EXHIBIT 10.33
RESELLER LICENSE AGREEMENT
This Reseller License Agreement ("Agreement") is dated as of October
6th , 2003 and made by and between XxxxXXX.xxx, Inc., a Delaware corporation,
which does business as QuikCAT Technologies, having its principal place of
business at 000 Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxx 00000 ("QuikCAT"), and IA
Global, Inc., a Delaware corporation, having its principal place of business at
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Reseller").
WHEREAS, QuikCAT has developed certain computer software products, as
defined more specifically below, that accelerate the transmission of digitized
data across the Internet through a Distributed ISP Model; and
WHEREAS, Reseller wishes to utilize and license the products developed
by QuikCAT for use by the clients of Reseller; and
WHEREAS, QuikCAT is willing to provide certain software and to grant
such license to Reseller, upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
QuikCAT and Reseller (hereinafter referred to respectively as the "Party" or
collectively as the "Parties") hereby agree as follows:
Article I
LICENSED PROPERTY; SERVICES
1.1 Upon the terms and conditions set forth herein, QuikCAT hereby
grants to Reseller a license, with no right of sublicense, except as
specifically set forth in Section 1.1(a) and 1.1(d) below (the "License"), to
the following products, which shall constitute the "Licensed Products":
(a) The QuikCAT iNet Client Software (the "iNet Client"), to
permit receipt of the digitized Internet data (which includes any data such as
internet, email, files, etc.) by clients of Reseller. Reseller may sublicense
the iNet Client to, and permit the downloading of the iNet Client by those of
its clients who have the right to utilize such software pursuant to any
agreement or license with Reseller ("Reseller Clients");
(b) The QuikCAT iNet Compression Server Software (the "iNet
Server") to accelerate delivery of digitized Internet data to the Reseller
Clients, and the Reseller may establish one or more sites for the iNet Server at
such locations in the Territories (as defined below) as it may designate;
(c) The QuikCAT iNet Client Interface (the "Client Interface")
to manage the interaction between the iNet Server and Reseller's client
software;
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(d) The QuikCAT iNet and iNet Server License Keys ("Keys") to
permit Reseller Clients to utilize the iNet Client Software and the Reseller to
use the Net Server; and
(e) all changes, enhancements and modifications made by
QuikCAT to any of the foregoing.
1.2 (a) The License granted hereunder shall be valid for use of
the Licensed Products in Japan, Australia and New Zealand (the "Initial
Territories") and any other territories for which QuikCAT grants a license to
Reseller pursuant to this Section 1.2 (collectively, the "Territories"). The
License granted hereunder with respect to the Initial Territories is exclusive
as to the "Designated Product," which is defined as the version of the Licensed
Products that incorporates modifications to the Client Interface made by or at
the direction of Reseller (the "MCIP").
(b) If Reseller submits to QuikCAT a business plan reasonably
acceptable to QuikCAT with respect to the distribution of the Licensed Products
in additional countries or regions ("Additional Territories"), such Additional
Territories shall be included in the definition of "Territories" for purposes of
this Agreement. Notwithstanding the foregoing, (i) if QuikCAT enters into a bona
fide agreement with a third party to grant an exclusive license with respect to
the Licensed Products in a particular country or geographic region, Reseller may
not submit a business plan with respect to such country or region during the
term of such bona fide third party agreement and (ii) if QuikCAT enters into a
bona fide agreement with a third party to grant a non-exclusive license with
respect to the Licensed Products in such country or region, Reseller may submit
a business plan with respect to such country or region and such country or
region will become an Additional Territory, but without any rights to
exclusivity in such Additional Territory during the term of such bona fide third
party agreement. QuikCAT will promptly notify Reseller if it enters into any
such bona fide third party agreement.
(c) In those Territories in which Reseller has an exclusive
license, including the Initial Territories, QuikCAT, Xx. Xxxxxxxx X. Xxxx and
each of their respective affiliates shall not engage in any competitive
activities with Reseller, and they each shall utilize commercially reasonable
efforts not to market or license any products competitive with the Licensed
Products in such Territories during the term of this Agreement. Reseller
acknowledges that marketing efforts from the websites of QuikCAT or its
marketing affiliates shall not be considered a breach of this Section 1.2(c).
