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Exhibit 10.3
IBIZ TECHNOLOGY CORPORATION
DISTRIBUTED SOFTWARE LICENSE AGREEMENT
LICENSOR:
XXXXXX XXXXXX Agreement # 99-017
DBA: LNKVERSE Attachments (if any)
None
00 XXXX XXXXXX #0 XXXXX, XX 00000 Effective: June 2, 1999
Licensor Contact Delivery: June 4, 1999
XXXXXX XXXXXX
INSTALLATION SITE: Non-expiring, perpetual license
Multi-use license: for use distribution And sale Warranty Period
with associated hardware
Support for 1 year from effective date
PRODUCTS: KEYLINK SOFTWARE License Fee
Quantity Description Total Cost
-------- ----------- ----------
Exclusive license to use, distribute and Upon delivery of KeyLink, iBIZ
offer for sale with associated hardware, Technology Corp. will transfer to
the software program named by author as: Licensor, within (1) business day, the
"KeyLink". The purpose of said software is following:
to allow connection of the keyboard product
manufactured by iBIZ Technology Corp. to 20,000 shares of iBIZ Technology
connect to "Palm Computing Devices" Common stock (NASDAQ BB: IBIZ)
produced by 3COM Corp. The "KeyLink" - market value approximately $26000
software package has been adapted from a US Dollars as of June 1, 1999
trial version named "KeyZ", previously
tested by iBIZ Technology. Modifications $3,000.00 US Dollars
have been, or will be made to the tested
software prior to final delivery, to meet Delivered within (3) business days,
required specifications from iBIZ the following:
Technology.
As a final "distribution" version of the (1) New laptop computer
software has not been received or tested Current production
by iBIZ Technology, Licensor agrees to model, P2, w/
reasonably modify and support the RAM, floppy & CD drives, HD, TFT
software for a period of (1) year from LCD screen, Battery, Charger
the execution agreement. "IBIZ Phoenix"
(Manufactured by Twinhead, as their date of this
Slimnote VX model)
Support shall be to make all reasonable
efforts to adapt, modify or otherwise
change the software to allow
compatibility with current and future
versions of Palm Computing Devices.
This shall include compatibility with
other software products "approved" by
3COM and Palm Computing, but excludes
non-approved software products.
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This Agreement is entered into as of the Effective Date specified above between
iBIZ Technology Corporation ("iBIZ") and the Licensor specified above.
1. PROVISION OF PROGRAMS. Under the provisions of this Agreement, Licensor
agrees to grant iBIZ licenses to use Licensor's proprietary computer programs
and associated materials ("Products") specified above.
2. SCOPE OF LICENSE. Licensor hereby grants to iBIZ a perpetual, exclusive
license to use the software on the terms and conditions set forth herein
(together with all modifications and accompanying documentation referred to
herein as the "Software"). This license is for the use of the Software by iBIZ
and any assigned user, purchasing or receiving said Software. iBIZ is entitled
to copy the Software into any machine-readable or printed form for back-up or
modification purposes and duplication for sale or distribution by iBIZ.
3. INSTALLATION/ACCEPTANCE. Unless otherwise specified herein iBIZ shall install
or provide for sale or distribution the Product in accordance with instructions
provided by Licensor. iBIZ reserves the right to conduct acceptance testing
within sixty (60) days of its receipt thereof, to demonstrate the Products
conform to their respective Specifications. If a Product does not pass the
acceptance test, iBIZ shall notify Licensor, specifying in reasonable detail in
what respects the Product has failed to perform. Licensor shall promptly correct
said deficiencies or accept the return of the Products for full refund of all
fees paid therefore.
4. DOCUMENTATION AND TRAINING. Upon delivery of each Product, Licensor shall
deliver to iBIZ one (1) copy of all generally available documentation for such
Product sufficient to enable iBIZ personnel to use and to reasonably understand
the use and operations of the Product ("Documentation"). iBIZ may copy the
Documentation in order to satisfy its own internal requirements or may duplicate
additional copies for any reasonable use.
