PATENT PURCHASE, LICENSE AND REPURCHASE AGREEMENT
This Patent Purchase, License and Repurchase Agreement is made
effective as of the Effective Date (defined below) between:
IPIX Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "IPIX")
and
AdMission, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "AdMission")
IPIX and AdMission may be referred to individually as a "Party," and
collectively as the "Parties."
WHEREAS, IPIX owns or controls title to certain patents and patent
applications and IPIX is willing to transfer and sell all right, title and
interest to such patents and patent applications to AdMission in connection
with, and in consideration for, the execution, delivery and performance of that
certain Asset Purchase Agreement by and among IPIX and AdMission dated as of
January _____, 2005 (the "Asset Purchase Agreement"), provided, however, that
IPIX is willing to make such transfer and sale to AdMission if, and only if,
AdMission enters into this Agreement and grants back to IPIX a license of such
patents and patent applications and the repurchase right on the terms and
conditions set forth herein.
WHEREAS, AdMission is willing to purchase and accept title to the
Patents subject to the terms and conditions set forth herein and desires to
grant a license back and the repurchase right to IPIX the patents and patent
applications as provided herein.
WHEREAS, IPIX is prepared to accept such license and the right to
repurchase the Patents.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Affiliate. Any corporation or other legal entity that either
directly or indirectly controls a Party to this Agreement, is controlled by
such Party, or is under common control of such Party. As used herein, the term
"control" means possession of the power to direct or cause the direction of the
management and policies of a corporation or other entity, whether through the
ownership of the majority of voting securities, by contract, or otherwise.
1.2 Effective Date. The "Effective Date" shall mean the last date
that either Party hereto signs this Agreement.
1.3 Knowledge. The term "Knowledge" shall have the meaning given such
term in the Asset Purchase Agreement.
1.4 Marketplace Definition. Except for the specific exclusions relating to
the Security Sector, AdMission intends to fully exploit the intrinsic commercial
value of the Patents and assets acquired in this transaction. The sectors in
which AdMission will participate include, but are not limited to, the following
areas of commerce and digital media sharing for both online and print, as such
may be modified, amended or supplemented from time to time, by the Board of
Directors of AdMission: a) online search: local, national, and international; b)
publishing; c) yellow pages directories; d) directories: industrial, commercial,
and consumer; e) newspapers: local, regional, national, and international; f)
real estate retail sales and aggregation; g) automotive sales; h) catalogs; i)
marketplaces: online, virtual, and physical; j) advertising: commercial,
classified, display, and consumer; k) auctions; l) appraisals; m) credit and
debit cards: media transfer n) dating, alumni, membership and personal affinity
building sites; and o) classified ads, all categories. Notwithstanding the
foregoing, field of use relating to the Security Sector are expressly excluded
from the Marketplace Definition and AdMission shall in no case participate in
and the Marketplace Definition shall in no case include or be amended to include
any sector relating to the Security Sector.
1.5 Patents. The patents and patent applications listed in Schedule
A, and any other application based in whole or in part upon such patents and
patent applications in any country (including divisional, renewal, substitute,
continuation, and continuation-in-part applications), and all patents which may
be granted thereon (including all reissues, reexaminations, and extensions
thereof).
1.6 Security Sector. Uses for security, surveillance, military,
police, or law enforcement.
1.7 . Triggering Event. For purposes of this Agreement a "Triggering
Event" shall mean an event where AdMission remains Insolvent and unable to meet
its current obligations for a period of three (3) months or longer.
ARTICLE II
TRANSFER
2.1 Assignment. Except as otherwise set forth herein, IPIX hereby
sells, assigns, and transfers to AdMission all of the IPIX's right, title and
interest in the Patents.
2.2 Encumbrances. AdMission acknowledges that the Patents are subject
to various preexisting licenses and agreements, and agrees to take title to the
Patents subject to such preexisting licenses and agreements and to the License
granted to IPIX hereunder.