(d) The License granted hereunder with respect to the
Additional Territories shall be non-exclusive; provided, however, that such
License will be exclusive with respect to any particular Additional Territory
for which the following conditions are satisfied:
(i) QuikCAT has not entered into a bona fide license
agreement with a third party with respect to the Licensed
Products in such Additional Territory;
(ii) Reseller submits a projection of unit volume and
revenue growth for such Additional Territory for a three-year
period, reasonably acceptable to QuikCAT upon a review
continuing for not more than five (5) business days; and
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(iii) Receipt of any regulatory or judicial approval
required by law. QuikCAT will use commercially reasonable
efforts to obtain any such regulatory or judicial approvals
with fifteen (15) days after accepting Reseller's projections.
(e) On written notice to QuikCAT, Reseller may terminate the
exclusivity of the license granted pursuant to Section 1.2(d) with respect to
any Additional Territory.
(f) Notwithstanding anything herein to the contrary, the
royalty payable by Reseller with respect to any Additional Territory for which
an exclusive license is granted (and has not been terminated as provided in the
previous paragraph) pursuant to Section 1.2(d) shall be based on Reseller's
actual revenues for such Additional Territory and shall be calculated and paid
in accordance with the provisions of Section 2.2(a) (the "Actual Royalty"). If,
at the end of the twelve month period commencing on the date of the award of the
exclusive license for such Additional Territory, or at the end of any twelve
month interval thereafter, ending on the anniversary date of the award of such
exclusive license (provided the license to such Additional Territory is
exclusive), the Actual Royalty paid to QuikCAT by Reseller with respect to such
Additional Territory during such twelve month period is less than the projected
royalty agreed upon by the parties pursuant to Section 1.2(d)(ii) for such
twelve month period (the "Projected Royalty"), then, Reseller may elect to
maintain the exclusive license for such Additional Territory for the subsequent
twelve month period by remitting to QuikCAT, within thirty days following the
end of such twelve month period, the difference between the Projected Royalty
and the Actual Royalty for such twelve month period. If Reseller does not make
such payment in full within such thirty day period, the license for such
Additional Territory shall immediately become and remain non-exclusive and
Reseller shall have no obligation to QuikCAT for any payment in excess of the
Actual Royalty for such twelve month period or thereafter.
If, at the end of the twelve month period commencing on the
date of the award of the exclusive license for such Additional Territory, and at
the end of each twelve month interval thereafter (so long as the license to such
Additional Territory is exclusive), the Actual Royalty paid to QuikCAT by
Reseller with respect to such Additional Territory during such twelve month
period is equal to or greater than the Projected Royalty for such twelve month
period (the "Projected Royalty"), then, QuikCAT may retain the difference
between the Actual Royalty and the Projected Royalty for such period, and the
license for such Additional Territory shall remain exclusive for the subsequent
twelve month period.
To illustrate the provisions of this Section 1.2(f), assume
that the parties agree to a business plan, which projects royalties of $100,000
payable to QuikCAT during the first year after the award of the exclusive
license. If during that first year, Reseller pays Actual Royalties of $80,000,
then, in order to maintain the exclusive license for an additional year,
Reseller must pay to QuikCAT the difference of $20,000, within 30 days after the
end of that year. If it chooses not to pay such amount, Reseller's license shall
become non-exclusive and Reseller shall have no obligation to QuikCAT for
payment of the $20,000, but it will continue to be obligated to pay Actual
Royalties so long as the non-exclusive license remains in effect. If during the
first year Reseller pays Actual Royalties of $110,000, then the license shall
remain exclusive for an additional year. QuikCAT shall have no obligation to
repay Actual Royalties in excess of Projected Royalties.