5.0 (a) LICENSE GRANT. Licensor grants to iBIZ a perpetual, exclusive license to
use each Product, commencing upon its delivery to iBIZ and continuing thereafter
from the date of iBIZ's acceptance of the Product, for the License Term
specified on the Schedule, unless terminated earlier in accordance with this
Agreement.
(b) INVOICE AND PAYMENT. Licensor may invoice iBIZ for the License Fee
set forth above, on or after acceptance by iBIZ of the Product involved. Each
invoice properly rendered in accordance with this Agreement, shall be payable
within thirty (30) days after its receipt, unless otherwise specified herein.
5.1 DISASTER RECOVERY. Each License includes the right to use Products on
temporary substitute or back-up equipment. iBIZ shall also be entitled to make
and keep copies of each Product and its Documentation for archival/back-up
purposes. iBIZ may from time to time permanently transfer the license to use a
Product from one computer to another compatible with the Product (irrespective
of model, type or size) or from one Installation Site to another, from one
country or region to another, without payment of any additional fee or charge.
5.2 TITLE AND MODIFICATIONS. Licensor retains title to the Products provided
hereunder, but does convey exclusive rights and other interest therein to iBIZ,
with the licenses granted hereunder. Licensor agrees that iBIZ shall have the
right to enhance, modify and/or adapt any of the Products and/or materials
provided to iBIZ hereunder, may create and use derivative works and may use said
enhanced, modified, adapted Products and/or materials in accordance with this
Agreement. iBIZ may also combine Products with other programs and/or materials.
iBIZ shall have the exclusive ownership right to use any enhancements,
modifications, adaptations and derivative works made by or for iBIZ or by
Licensor specifically at iBIZ's request and expense. Nothing contained in this
Section, by itself, shall give iBIZ any right to receive the Product source
code.
6.0 MAINTENANCE. Licensor warrants that for a period of ninety (90) days after
iBIZ has notified Licensor of its acceptance of the Product pursuant to Article
3 ("Installation/Acceptance"), it shall correct and repair any malfunction,
defect or nonconformity which prevents such Product from performing in
accordance with the provisions of this Agreement at no additional charge to
iBIZ.
7.0 (a) CORRECTION OF NONCONFORMITIES AND TECHNICAL SUPPORT. Licensor shall
promptly correct or repair any Product failure, malfunction, defect or
nonconformity, which prevents it from performing in
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accordance with the Documentation and Specifications for a period of (1) year
from the effective date of this agreement. Licensor shall respond by telephone
(or other confirmed means) to any request for service made during normal
business hours within one (1) day of iBiZ's initial request for service.
Licensor shall provide reasonable remote technical assistance and consultation
to iBIZ at any time during normal working hours.
(b) UPDATES AND REVISIONS. Licensor shall provide iBIZ with all
revisions, updates, improvements, modifications and enhancements to each Product
and to the documentation described in Article 4 ("Documentation And Training"),
hereof, which are produced and generally made available by Licensor ("Update"),
including any revised Documentation. iBIZ may refuse to accept same, and in such
event, Licensor shall maintain the Product in the form in effect immediately
prior to Licensor's request that iBIZ accept such Update. For purposes of this
Agreement, an Update once incorporated into any Product or Documentation shall
be considered a part thereof for all purposes hereunder. Licensor shall use all
commercially reasonable efforts to produce and make available to iBIZ any and
all modifications to the Products to enable same to operate in conjunction with
any new releases of the applicable equipment's operating system.
8.0 GENERAL WARRANTIES. Licensor warrants to iBIZ that: (i) Licensor has the
right to furnish the Products, Documentation, Specifications and other materials
and perform the services as specified in this Agreement ("Product Materials and
Services") covered hereunder free of all liens, claims, encumbrances and other
restrictions; (ii) the Product Materials and Services furnished by Licensor
and/or iBIZ's use of the same hereunder do not violate or infringe the rights of
any third party or the laws or regulations of any governmental or judicial
authority; (iii) iBIZ shall be entitled to use and enjoy the benefit of the
Product Materials and Services, subject to and in accordance with this
Agreement; and (iv) iBIZ's use and possession of the Product Materials and
Services hereunder, shall not be adversely affected, interrupted or disturbed by
Licensor or any entity assenting a claim under or through Licensor.