ARTICLE III
IPIX REPRESENTATIONS AND WARRANTIES
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As a material inducement to AdMission to enter into this Agreement and
to consummate the transactions contemplated by this Agreement, IPIX represents
and warrants to AdMission, as of the date hereof:
3.1 Organization. IPIX is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own and
operate the Patents.
3.2 Authority of IPIX. IPIX has full power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by IPIX and is
the legal, valid and binding agreement or instrument of IPIX, enforceable
against IPIX in accordance with its terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The execution, delivery and performance of this Agreement
does not require the consent of or notice to any third-party. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will conflict with or result in any violation
of or constitute a default under any term of the Articles of Incorporation or
Bylaws of IPIX, or any agreement, mortgage, debt instrument, indenture, or other
instrument, judgment, decree, order, award, law or regulation by which IPIX is
bound, or result in the creation of any lien, security interest, charge or
encumbrance upon the Patents, except if such conflict violation, default, lien
or encumbrance would not have a Material Adverse Effect.
3.3 Intellectual Property.
(a) To the Knowledge of IPIX, IPIX has sole title to and ownership of the
Patents.
(b) To the Knowledge of IPIX, Schedule A lists each currently effective or
pending patent and patent application (including all provisional applications,
continuations and continuations-in-part), in each case, included in the Patents.
(c) To the Knowledge of IPIX, no action, suit, proceeding or claim with
respect to the Patents has been instituted, or is pending or threatened against
IPIX.
ARTICLE IV
ADMISSION Representations and Warranties
As a material inducement to IPIX to enter into this Agreement and to
consummate the transactions contemplated by this Agreement, AdMission represents
and warrants to IPIX, as of the date hereof:
4.1 Organization. AdMission is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own or lease all
of its assets and to carry on its business as now conducted.
4.2 Authority of AdMission. AdMission has full power and authority to
enter into this Agreement and to consummate the transactions contemplated
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hereby. This Agreement has been duly authorized, executed and delivered
by AdMission and is the legal, valid and binding agreement or instrument of
AdMission, enforceable against AdMission in accordance with its terms, except as
such enforceability may be limited by principles of public policy and subject to
the laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies. The execution, delivery and performance of
this Agreement do not require the consent of or notice to any third-party.
Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated thereby will conflict with or result in any violation
of or constitute a default under any term of the Articles of Incorporation or
Bylaws of AdMission, or any agreement, mortgage, debt instrument, indenture, or
other instrument, judgment, decree, order, award, law or regulation by which any
of AdMission is bound, or result in the creation of any lien, security interest,
charge or encumbrance upon the assets of AdMission, or result in the
cancellation, modification, revocation or suspension of any license,
certificate, permit or authorization held by AdMission.
4.3 Due Diligence. In making its determination to proceed with the
transactions contemplated by this Agreement, AdMission has relied solely on the
results of its own independent investigation and the representations and
warranties of IPIX set forth in Article III, including the schedules thereto.
Such representations and warranties by IPIX constitute the sole and exclusive
representations and warranties of IPIX to AdMission in connection with the
transactions contemplated hereby, and AdMission acknowledges and agrees that
IPIX is not making any representation or warranty whatsoever, express or
implied, beyond those expressly given in this Agreement, including any implied
warranty as to condition, merchantability or suitability as to any of the
Patents and it is understood that AdMission is taking the Patents as is and
where is. AdMission has no knowledge that any of the representations and
warranties of IPIX in this Agreement is not true and correct, and AdMission
has no knowledge of any errors in, or omissions from, the information set forth
in the schedules to this Agreement.
ARTICLE V
License and Repurchase
5.1 License. AdMission grants to IPIX an exclusive (including
exclusive to AdMission), worldwide, royalty-free, paid-up, transferable,
perpetual license, which is revocable only as specifically set forth herein,
to make, have made, use, sell, offer for sale, lease, import, or otherwise
exploit any invention covered by the Patents, but only in the Security Sector
(the "License").
5.2 Sublicenses.
(a) IPIX may freely, and without consultation with AdMission, sublicense
any all rights contained in the License to its Affiliates, customers, end-users,
distributors, manufacturers, vendors, or anyone otherwise involved in or
supporting IPIX's commercial activities for any use relating to IPIX branded
activities.