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1.3 (a) Except as provided in Section 1.3(b) or otherwise agreed
to in writing by QuikCAT, any attempt by Reseller to modify, enhance, reverse
compile, reverse engineer, disassemble or to attempt to tamper with, modify or
in any manner disable the iNet License Controller shall void this Agreement and
shall subject Reseller to liability to QuikCAT for actual, consequential and
punitive damages.
(b) QuikCAT will grant Reseller access, via a secure ftp site,
to that portion of the Licensed Products' source code that relates to the Client
Interface and the related documentation, comments thereon, manuals or printed
materials that pertain to the use and maintenance of the Licensed Products so as
to permit Reseller to modify the Client Interface for its own use or that of its
affiliates. The cost of modifying the Client Interface and producing the MCIP
will be borne entirely by Reseller. Any programmers who will have access to the
Licensed Products' source code and related documentation shall enter into a
non-disclosure agreement in favor of QuikCAT. As requested by Reseller, QuikCAT
will assist Reseller in preparing and testing the MCIP (working in conjunction
with other parts of the Licensed Products) and will make any necessary changes
to the other parts of the Licensed Products for commercial release. Reseller
shall pay QuikCAT its actual costs for any services provided pursuant to this
Section 1.3(b).
1.4 Nothing herein shall grant to Reseller or the Reseller Clients any
right, title or interest in or to the Licensed Products, except for the MCIP and
the License rights granted specifically herein. QuikCAT shall have the sole
right to file, prosecute and maintain all patents related to the Licensed
Products and any improvements, modifications, or enhancements thereto, except
for the MCIP and except as to those improvement, modifications or enhancements
that are made by or at the direction of Reseller and pre-approved by QuikCAT,
and shall have the right to determine whether or not to file a patent
application, to abandon prosecution of any patent or patent application, or
discontinue the maintenance of any patent or patent application.
1.5 Reseller shall own the MCIP and associated intellectual property
rights; provided, however, that Reseller's rights to the MCIP shall not extend
to any underlying intellectual property owned by QuikCAT which is used or
included in the MCIP. Reseller shall have the sole right to file, prosecute and
maintain all patents related to the MCIP and any improvements, modifications, or
enhancements thereto, and shall have the right to determine whether or not to
file a patent application, to abandon prosecution of any patent or patent
application, or discontinue the maintenance of any patent or patent application.
1.6 Reseller shall have the right to reproduce, in whole or in part,
the software and related documentation, solely in accordance with its rights
under this Agreement.
ARTICLE II
OBLIGATIONS OF RESELLER
2.1 Reseller will utilize commercially-reasonable methods to market and
sublicense the iNet Client to its clients, but Reseller makes no representation
or guaranty of the number of its clients who will become Reseller Clients.
2.2 (a) Except as provided in Section 1.2(f), no later than the tenth
(10th) day of each month, Reseller shall pay to QuikCAT a non-refundable royalty
(the "Royalty") for the
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License in an amount equal to 5% of Reseller's net revenues from its sale or
licensing of the Licensed Products which it actually receives during the
immediately preceding month. The parties shall cooperate to eliminate any delays
in payment arising from the international bank settlement system.
(b) The term "net revenues" shall mean gross revenue less any
applicable local taxes. Local taxes shall not include income taxes of the
Marketing Entities (as defined below) and is restricted to end user's payment of
license fees. The royalty payment to QuikCAT may be reduced by the withholding
of a defined portion of royalty payments to QuikCAT to comply with regulations
of tax authorities. In such event, Reseller and the relevant Marketing Entity
shall cooperate with attempts by QuikCAT to reduce or eliminate such withholding
and/or to obtain a refund of a portion or all of the amounts so withheld.
(c) If Reseller bundles the Licensed Products with other
products, Reseller and QuikCAT will seek to negotiate in good faith a
commercially reasonable royalty for the Licensed Products bundled with such
other products.
2.3 (a) Reseller and its Japanese and Australian partners will
form appropriate corporations or other legal entities ("Marketing Entities") to
market the Licensed Products for each of the Initial Territories. Reseller will
cause QuikCAT to be granted, at no cost to QuikCAT, a 10% ownership interest in
each such Marketing Entity (the "QuikCAT Ownership Interest").
