LICENSE OF RIGHTS IN SOFTWARE PROGRAM
EXHIBIT
10.1
LICENSE
OF RIGHTS IN SOFTWARE PROGRAM
THIS
LICENSE OF RIGHTS IN SOFTWARE PROGRAM (the “Agreement”) is made this 25th day of
June, 2007, by and between MVP Network Online Games, Inc. (“Licensor”), a Nevada
corporation, with a principal place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and MVP Network, Inc. (“Licensee”), a Nevada
corporation, with a principal place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS,
subject only to those exceptions, if any, expressly set forth in this Agreement,
Licensor owns all right, title, and interest in and to that certain computer
program identified as the Golden Fairway Golf game (the “Program”),
the functional specifications for which are set forth in Exhibit
A attached hereto; and
WHEREAS,
the Program contains no software components in which any third party may claim
superior or joint ownership, nor is the Program a derivative work of any other
software programs not owned in their entirety by Licensor; and
WHEREAS,
Licensor has granted no rights in the Program, or in any copies of the Program,
to third parties; and
WHEREAS,
Licensor desires to license to Licensee, on an exclusive basis, the rights
to
reproduce, publicly display, market, sell, distribute and otherwise exploit
the
Program throughout the world (“Licensed Territory”) during the term of this
Agreement, and Licensee desires to acquire such license rights to the Program,
in accordance with the terms and conditions of this Agreement;
NOW,
THEREFORE, for $100.00 and the other good and valuable consideration specified
herein, the receipt and sufficiency of which are hereby acknowledged, Licensor
and Licensee, intending to be legally bound, hereby agree as
follows:
1. Grant
of License. Subject to the terms and
conditions hereinafter set forth, Licensor hereby grants to Licensee, the
exclusive license to reproduce, publicly display, market, sell, distribute,
and
otherwise exploit the Program for use “online” the Internet throughout the
Licensed Territory during the term of this Agreement. The license
herein granted to Licensee includes, without limitation, the non-exclusive
right
to reproduce, use, and publish Licensor’s company name in connection with the
marketing, sale, and distribution of the Program. Any rights not
expressly granted to Licensee herein are and shall remain the property of the
Licensor.
2. Delivery
of Physical Objects. Within ten (10) days after the
effective date of this Agreement, Licensor shall deliver to Licensee: (1) its
entire inventory of copies of the Program in source and object code form or
CD
consisting of head and build branch plus all updates including code tags and
revisions; (2) all system and user documentation pertaining to the Program,
including design or development specifications, error reports, and related
correspondence and memoranda.
-1-
3. Licensor’s
Exclusive Rights Regarding Modifications and
Improvements. Licensor is hereby permitted to utilize
any or all of the contents of the Program to modify and/or improve the Program,
and Licensor shall have all (and exclusive) right, title, and interest in and
with respect to all such modifications and/or improvements.
4. Copy
Retained by Licensor. Licensor may retain one copy of
the Program and source code solely for nonproductive reference purposes with
respect to its obligations under this Agreement, and Licensor shall retain
no
other rights or licenses with respect to the Program.
5. Certain
Representations and Warranties.
5.1 Licensor
to Retain Ownership. Licensee hereby acknowledges and agrees that
all right, title and interest in and to the Program and all intangible property
rights therein shall be and remain the property of Licensor, subject to the
license herein granted to Licensee and any other interests granted by Licensor
to third parties which interests are not inconsistent with the license granted
to Licensee.
5.2 Licensor
Retains Proprietary Rights. Licensee and Licensor acknowledge and
agree that the product of all work performed in the development of the Program
including, without limitation, any and all reports, designs, drawings, computer
programs, audiovisual works, technical documentation of or concerning the
Program, any copyrights, patents, patent applications, and/or other proprietary
rights, shall be the sole and exclusive property of Licensor.
5.3 Assignment
to Licensor. In the event any rights, title and interests in and
to the Program shall not vest automatically in and with Licensor, Licensee
hereby irrevocably assigns, conveys and otherwise transfers to Licensor, and
its
respective successors and assigns, all such rights, title and interests in
and
to the Program, including without limitation, any and all reports, designs,
drawings, computer programs, audiovisual works, and technical documentation
of
or concerning the Program, together with all proprietary rights therein,
including without limitation, all copyrights and trade secret rights, all
contract and licensing rights, and all claims and causes of action of any kind
with respect to any of the foregoing, whether now known or hereafter to become
known.
5.4 Further
Assurances. Licensee agrees that it shall take all actions and
execute any and all documents as may be reasonably requested of it from time
to
time to fully vest in Licensor all rights, title and interests in and to the
Program including but not limited to any trademark and copyright
registrations. Licensor agrees that it will require appropriate
agreements with its employees and any other persons or entities participating
in
the creation and/or development of the Program pursuant to which any such
employee and/or third party shall effectively release and relinquish any and
all
rights, title and interests which he/she/it may have in and to the Program
and/or any portion thereof to Licensor.