(b) If IPIX wishes to sublicense any rights contained in the License to its
Affiliates, customers, end-users, distributors, manufacturers, vendors, or
anyone otherwise involved in or supporting IPIX's commercial activities for the
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use of the License for activities which are not IPIX branded activities, IPIX
shall first obtain the prior written consent of AdMission, which shall not be
unreasonably withheld or delayed. Any objection to such sublicensing shall be
set out in writing together with the reasons therefor, and AdMission's failure
to provide such an objection within thirty (30) days after receipt of IPIX's
written request shall be deemed irrevocable consent to such sublicensing.
(c) For the purposes of this License, "IPIX branded activities" means any
activities for which any resulting product or service shall use or contain the
IPIX name or logo or which shall be incorporated into any product or service
which uses or contains the IPIX name or logo.
5.3 Scope Extension. If, within 36 months of the commencement of this
Agreement, IPIX determines that it is necessary to extend License beyond the
Security Sector for the pursuit of its own core business strategy, then IPIX
shall have the right to seek AdMission's consent to extend the scope of the
license, which consent shall not be unreasonably withheld, provided that such
extension does not infringe upon or compete with AdMission's core business
activities as set forth in the Marketplace Definition. Any extension of the
scope of the License shall be considered part of the original License and shall
also be an exclusive (including exclusive to AdMission), worldwide,
royalty-free, paid-up, transferable and perpetual license which is revocable
only as specifically set forth herein. However, the right to extend the scope
of the License shall be non-transferable and shall apply only to "IPIX" branded
activities. The Company's consent to extend the scope of the License under
these circumstances shall not be unreasonably withheld. If the Parties are
unable to reach an agreement regarding an extension, then either Party may
submit the dispute to binding arbitration to determine fair and equitable terms.
5.4 Repurchase.
(a) In case of a Triggering Event by AdMission at any point during the
first thirty-six (36) months of this Agreement, IPIX will have the non-
assignable right to repurchase the Patents (hereinafter, "Repurchase Right") in
exchange for payment by IPIX of the "Repurchase Right Payment." The Repurchase
Right Payment shall be an amount calculated by dividing the numerator (36 months
minus the number of complete months from the Effective Date to the date of the
Triggering Event) by the denominator of 36 (the term of the Repurchase Right
being 36 months) and multiplying that number times $700,000. This Repurchase
Right shall irrevocably expire on the third anniversary from the Effective Date
of this Agreement.
(b) In the event of a Change in Control of IPIX, AdMission will have the
non-assignable first right of refusal to buy back the Repurchase Right at the
then current fair market value. For purposes of this Section 5.4(b), a "Change
of Control" shall mean the acquisition of IPIX by another person or entity by
means of any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation, or acquisition directly
or indirectly, of the securities of IPIX representing more than fifty percent
(50%) of the total voting power represented by IPIX's then outstanding voting
securities, but excluding any merger effected exclusively for the purpose of
changing the domicile of IPIX), (b) a sale, conveyance or disposition of all or
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substantially all of the assets of IPIX, or (c) any reorganization, merger,
consolidation or similar transaction in which IPIX is not the surviving entity
(unless, IPIX's stockholders of record as constituted immediately prior to such
acquisition, sale, conveyance, disposition, reorganization, merger,
consolidation or similar transaction will, by virtue of such shares of IPIX held
immediately prior to such transaction, immediately after such acquisition, sale,
conveyance, disposition, reorganization, merger, consolidation or similar
transaction hold at least 50% of the voting power of the surviving or acquiring
entity immediately after such acquisition, sale, conveyance, disposition,
reorganization, merger, consolidation or similar transaction).
5.5 No Encumbrance. AdMission shall agree not to sell, transfer or
encumber the Patents or take any other action which could reasonably be expected
to hinder or interfere with IPIX's exercise of the Repurchase Right.
5.6 Information Rights. AdMission shall promptly provide IPIX with
the information set forth in this Section 5.6. IPIX's right to this financial
information shall continue for thirty-six (36) months from the Effective Date.