(b) QuikCAT will also be entitled to enter into similar
arrangements with any other vehicles initiated and funded by Reseller for any
Additional Territory where Reseller has obtained exclusive license rights from
QuikCAT for the Licensed Products. In any such instance, the QuikCAT Ownership
Interest will be 5%. QuikCAT shall not be entitled to any QuikCAT Ownership
Interest in any Marketing Entity for an Additional Territory in which Reseller's
rights are non-exclusive.
(c) Reseller will have the right to extinguish the QuikCAT
Ownership Interest upon the occurrence of a Triggering Event and failure to cure
same under the Escrow Agreement (as defined below) by the payment of $1 to
QuikCAT or any successor thereto. Reseller will ensure appropriate and
reasonable minority protection for QuikCAT in the Marketing Entities.
(d) Prior to the issuance of any QuikCAT Ownership Interest,
QuikCAT may convert such interest into a virtual equity interest in the relevant
Marketing Entity, which will provide for the same rights, including, without
limitation, distribution of proportionate shares of net profits and of proceeds
on sale of the Marketing Entity.
(e) Each Marketing Entity shall distribute, on a semi-annual
basis, to the holder of the QuikCAT Ownership Interest its proportionate share
of net profits (defined as all amounts in excess of operating expenses and
reasonable reserves). Each Marketing Entity shall provide QuikCAT with a full
accounting of the calculation of such distribution, if any. Each Marketing
Entity shall provide QuikCAT with quarterly and annual financial statements, to
be delivered no later than 45 days after the end of each quarter and 75 days
after the end of each calendar year.
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2.4 Reseller agrees to give QuikCAT access to the accounting records
and/or the billing database of Reseller no less frequently than once each
calendar quarter, upon reasonable notice from QuikCAT. In addition, QuikCAT may
request, and, upon receipt of each such request, Reseller shall provide to
QuikCAT such other information necessary to determine Reseller's revenues
derived from the Licensed Products. QuikCAT agrees that it will not use any
information obtained in the course of such audits for any purpose other than the
determination of the appropriate amounts due to QuikCAT under this Agreement.
Reseller also agrees, that should such audit result in an adjustment of 10% or
more, that Reseller will pay for all QuikCAT costs incurred in such audit.
2.5 Reseller agrees to provide QuikCAT unlimited electronic and
physical access to the server that is used for Reseller's license administration
of the iNet Client, provided that such access is available where this server is
hosted on behalf of Reseller by a third party. Reseller confirms that in any
such hosting agreement it will require access to this server in accordance with
industry standards and will similarly facilitate such rights for QuikCAT.
2.6 QuikCAT shall use commercially reasonable efforts to assist
Reseller with Reseller's e-commerce platform, server and optimization of its
server software. Reseller shall reimburse QuikCAT for its out-of-pocket costs in
providing such services. Additional consulting services may be provided to
Reseller, at Reseller's request, at the rate of two hundred fifty dollars (USD
250) per hour. (No such services will be provided without specific written
authorization of Reseller, which will include Reseller's acknowledgement of the
cost of such services.)
ARTICLE III
THIRD PARTY INFRINGEMENT
3.1 QuikCAT and Reseller shall notify the other of any suspected
infringement of the QuikCAT technology embodied in the Licensed Products that
comes to such Party's attention (a "Third-Party Infringement").
3.2 QuikCAT may, at its own expense and in its own name, institute and
prosecute any actions or proceedings or take other appropriate action against
third parties to bring about discontinuance of such Third-Party Infringement.
Reseller shall join such litigation as a named party, at QuikCAT's request, if
necessary to the litigation, and Reseller shall provide reasonable assistance to
QuikCAT, and at the expense of QuikCAT. QuikCAT shall retain all proceeds from
such litigation.
ARTICLE IV
INFRINGEMENT DEFENSE
4.1 Should a claim of infringement related to the Licensed Products be
brought against either QuikCAT or Reseller, such Party shall notify the other
party of such claim.