8.1 YEAR 2000 WARRANTIES. Licensor warrants that: the Products have been tested
and are fully capable of providing accurate results using data having date
ranges spanning the twentieth (20th) and twenty first (21st) centuries (e.g.,
years 1980-2100). Without limiting the generality of the foregoing, Licensor
warrants that all software licensed from Licensor shall (a) manage and
manipulate data involving all dates from the 20th and 21st centuries without
functional or data abnormality related to such dates; (b) manage and manipulate
data involving all dates from the 20th and 21st centuries without inaccurate
results related to such dates; (c) have user interfaces and data fields
formatted to distinguish between dates from the 20th and 21st centuries; and (d)
represent all data related to include indications of the millennium, century,
and decade as well as the actual year.
8.2 PRODUCT WARRANTIES. Licensor warrants that: (i) for the period of one (1)
year from date of acceptance all tangible portions of the Product Materials and
Services shall be free from any defects in materials and workmanship and the
Products shall conform to and operate in accordance with the Specifications for
such Products, the Documentation provided to iBIZ as are attached, described
and/or provided under this Agreement; and (ii) the Specifications and
Documentation and other materials provided by Licensor hereunder shall
faithfully and accurately reflect the Products provided to iBIZ hereunder.
Licensor further warrants that for the Warranty Period specified herein it shall
correct and repair any malfunction, defect or nonconformity which prevents such
Product from performing in accordance with the provisions of this Agreement at
no additional charge to iBIZ. Licensor warrants that, upon the expiration of the
Warranty Period, it shall perform the maintenance and support services as
specified in this Agreement.
8.3 WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTY OF MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
9.0 INTELLECTUAL PROPERTY INFRINGEMENT. Licensor agrees to defend and/or handle
at its own expense, any claim or action against any iBIZ Entity, defined as
iBIZ, Invnsys, subsidiaries. and affiliated companies, for actual or alleged
infringement of any intellectual or industrial property right, including,
without limitation, trademarks, service marks, patents, copyrights,
misappropriation of trade secrets or any similar proprietary rights, based upon
the Product Materials and Services furnished hereunder by Licensor or based on
iBIZ's use thereof, excluding modifications by iBIZ that result in alleged
infringement. Licensor further agrees to indemnify and hold iBIZ harmless from
and against any and all liabilities, losses, costs, damages and expenses
(including reasonable attorneys' fees) associated with any such claim or action.
Licensor shall have the sole right to conduct the defense of
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any such claim or action and all negotiations for its settlement or compromise,
unless otherwise mutually agreed to in writing.
9.1 INTELLECTUAL PROPERTY INFRINGEMENT REMEDIES. If any Product Materials and/or
Services become, or in Licensor's opinion are likely to become, the subject of
any such claim or action, then, Licensor, at its expense may either: (i) procure
for iBIZ the right to continue using same as contemplated hereunder; (ii) modify
same to render same non-infringing (provided such modification does not
adversely affect iBIZ's use as contemplated hereunder); or (iii) replace same
with equally suitable, functionally equivalent, compatible, non-infringing
products, materials and/or services. If none of the foregoing are commercially
practicable, Licensor having used all reasonable efforts, then iBIZ shall have
the right to terminate the Schedule(s) involved and shall be entitled to a
pro-rata refund of all payments made in respect of such Product (calculated on a
straightline five (5) year basis unless a shorter License Term applies).
10.0 iBIZ CONFIDENTIAL INFORMATION. Licensor agrees to regard and preserve as
confidential all information related to the business and activities of iBIZ and
the iBIZ Entities, their customers, clients, suppliers and other entities with
whom iBIZ and the iBIZ Entities do business, that may be obtained by Licensor
from any source or may be developed as a result of this Agreement. Licensor
agrees to hold such information in trust and confidence for iBIZ and not to
disclose such information to any person, firm or enterprise, or use (directly or
indirectly) any such information for its own benefit or the benefit of any other
party, unless authorized by iBIZ in writing, and even then, to limit access to
and disclosure of such confidential information to Licensor's employees on a
"need to know" basis only.