Any such financial information disclosed under this section shall be deemed
confidential and proprietary to AdMission and IPIX shall comply with the
confidentiality requirements as set forth in the Asset Purchase Agreement.
AdMission shall provide IPIX with the following:
(a) as soon as practicable, but in any event within ninety (90) days after
the end of each fiscal year of AdMission, a balance sheet and income statement
as of the last day of such year; a statement of cash flows for such year, such
year-end financial reports to be in reasonable detail, prepared in accordance
with generally accepted accounting principles ("GAAP") and audited and certified
by independent public accountants selected by AdMission;
(b) as soon as practicable, but in any event within forty-five (45) days
after the end of each of the first three (3) quarters of each fiscal year of
AdMission, an unaudited balance sheet and income statement prepared in
accordance with GAAP (except that the financial report may (i) be subject to
normal year-end audit adjustments and (ii) not contain all notes thereto which
may be required in accordance with GAAP), as well as an accounts payable aging
reflecting, for each account payable, the date of the invoice that gave rise to
the payable and whether such payable is in bona fide dispute, certified by the
Chief Financial Officer or Chief Executive Officer of AdMission as being true,
complete and correct;
(c) as soon as practicable, but in any event within forty-five (45) days
after the end of each of the first three (3) quarters of each fiscal year of
AdMission, a statement showing the number of shares of each class and series of
capital stock and securities convertible into or exercisable for shares of
capital stock outstanding at the end of the period, the number of common shares
issuable upon conversion or exercise of any outstanding securities convertible
or exercisable for common shares and the exchange ratio or exercise price
applicable thereto and number of shares of issued stock options and stock
options not yet issued but reserved for issuance, if any, all in sufficient
detail as to permit IPIX to calculate its percentage equity ownership in
AdMission and certified by the Chief Financial Officer or Chief Executive
Officer of AdMission as being true, complete and correct;
(d) with respect to the financial statements called for in subsections (a),
(b) and (c) of this Section 5.5, an instrument executed by the Chief Financial
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Officer and President or Chief Executive Officer of AdMission and certifying
that such financials were prepared in accordance with GAAP consistently applied
with prior practice for earlier periods (with the exception of footnotes that
may be required by GAAP) and fairly present the financial condition of AdMission
and its results of operation for the periods specified therein, subject to
year-end audit adjustment;
(e) upon written request by IPIX, provide a certificate executed by the
Chief Executive Officer of AdMission affirming that AdMission is not Insolvent,
as defined herein, AdMission is currently able to meet its current obligations,
and AdMission will be able to meet its current obligations for the next three
months; and
(f) promptly provide IPIX with such other information relating to the
financial condition, business, prospects or corporate affairs of AdMission or
any other relevant information regarding the occurrence of any Triggering Event
as IPIX may from time to time reasonably request, provided, however, that
AdMission shall be permitted to exclude from such disclosures any proprietary
information relating to the AdMission business.
5.7 Inspection Rights. AdMission shall permit IPIX, at IPIX's
expense, to visit and inspect AdMission's properties, to examine its books of
account and records and to discuss AdMission's affairs, finances and accounts
with its officers, all at such reasonable times as may be reasonably requested
by IPIX; provided, however, that AdMission shall not be obligated pursuant to
this Section 5.7 to provide access to any information which it reasonably
considers to be a trade secret or similar confidential information.
5.8 Definitions.
(a) For purposes of this Section, "Insolvent" shall mean (a) the sum of
AdMission's debts and obligations is greater than AdMission's assets, at a fair
valuation, without taking into account any value for assets that consist of
inchoate legal claims and chooses in action; or (b) the sum of AdMission's debts
and obligations, as reflected on AdMission's balance sheet prepared in
accordance with GAAP, exceeds the sum of the book value of AdMission's assets,
as reflected on its balance sheet prepared in accordance with GAAP.
(b) For purposes of this Section, the phrase "unable to meet its current
obligations" shall mean, among other things, AdMission's failure to pay bona
fide obligations within ninety (90) days of the date of invoice of such
obligation.