4.2 QuikCAT shall promptly, at its own expense and its own name, defend
any actions or proceedings or take other appropriate action against third
parties to bring about discontinuance of such claim, infringement, or violation.
Reseller shall join such litigation as a named party, at Reseller's request, if
necessary to the litigation, and Reseller shall provide
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reasonable assistance to QuikCAT, and at the expense of QuikCAT. QuikCAT shall
retain any proceeds from such litigation. The provisions of this Section 4.2
shall not apply to any claim related to the MCIP.
ARTICLE V
INDEMNIFICATION
5.1 QuikCAT shall indemnify, defend and hold Reseller harmless from and
against any claim of infringement of a United States patent or copyright based
upon the Licensed Products, provided Reseller gives QuikCAT prompt notice of and
the opportunity to defend such claims. This indemnity by QuikCAT shall include
payment of Reseller's reasonable attorneys' fees, costs and expenses. The
provisions of this Section 5.1 shall not apply to any claim related to the MCIP,
or to any other modifications, improvements and/or enhancements made by or at
the direction of Reseller.
5.2 Reseller shall indemnify, defend and hold harmless QuikCAT from any
and all damage, loss, claim, suit or liability arising out of or otherwise
connected with Reseller's use, promotion, marketing, modification, improvement,
enhancement, offer for sale, distribution or sale of the Licensed Products,
including, but not limited to, claims arising out of the alleged negligence in
Reseller's use, promotion, marketing, distribution, offer for sale or sale of
the Licensed Products or the modification, improvement or enhancement of the
MCIP (other than, in any such case, a claim for infringement described in
Article IV above) This indemnity by Reseller shall include payment of QuikCAT's
reasonable attorneys' fees, costs and expenses.
ARTICLE VI
TERM AND TERMINATION
6.1 This Agreement shall become effective upon satisfaction of the
following conditions:
(a) IA Global shall have paid $110,000 to QuikCAT, including
$10,000 paid on or about September 3, 2003 and the balance of which shall not be
paid prior to the satisfaction of the conditions set forth in Sections 6.1(d)
and (e);
(b) each party shall have obtained such approval of its board
of directors as may be required;
(c) each party shall have obtained all such regulatory
approvals as may be required;
(d) Reseller has received an order, in form and substance
reasonably acceptable to the Reseller, of the U.S. Bankruptcy Court for the
Northern District of Ohio, approving the transactions contemplated hereby, and
any applicable appeal period from such order shall have expired; and
(e) the Escrow Agreement is in full force and effect and
QuikCAT has made all deliveries required thereunder, as evidenced by (i) a
certificate provided by each of QuikCAT and Reseller confirming that each has
complied with this requirement and that each has done all things necessary to
complete their respective obligations thereunder and (ii) a certificate
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from a qualified person who has reviewed the Escrow Deposit and confirms to
Reseller that in his view all documents and materials necessary to effect the
Escrow Agreement have been deposited by QuikCAT.
6.2 Unless otherwise terminated as hereinafter set forth, this
Agreement shall continue in force for a period of three (3) years commencing on
the date on which all conditions contained in Section 6.1 are satisfied and the
full commercial deployment of the Designated Product has occurred, and shall
renew automatically for additional one (1) year periods.
6.3 Should either Party at any time default in fulfilling any of its
obligations hereunder, and such default is not cured within thirty (30) days
after receipt of written notice of such default, then, at the option of the
non-defaulting Party, this Agreement and all licenses issued hereunder shall
terminate thirty (30) days after written notice of such default is delivered by
the non-defaulting Party to the other Party.
6.4 This Agreement shall terminate automatically if Reseller ceases to
do business in the normal course for a period of ninety (90) consecutive days,
where such cessation does not result from governmental restrictions, enemy
action, civil commotion, unavoidable casualties, acts of God or any other cause
beyond Reseller's control.
6.5 Upon the expiration or termination of this Agreement for any
reason, all rights granted to Reseller and Reseller Clients hereunder shall
cease and revert to QuikCAT and Reseller shall return all copies of any QuikCAT
documentation, reproductions, product material including media and software to
QuikCAT or certify that such documentation and software have been removed from
all computers and all storage media, and destroyed.
