Trade Names, Logo Types and Commercial
Symbols.
Licensee acknowledges that although the Licensor does not currently utilize
any service marks, trademarks, trade names, logo types or commercial symbols
in connection with the License Agreement, such marks and symbols may be
adopted in the future for use in connection with the business. Under this
Agreement, Licensor will grant to Licensee the right to utilize any such trade
names, trademarks, service marks and logos that may hereafter be used in
connection with the business.
Upon termination of this Agreement, Licensee shall execute such documents and
take such action as Licensor may deem reasonably necessary or desirable to
evidence the fact that Licensee has ceased using the trademark and the trade
name and that he has no further right or interest therein whatsoever.
13. Copyright. All title and copyrights in and to the data base (including
but not limited to any images, photographs, animations, video, audio, music,
text and "applets" incorporated into the website, its data base any
accompanying printed materials) are owned by licensor except those as may be
owned by its advertisers and suppliers. All rights are reserved by the
Licensor except those specifically granted.
14. Sale, Transfer or Assignment of Interest. This License Agreement
provides that the Licensee may not sell, sublicense, assign, including as
security for any loan, or otherwise encumber or transfer the License
Agreement, nor any part of the ownership of the License (which shall mean and
include voting stock, securities convertible thereto, proprietorship and
general partnership interest) voluntarily, involuntarily, directly or
indirectly in any way without the express prior written consent of Licensor
which consent shall not be unreasonably withheld. This provision also applies
to involuntary transfers, such as would occur upon the death of the Licensee.
Licensor has reserved to its sole discretion the decision whether to approve
the transfer or assignment of the License. Any sale, transfer or assignment
made without the express written approval of Licensor shall allow Licensor the
right to terminate this Agreement.
The rights of the Licensee's heirs in the event of the death or disability of
the Licensee shall follow the guidelines provided herein for assignments. In
the event of the death the legal representative of the Licensee shall within
sixty (60) days of such death set forth in writing and deliver to Licensor a
description of the proposed disposition of such interest. Licensor shall have
the first option to purchase said interest under the terms and conditions
provided herein; however, Licensor shall have the right to approve by express
written consent any such proposal made by the heirs or legal representative of
the Licensee.
15. Assigning Interest to a Corporation. The License Agreement is the
personal property of the Licensee insofar as the Licensee may assign
Licensee's interest in the License Agreement to a corporation provided that
the Licensee shall retain at least fifty-one (51%) percent of the outstanding
shares of the corporation. Upon any transfer to such corporation, the
Licensee will be required to execute a written guarantee of liability and
personally assume all debts and obligations of said corporation to Licensor.
16. First Option to Purchase. The Licensee or his representative shall give
the Licensor notice in writing of its intent to sell or otherwise transfer its
license. The notice shall set forth the name and address of the proposed
purchaser and all the terms and conditions of any bona fide offer. The
Licensor shall have the first option to purchase the business by giving
written notice to the Licensee of its intention to purchase on the same terms
and conditions as contained in such bona fide offer within 30 days following
receipt by the Licensor of such notice.
In the event that the Licensor does not exercise its right to purchase the
business and it is not subsequently sold to the proposed purchaser for any
reason, the Licensor shall continue to have, upon the same conditions and
notice, a first option to purchase the business upon the terms and conditions
contained in any subsequent bona fide offer.
17. Licensee Not an Agent of Licensor. The Licensee shall have no
authority, express or implied, to act as agent of the Licensor or any of its
affiliates for any purpose. The Licensee is, and shall remain, an independent
contractor responsible for all obligations and liabilities of, and for all
loss or damage to, the business and for all claims or demands based on damage
or destruction of property or based upon injury, illness or death or
destruction of persons, directly or indirectly, resulting from the operation
of the business and all in accordance with the provisions of this Agreement.