(c) In the event of that AdMission is Insolvent or unable to meet its
current obligations as defined above, AdMission shall immediately notify IPIX in
writing of its financial condition.
5.9 Essential Element. IPIX and AdMission specifically agree that the
Repurchase Right granted to IPIX is an essential element of the license granted
to IPIX under this Agreement, and that the Repurchase Right is a right of the
licensee under 11 U.S.C. Section 365(n) and is enforceable by IPIX under 11
U.S.C. Section 365(n).
5.10 Termination upon Qualified Initial Public Offering or Qualified
Liquidation Event. Notwithstanding any other term of this License, the rights
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set forth in Section 5.4 above shall terminate and be of no further effect upon
the occurrence of a "Qualified Initial Public Offering" or a "Qualified
Liquidation Event."
(a) For purposes of this License a "Qualified Initial Public Offering"
shall mean an initial public offering of the equity of AdMission resulting in
gross proceeds to AdMission of $10,000,000, net of all underwriters' discounts
and offering expenses.
(b) For purposes of this License a "Qualified Liquidation Event" shall mean
any reorganization, merger, consolidation or similar transaction in which
AdMission is not the surviving entity and for which AdMission or its
stockholders receive not less than $20,000,000_ (the value of any consideration
other than cash received in such a transaction shall be determined by the fair
market value as determined by an independent third party jointly chosen by the
Board of Directors of AdMission and IPIX).
5.11 Specific Performance. The parties acknowledge and agree that damages
would not be an adequate remedy for the failure of IPIX to receive the Patents
upon a Triggering Event pursuant to the Repurchase Right and, accordingly, it is
the intent of the parties that the ability to exercise the Repurchase Right
shall be enforceable by an action for specific performance and in connection
therewith, IPIX shall be entitled to reduce the amount of the Repurchase Right
Payment by the amount of IPIX's actual out-of-pocket expenses (including,
without limitation, reasonable attorneys', paralegals', accountants' and
consultants' fees) incurred in connection with IPIX's enforcement of the
Repurchase Right, including without limitation any proceeding or defense against
any other competing claim to the Patents.
5.12 Security Interest. In order to secure and further assure IPIX's
license rights to the Patents, including without limitation the ability to
perfect and enforce the Repurchase Right, in the event of a Triggering Event
which occurs within thirty-six (36) months from the Effective Date of this
Agreement, AdMission hereby grants to IPIX a security interest in and a lien
upon any and all right, title and interest of AdMission in and to the Patents,
and all proceeds thereof, to secure the license rights of IPIX hereunder with
respect to the Patents, including without limitation the right to enforce the
Repurchase Right. Such security interest shall terminate thirty-six (36) months
after the Effective Date. With respect to such security interest, IPIX shall
have all of the rights and remedies of a secured party under the Uniform
Commercial Code of the State of Delaware. AdMission hereby authorizes IPIX to
execute and deliver and/or file all assignments, conveyances, statements,
financing statements, continuation financing statements, security agreements,
affidavits, notices and other agreements, instruments and documents that IPIX
may determine necessary in order to perfect and maintain the security interests
and liens granted in this Section 5.12 only in such case of a Triggering Event
and in order to fully consummate all of the transactions contemplated herein.
ARTICLE VI .
Maintenance and Enforcement
6.1 Maintenance. AdMission shall use commercially reasonable efforts
to maintain and prosecute the Patents licensed under this Agreement, which shall
be done at AdMission's discretion and expense.
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6.2 Enforcement. IPIX shall have the right to enforce the Patents
against any third party infringers in the Security Sector. Only in the event
that IPIX elects not to enforce the Patents against third party infringers in
the Security Sector, then AdMission shall have the right to enforce the Patents
against any third party infringers in the Security Sector. IPIX shall notify
AdMission in writing before initiating any enforcement action in the Security
Sector. IPIX shall exercise the same degree of vigilance and care in enforcing
its rights under this Agreement as it does in protecting and enforcing its own
intellectual property portfolio. AdMission shall have the exclusive right to
enforce the Patents against any third party infringers outside the Security
Sector.