6.6 In the event of a default by Reseller of any payment obligations to
QuikCAT hereunder, QuikCAT shall issue Reseller a default notice and upon the
expiry of 30 days thereafter, provided the default has not been cured, QuikCAT
shall be entitled, without further notice, to suspend issuance of iNet Client
software keys, to revoke the iNet Server key authorization and to remove all
copies of the Licensed Products.
6.7 The waiver of any default under this Agreement by either Party
shall not constitute a waiver of the right to terminate this Agreement for any
subsequent or like default, and the exercise of the right of termination shall
not impose any liability by reason of termination nor have the effect of waiving
any damages to which the terminating Party might otherwise be entitled.
6.8 Nothing in this Agreement shall limit or restrict Reseller's rights
under the Escrow Agreement.
6.9 Sections 2.4, 6.5 and 9.6, and Articles III, IV, V, and VII shall
survive the termination of this Agreement.
ARTICLE VII
WARRANTIES AND LIMITATION OF LIABILITY
7.1 QuikCAT warrants that, subject to the approval described in Section
6.1(d) it has the right to issue the license contemplated herein and that it has
all requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. QUIKCAT
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MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 QuikCAT shall not be liable for special, indirect, incidental or
consequential damages (including, without limitation, lost profits), relating to
this Agreement or resulting from Reseller's use, or Reseller's clients' use, of
the Licensed Products, arising from any cause of action whatsoever, including
contract, warranty, strict liability or negligence, even if QuikCAT has been
notified of the possibility of such damages.
ARTICLE VIII
ESCROW AGREEMENT
8.1 QuikCAT, Reseller and Australian Escrow Services Pty Ltd have
entered into an Escrow Agreement (the "Escrow Agreement") dated the date hereof
with respect to the source code for the Licensed Products.
Upon the occurrence of a Triggering Event (as defined in the Escrow
Agreement), Reseller may utilize the Escrow Deposit (as defined in the Escrow
Agreement) to continue its business activities, including further developing the
Licensed Products. This escrow procedure is not intended to create additional
rights in Reseller, except as specifically set forth herein and in the Escrow
Agreement.
If a Triggering Event occurs, then Reseller shall be free to employ or
otherwise seek the services of any then present or former employee of QuikCAT or
other persons having knowledge of the Licensed Products. In such cases, these
persons will be deemed to have been released from any confidentiality agreement
or other restrictions placed on them by QuikCAT or others to allow them to work
for Reseller on the Licensed Products within the scope of this Agreement.
In the event that a Triggering Event occurs, Xx. Xxxx and his
affiliates agree to negotiate in good faith to complete a commercially
reasonable agreement to assist Reseller in its use of the Licensed Products.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS. Captions and section headings are used for convenience of
reference only and are not part of this Agreement and may not be used in
construing it.
9.2 DISCLOSURE. It is understood that both Reseller and QuikCAT intend
to disclose the nature of the relationship established hereby and to issue press
releases and utilize profiles of the other party in its sales and promotional
materials; provided, however, that neither party will use the name of the other
party or any specific indicia of the other party with out the express written
consent of the other party. The good faith performance of the disclosure
requirements of a governmental or other regulatory body shall not be deemed to
be a breach of this Section 9.2.
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9.3 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and such counterparts
shall together, constitute and be one and the same instrument.
9.4 ENFORCEABILITY. If any provision of this Agreement is or becomes or
is deemed invalid, illegal or unenforceable under the applicable laws or
regulations of any jurisdiction, either such provision shall be deemed amended
to conform to such laws or regulations without materially altering the intention
of the Parties or it shall be stricken and the remainder of this Agreement shall
remain in full force and effect.
9.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. The Agreement may
not be amended or modified in any respect except by written instrument signed by
both parties.