5.5 Waiver
of Certain Interests. Licensee hereby waives any and all liens,
security interests, and/or other encumbrances against the Program, or any
intangible property rights relating to the Program. This waiver shall
be a continuing waiver.
5.6 Development
Tools. Licensee acknowledges that Licensor’s utilities, languages
and similar development tools (“Developer Tools”) shall be and remain the
exclusive property of Licensor.
5.7 No
Infringement of Third Party Intellectual Property
Rights. Licensor represents and warrants that the Program does
not infringe any patent, copyright, or trade secret of any third party; that
the
Program is fully eligible for protection under applicable copyright law and
has
not been forfeited to the public domain; and that the source code and system
specifications for the Program have been maintained in strict
confidence.
5.8 Licensor’s
Contributors. Licensor represents and warrants that any and all
personnel, including employees, agents, consultants, and contractors, who have
contributed to or participated in the conception and development of the Program
are listed in Exhibit B hereto (collectively the
“Licensor’s Contributors”); and Licensor represents and warrants that each
and
every one of the Licensor’s Contributors has also agreed to retain all
information relating to the Program in strict confidence, and has also: (1)
been
party to a for-hire relationship with Licensor that has accorded Licensor full,
effective, and exclusive original ownership of all tangible and intangible
property thereby arising with respect to the Program; or (2) executed
appropriate instruments of assignment of ownership in favor of Licensor as
assignee that have conveyed to Licensor full, effective and exclusive ownership
of all tangible and intangible property thereby arising with respect to the
Program.
-2-
5.9 No
Agreements or Arrangements. Licensor represents and warrants that
there are no agreements or arrangements in effect with respect to the marketing,
distribution, licensing, or promotion of the Program, including, without
limitation, no agreements or arrangements with any independent salesperson,
licensee, distributor, sublicensor, or other remarketer or sales
organization.
5.10 Software
Components. Licensor represents and warrants that it has duly
obtained the right and license to use, copy, modify, and distribute the software
components contained in the Program; that the Program contains no software
components in which any third party may claim superior or joint ownership or
other right or interest; and that the Program is not a derivative work of any
other software programs not owned in their entirety by Licensor.
5.11 No
End-User Agreements or Other Third-Party Agreements. Licensor
represents and warrants that it has not granted any rights in the Program to
any
end-user or to any other third parties.
6. Marketing.
6.1 Licensee
Controls Marketing. All aspects of the marketing, distribution,
and/or other such exploitation of the Program shall be in Licensee’s sole
discretion, including, without limitation, the channels of distribution,
pricing, naming, packaging, labeling, advertising, promotion, terms and
conditions of sale, compilation of customer names, and use of warranty and
user
registration information.
6.2 Use
of Intellectual Property. Any trade names, trademarks, service
marks, commercial symbols and/or logos used by Licensee in the marketing of
the
Program shall be the sole and exclusive property of Licensee with the exception
of the Licensor’s name, trademarks, service marks, commercial symbols and/or
logos used. Licensor understands and agrees that it may not use any
of the trade names, trademarks, service marks, commercial symbols and/or logos
adopted by Licensee in any way without the express written permission of
Licensee. Licensor further acknowledges and agrees that Licensor
acquires no rights with respect to any of Licensee’s adopted trade names,
trademarks, service marks, commercial symbols and/or logos used.
6.3 Name
of Licensor. Licensee shall be entitled to use and publish and
permit others to use and publish the name of Licensor (including any
professional or business identify adopted by licensor), photographs,
biographical material, or any reproduction or simulation thereof in connection
with the promotion, marketing, and/or distribution of the
Program. Licensor shall have the right to reasonably approve in a
timely manner any photographic or biographical materials concerning Licensor
or
its personnel, which are not furnished to Licensee by Licensor.
6.4 Ownership
Credit. Licensee shall afford Licensor conspicuous and legible
credit on a dedicated title screens embodied in the Program in the form of
“Designed and Developed by MVP Network Online Games, Inc.” (and with the logo of
MVP Network Online Games, Inc.).
6.5 Copyright
Notice. Licensee shall also insert a copyright notice in the form
described below in the Program: “Copyright 200_ MVP Network Online
Games, Inc., Software licensed by MVP Network, Inc.”
7. Warranty
Regarding Functional Specifications. Licensor
represents and warrants that the Program conforms in all material respects
to
the functional specifications set forth in Exhibit
A.