10.1 LICENSOR CONFIDENTIAL INFORMATION. iBIZ acknowledges that Licensor
considers the Products and any materials labeled "Confidential" at the time of
their delivery to iBIZ, to be confidential and/or trade secrets of Licensor and
iBIZ agrees that iBIZ has obtained Licensor's written consent to release and
distribute the Products. Further, iBIZ will utilize the Products for purposes
specifically related to additional iBIZ products.
10.2 CONFIDENTIALITY EXCEPTIONS. Information shall not be considered
confidential to the extent, but only to the extent, that such information is:
(i) already known to the receiving party free of any restriction at the time it
is obtained from the other party; (ii) subsequently learned from an independent
third party free of any restriction and without breach of this Agreement; (iii)
is or becomes publicly available through no wrongful act of either party; (iv)
is independently developed by one party without reference to any Confidential
Information of the other; or (v) required to be disclosed pursuant to a
requirement of a government agency or law so long as the parties provide each
other with timely written prior notice of such requirements.
11.0 TAXES. iBIZ agrees to pay all taxes levied against or upon the Products and
any services or their use hereunder, exclusive, however, of taxes based on
Licensor's income, which taxes shall be paid by Licensor. If any tax for which
iBIZ is responsible hereunder is paid by Licensor, iBIZ will reimburse Licensor
upon iBIZ's receipt of proof of payment.
12.0 LIABILITY. In no event shall either party be liable, one to the other, for
any indirect, special or consequential damages arising out of or in connection
with this Agreement.
13.0 EXCUSABLE DELAYS. In no event shall either party be liable to the other for
any delay or failure to perform due to causes beyond the control and without the
fault or negligence of the party claiming excusable delay.
14.0 MATERIAL BREACH. In the event of any material breach of this Agreement by
one party, the other party may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate the License
involved, in whole, by giving thirty (30) days' written notice thereof;
provided, however, that any such termination shall not be effective if the party
in breach has cured the breach of which it has been notified prior to the
expiration of said thirty (30) days.
15.0 ADVERTISING OR PUBLICITY. Neither party shall use the name or marks, refer
to or identify the other party in advertising or publicity releases, promotional
or marketing correspondence to others without first securing the consent of such
other party.
16.0 ASSIGNMENT. Neither party may assign this Agreement, any Schedule and/or
any rights and/or obligations hereunder without the written consent of the other
party and any such attempted assignment shall be void; provided, however, that
iBIZ may assign this Agreement, any Schedule and/or any of its rights and/or
obligations hereunder to any iBIZ Entity upon written notice to Licensor without
the consent of Licensor.
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17.0 GOVERNING LAW. In all respects this Agreement shall be governed by the
substantive laws of the State of Arizona without regard to conflict of law
principles.
18.0 MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER. No modification, course of
conduct, amendment, supplement to or waiver of this Agreement, any Schedule. or
any provisions hereof shall be binding upon the parties unless made in writing
and duly signed by both parties. At no time shall any failure or delay by either
party in enforcing any provisions, exercising any option, or requiring
performance of any provisions, be construed to be a waiver of same.
19.0 SEVERABILITY. If any of the provisions of this Agreement are held invalid,
illegal or unenforceable, the remaining provisions shall be unimpaired.
20.0 HEADINGS. Headings are for reference and shall not affect the meaning of
any of the provisions of this Agreement.
21.0 ENTIRE AGREEMENT. The attachments (if applicable), to this Agreement are
incorporated by this reference and shall constitute part of this Agreement. This
Agreement constitutes the entire agreement between the parties pertaining to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives.
INKVERSE, LLC iBIZ TECHNOLOGY CORPORATION
(iBIZ)
By:____________________________________ By:______________________________
Name/Title:____________________________ Name/Title:______________________
(Print, Stamp or Type) (Print, Stamp or Type)
Date:__________________________________ Date:____________________________
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