9.6 GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall be
construed in all respect and as to all matters, including, but not limited to,
matters of validity, construction, effect, performance and remedies in
accordance with and governed by the internal laws (without resort to conflicts
of law provisions) of the State of Ohio. All judicial proceedings brought
against Reseller with respect to this Agreement may be brought in any state or
federal court of competent jurisdiction in Cuyahoga County, Ohio, and Reseller
accepts nonexclusive jurisdiction of said courts. Reseller hereby waives, to the
fullest extent permitted by law, any objection (including, without limitation,
any objection to the laying of venue or based on the grounds of forum
non-conveniens) which it may now or hereafter have to the bringing of any such
action in any such jurisdiction.
9.7 MODIFICATION. No amendment or modification of this Agreement shall
be valid or binding upon the Parties unless made in writing, signed on behalf of
each of the Parties by their respective proper officers thereunto and duly
authorized, and validated.
9.8 NOTICES. All notices or other communications shall be in writing
and shall be deemed given or delivered when delivered personally or when sent by
registered or certified mail or by private courier addressed as follows:
If to QuikCAT: QuikCAT Technologies
000 Xxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attn: Contract Administration
With a copy faxed to:
Fax: x0 000-000-0000
With a copy to:
Xxxxxxx X. Xxxx, Esq.
00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000 XXX
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If to Reseller: IA Global, Inc.
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
With a copy faxed to:
Xxxx Xxxxxxxxxx
Fax: x00 0 0000-0000
With a copy to:
Xxxx Xxxxxxx, x/x XxXxxxxx Xxxxxxx
Xxxxx 0, 000 Xx. Xxxxxx'x Xxxxxxx
Xxxxx, XX 0000 Xxxxxxxxx
With a copy faxed to:
Fax: x00 0 0000 0000
9.9 RELATIONSHIP OF THE PARTIES. The Parties hereto are independent
contractors. Nothing herein contained shall be deemed to create a joint venture,
agency, or partnership between the Parties hereto. Neither Party shall have any
power to enter into any contracts or commitments in the name of, or on behalf
of, the other Party, or to bind the other party in any respect whatsoever.
9.10 SEVERABILITY. In the event that any provision of this Agreement
shall be declared by a court of competent jurisdiction to be invalid, illegal,
or otherwise unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9.11 ASSIGNMENT. Upon written notice to Reseller, QuikCAT may assign
its rights under this Agreement to any subsidiary or affiliate under its
control, or as part of the sale of substantially all of its assets, or pursuant
to any merger, consolidation or other reorganization. Reseller may assign its
rights under this Agreement to any subsidiary or affiliate under its control, or
as part of the sale of substantially all of its assets, or pursuant to any
merger, consolidation or other reorganization, upon written consent by QuikCAT,
not to be unreasonably withheld. An assignee of either Party, upon such notice,
shall have all of the rights and obligations of the assigning party set forth in
this Agreement.
9.12 IMMEDIATE PARTIAL ASSIGNMENT. The Parties agree that Reseller may
assign its rights to the Japanese market to another party by way of the separate
"Japan License Agreement" which is attached as a schedule to this agreement. In
executing this agreement, QuikCAT will also execute the "Japanese License
Agreement" and Reseller may also elect to execute the "Japanese Reseller
Agreement" at some time in the future.
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The Parties agree that if Reseller executes the "Japanese License
Agreement", then it will so notify QuikCAT and this agreement will be limited in
respect to the Japanese market by the "Japanese License Agreement" and for so
long as that agreement is valid.
The Parties agree that the assignee of the "Japanese License Agreement"
shall have all of the rights and obligations of the Reseller as set forth in
that Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their
duly-authorized agents to execute this Agreement on the respective dates set
forth below.
IA Global, Inc.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxxxx
Title: President and CEO
Date: October 6, 2003
QuikCAT Technologies
By: /s/ Xx. Xxxxxxxx Xxxx
----------------------------
Name: Xx. Xxxxxxxx X. Xxxx
Title: President and CEO
Date: October 6, 2003
----------------------------
Xx. Xxxxxxxx
X. Xxxx Date:
SCHEDULE
JAPAN LICENSE AGREEMENT
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