8. Additional
Support. Licensor shall have a duty to conduct and
perform the following, to the extent reasonably necessary, to carry out fully
the purposes of this Agreement:
Update
all game assets and from time to time add additional properties such as new
golf
courses, hole-in-one contests, driving and putting ranges along with additional
race tracks and multiple styles of racing games. All costs for additional assets
shale be born by Licensor.
-3-
9. Compensation.
9.1 Certain
Definitions. The term “Adjusted Gross Revenue” shall mean Gross
Revenues (as hereinafter defined) less Marketing/Distribution Costs (as
hereinafter defined). The term “Gross Revenues” shall mean all
amounts received by Licensee, its controlled subsidiaries and its commonly
controlled affiliates, as revenues, under generally accepted accounting
principles consistently applied, from the use, dissemination, or sale of the
Program. The term “Marketing/Distribution Costs” shall include: (a)
all costs incurred by Licensee in connection with the marketing and/or licensing
of the Program; and (b) all fees, royalties or other compensation paid to third
parties to disseminate, market, license and/or distribute the
Program.
9.2 Payment
of Royalties as Exclusive Compensation. As Licensor’s sole and
exclusive compensation and remuneration for all of the assignments, grants,
duties, and terms and conditions set forth in this Agreement, during the term
of
this Agreement, Licensee hereby agrees to pay to Licensor royalties equal to
fifty percent (50%) of Adjusted Gross Revenues for each calendar
quarter. Licensee shall make the payment due to
Licensor hereunder with respect to Adjusted Gross Revenues for each calendar
quarter not later than thirty (30) days after the end of such calendar
quarter. Each payment shall be accompanied by a report stating
the amount of Gross Adjusted Revenues received by Licensee during the calendar
quarter.
9.3 Audited
Financials, Record keeping and Inspection. Licensee hereby agrees to
provide to Licensor financial statements audited by an accounting firm for
each
calendar year within ninety (90) days following the end of such calendar
year. If the Adjusted Gross Revenues reported on such audited
financial statements differs from the cumulative amounts shown on the quarterly
reports for such calendar year, Licensee shall make an adjustment payment to
Licensor if the amounts shown on the quarterly reports were too low, or Licensor
shall make an adjustment payment to Licensee if the amounts shown on the
quarterly reports were too high, within thirty (30) days following delivery
of
the applicable financial statement. Licensee shall keep at its usual place
or
places of business complete records of its Adjusted Gross Revenues for each
quarter and preserve the same for at least three (3) years following the end
of
such quarter, and to regularly make entries in such records at its normal
business convenience for the purpose of determining the amounts payable to
Licensor hereunder. On not less than twenty (20) days written notice,
Licensor shall have the right, not more than twice during any twelve (12) month
period at mutually agreed upon times during normal business hours at Licensor's
expense, to examine any and all of Licensee's records reflecting Adjusted Gross
Revenues for the sole purpose of verifying the accuracy of Licensee's reports
of
Adjusted Gross Revenues and the performance of Licensee's obligations to make
payments hereunder. In the event that any such examination by
Licensor discloses an error in the determination of any amounts due hereunder
that is confirmed by Licensee's independent auditors, Licensee shall make an
adjustment payment to Licensor if the amount previously paid was too low, or
Licensor shall make an adjustment payment to Licensee if the amount previously
paid was too high, within twenty (20) days following such independent auditor's
confirmation of the error.
10. Term
and Termination. The term of this Agreement shall
continue until December 31, 2008 unless terminated earlier by either party
pursuant to this Section. If a party materially breaches this
Agreement (the “Breaching Party”), the other party (the
“Non-Breaching Party”) shall issue a notice of default to the Breaching Party
setting forth the breach in reasonable detail. The Breaching Party
shall then have thirty (30) days to cure such breach, and if the Breaching
Party
fails to cure such breach within such time, the Non-Breaching Party may
terminate this Agreement. All remedies of Licensor and Licensee, at
law or in equity, shall survive any such termination of the
Agreement.
11. Indemnity
by Licensor. Licensor shall indemnify and hold Licensee
harmless from and against any and all claims, demands, causes of action or
liabilities, of any nature whatsoever, arising out of or in connection with:
(a)
the failure of any one or more of the warranties, covenants and/or
representations made by Licensor in this Agreement to be true and accurate;
or
(b) the failure by Licensor to perform fully and promptly any one or more of
its
obligations set forth herein.
12. Indemnity
by Licensee. Licensee shall indemnify and hold Licensor
harmless from and against any and all claims, demands, causes of action or
liabilities, of any nature whatsoever, arising out of or in connection with:
(a)
the failure of any one or more of the warranties, covenants and/or
representations made by Licensee in this Agreement to be true and accurate;
or
(b) the failure by Licensee to perform fully and promptly any one or more of
its
obligations set forth herein.