18. Indemnification. If the Licensor shall be subject to any claim, demand
or penalty or become a party to any suit or other judicial or administrative
proceeding by reason of any claimed act or omission by Licensee, his employees
or agents, or by reason of any omission with respect to the business, Licensee
shall indemnify and hold harmless the Licensor against all judgments,
settlements, penalties and expenses, including attorneys' fees, court costs
and other expenses of litigation or administrative proceeding, incurred by or
imposed on Licensor in connection with the investigation or defense relating
to such claim or litigation or administrative proceeding and, at the election
of Licensor, Licensee shall also defend Licensor.
19. Limited Warranty. Licensor warrants that the data base will perform
substantially in accordance with this agreement and any supplemental written
materials during the term of this agreement. There are no implied warranties
or representations except to the extent that certain states and jurisdictions
do not allow limitations for the duration of an implied warranty and therefore
this limitation may not apply.
To the maximum extent permitted by applicable law the Licensor disclaims all
other warranties, express or implied, including but not limited to implied
warranties of merchantability and fitness for a particular purpose, with
regard to the data base, systems and any accompanying written materials. This
limited warranty gives the Licensee certain specific rights which may vary
from state to state.
To the maximum extent permitted by applicable law, in no event shall Licensor
be liable for any damages whatsoever (including without limitation, special,
incidental, consequential or indirect damages for personal injury, loss of
business profits, business interruption, loss of business information, or
other pecuniary loss arising out of the use or inability to utilize the data
base or systems or for any other pecuniary loss) arising out of the use or
inability to use the data base and systems, even if the Licensor has been
advised of the possibility of such damages. Licensor shall not be responsible
for the damages or losses to Licensee as a result of natural disasters, power
outages, interruption in phone service or internet access or failures of
Licensee's computer equipment or systems. In any case Licensor's entire
liability under any provisions of this agreement shall be limited to the
amount actually paid for the License Agreement. Some estates may not allow
the exclusion or limitation of liability for consequential or inconsequential
damages and the above limitation may not apply in a particular circumstance.
20. Notices. All notices or other documents required or which may be given
under this agreement shall be in writing, duly signed by the party giving such
notice and transmitted by registered or certified mail, telecopier (with
confirmation of transmission), telegram, addressed as follows:
Licensor: 0000 Xxxxxxx Xxxx, Xxxxx 000X
Xxxxxxxx, XX 00000
Telecopier No. (000) 000-0000
Licensee: The Golfing Xxxxxxx.Xxx, Inc.
Telecopier No.___________
Any notice or document so given shall be deemed to have been received when
delivered, or on the second business day following the date of mailing, if
sent by registered mail or telegram, but shall be deemed to have been received
on the next business day if transmitted by telecopier. If the postal system
is disrupted by labor strike, any notice shall be sent by telecopier or
delivered. Any party may from time to time by notice given as provided above
change its address for the service of notices.
21. Time of the Essence. Time shall be of the essence of this Agreement and
of every part hereof.
22. Modification. The Licensee may modify this agreement only upon
execution of a written agreement between Licensor and the Licensee. The
Licensor may modify this agreement only upon the execution of the same such
written agreement to modify. Licensor may modify or amend systems, standards
under any conditions and to any extent which Licensor deems necessary to meet
competition, protect trademarks or trade names, or improve the quality, image
and reputation of the products or service offered by Licensor. Licensee is
not required to by the terms of this agreement to follow any changes to
recommended standards.
23. Severability. Licensor reserves the right to partially or fully waive
any of the above restrictions. The Licensee should expressly understand that
if any provision of this agreement would be construed to be illegal or
invalid, it shall not affect the legality or validity of any of the other
provisions hereof. The illegal or invalid provision shall be deemed stricken
and deleted from the terms of this agreement to the same extent and effect as
if it were never incorporated herein.
24. Governing Law. The terms and conditions of this License shall be
interpreted in accordance with and governed by the laws of the State of
Georgia.
IN WITNESS WHEREOF, the undersigned parties have executed this agreement on
the date specified above.
LICENSOR:
Internet Shops, Inc.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
LICENSEE:
/s/ Xxxxx X. Xxxxxx
President