-4-
13. Confidentiality
of Agreement. Unless otherwise expressly required by
governmental order or decree, neither party shall disclose the terms and
conditions of this Agreement to any person, except, to the extent necessary,
and
in any case subject to confidentiality obligations, either party’s attorneys,
accountants, or other similar agent, who require such disclosure to perform
their normal services for that party.
14. Attorneys’
Fees. In the event either party shall commence any
action or proceeding against the other party by reasons of any breach or claimed
breach in the performance of any of the terms or conditions of this agreement
or
to seek a judicial declaration of rights under this Agreement, the prevailing
party in such action shall be entitled to recover reasonable attorneys’ fees and
costs from the non-prevailing party.
15. Notices. All
notices, requests, demands and other communications hereunder shall be given
in
writing and shall be: (a) personally delivered, (b) sent by telecopy, facsimile
transmission or other electronic means of transmitting written documents, or
(c)
sent either by registered or certified U.S. mail, return receipt requested
and
postage prepaid, or by private overnight mail courier service. The
respective addresses to be used for all such notices, demands or requests are
as
follows:
If
to
Licensor:
MVP
Network Online Games,
Inc.
▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
If
to
Licensee:
▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
If
personally delivered, a communication shall be deemed delivered upon actual
receipt; if electronically transmitted, a communication shall be deemed
delivered the second business day after transmission (and the sender shall
bear
the burden of proof of delivery); if sent by U.S. mail, a communication shall
be
deemed delivered as of the date of delivery indicated on the receipt issued
by
the relevant postal service; and if sent by overnight courier, a communication
shall be deemed delivered upon receipt. In any such case, if the
addressee, on its part, fails or refuses to accept delivery, a communication
shall be deemed delivered as of the date of such failure or
refusal. A party may change its address for the purposes of this
Agreement by giving notice thereof in accordance with this Section.
16. Miscellaneous.
16.1 Successors
and Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto, together with their respective legal
representatives, successors, and permitted assigns.
16.2 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri, St. Louis
County.
-5-
16.3 Entire
Agreement. This Agreement merges and supersedes all prior and
contemporaneous agreements, assurances, representations, and communications
between the parties hereto with respect to the subject matter
hereof.
16.4 Amendments.
This Agreement may not be modified except in writing, signed by the party
against whom such amendment is sought to be enforced.
16.5 Counterparts. This
Agreement may be signed in counterparts, each an original but all one and the
same instrument.
16.6.
Section Headings. The Section headings appearing in this Agreement are
inserted only as a matter of convenience, and in no way define or limit the
scope of any Section.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the date shown above.
|
“Licensor”
MVP
NETWORK ONLINE GAMES, INC.
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ____________
Title:
President__________________
Date:
June 25, 2007
|
“Licensee”
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ _______________
Title:
Vice President ______________
Date:
June 25, 2007
|
-6-
EXHIBIT
A
DESCRIPTION
OF FUNCTIONAL SPECIFICATIONS
FOR
THE PROGRAM
Golden
Fairway Golf
"Golden
Fairway" is a client-server multiplayer 3-D golf simulation application
featuring in-game advertising configurable by MVP and its licensed game
distribution partners. Players referred to the game by a distributor
website or promotional activity will view the ads configured by the
distributor.
Description
of gameplay: Up to four players compete with each other on realistic golf
courses, and each player is represented by an animated 3-D avatar.
Golf physics is realistically modeled, taking into account the characteristics
of the golf ball, golf clubs, aerodynamics, ground, trees, buildings and other
objects. Shot control is provided by an aiming device (the "candy cane"),
power adjustments, swing direction adjustment, and 'hook' adjustment. Golf
courses are: "Hawaiian Tropics", "Canadian Rockies", "Arizona Desert" and
"Driving Range". Players communicate through text chat or voice-over-IP
features. Tournament play mode is available, providing prize awards
through distributor sponsors.
Distribution
and installation: "Golden Fairway" is distributed via Internet download or
by
compact disc digital media. From a downloaded installation
program or an installation CD, the player installs a client
application and associated components onto their PC; the client application
is
automatically updated by the server system whenever the game is
run.
Payment
model: A subset of overall game functionality is available to the
player free of charge as a demonstration. Players access premium
online content using game currency called 'tokens', obtained either
from MVP's website using an electronic payment system, or through
pre-purchase arrangement from a licensed distributor of the game, or equivalent
mechanism. Within the game, tokens are charged from the player's online
account in exchange for access to features, e.g. for playing an 18-hole
round of golf on the Arizona Desert course.
-7-
EXHIBIT
B
NAMES
OF LICENSOR’S CONTRIBUTORS
MVP
Network Online Games, Inc.
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
Skolones
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Will
▇▇▇▇▇▇
AGRS/1527.3
-8-