(a) In the event of any infringement or threatened infringement of a Patent
by a third party, a Party may initiate an enforcement action against the
infringing or potentially infringing party if the infringing activities fall
within the scope of their area of exclusive enforcement. If a Party does not
initiate an action within 3 months after the other Party provides notice to such
Party of the infringement or threatened infringement, then, notwithstanding the
scope of the other Party's area of exclusive enforcement, the other Party may
initiate an action. Such notice shall reference this Agreement and this Section
6.2(a), and expressly state the intention of the Party giving such notice to
initiate an action. Failure by either Party to initiate an action within 6
months from the date such notice is received shall constitute a withdrawal
without prejudice of the notice.
(b) In the event of any infringement or threatened infringement of a Patent
by a third party involving substantial infringing activities within the scope of
the Security Sector, then the Parties shall meet and confer as to how to proceed
in enforcing the Patent. If both Parties desire to initiate an action, then the
Parties shall in good faith negotiate terms on how to conduct and participate in
the action. IPIX shall be the sole recipient of any proceeds resulting from any
enforcement of a Patent in the Security Sector. IPIX shall not initiate an
action until a negotiated agreement is reached.
(c) In the event either Party initiates an action enforcing a Patent
against a third party, the other Party shall provide commercially reasonable
assistance in connection with such action, including, without limitation joining
the action as a party. The initiating Party shall be entitled to keep any
proceeds as a result of such action, subject to reimbursing the other Party for
all reasonable out-of-pocket expenses and legal fees incurred in rendering
assistance in connection with such action. Such reimbursement shall be due and
payable after a final and non-appealable judgment. The initiating Party shall
keep the other Party informed of material events for dialogue and comment. In
any event, the filing Party shall provide advance notice of any action and shall
provide copies of all pleadings.
6.3 Joinder. As AdMission and IPIX both have an interest relating to
the Patents, the disposition of an action under Section 6.2 in the absence of
one Party may as a practical matter impair or impede the absent Party's ability
to protect that interest or leave the absent Party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations. If the
absent Party seeks joinder in an action, the other Party shall not oppose such
joinder and shall, at the absent Party's request, provide commercially
reasonable assistance to achieve such joinder.
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6.4 Settlements. IPIX shall not settle any action under Section 6.2
with a third party without AdMission's prior written approval, which approval
shall not be unreasonably withheld or delayed.
6.5 Marking. The Parties agree that for each article sold to an
end-user covered by a Patent, it will use commercially reasonable efforts to
affix thereon the word "patent" or the abbreviation "▇▇▇.", together with
the number of the patent, or when, from the character of the article, this can
not be done, by fixing to it, or to the package wherein one or more of them is
contained, a label containing a like notice.
ARTICLE VII
Term and Termination
7.1 Term. This Agreement shall commence upon mutual execution by the
Parties of this Agreement. This Agreement shall remain in effect until all
Patents expire.
7.2 Remedies. The Parties to this Agreement recognize that the
Patents being transferred, the License being granted, and the Repurchase Right
granted hereunder possess a special, unique and extraordinary character, which
makes it difficult to assess the monetary damages which would result in the
event of a breach of this agreement. Each of the Parties expressly recognizes
and agrees that an irreparable injury would be caused to the other Party by such
material breach, and agrees that preliminary or permanent injunctive relief is
appropriate in the event of a breach of this Agreement. Notwithstanding the
foregoing, the Parties will retain any other remedies available resulting from
a breach of this Agreement. The rights set forth in this Section 7.2 are in
addition to the rights set forth in Section 5.11.
ARTICLE VIII
Warranties
8.1 No Warranties. Each Party acknowledges that it has not entered
into this Agreement in reliance upon any warranty or representation.
8.2 Disclaimer. THE PARTIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY FOR
COMPUTER PROGRAMS, AND INFORMATIONAL CONTENT.
ARTICLE IX
Miscellaneous
9.1 Transferable. Except as otherwise provided, this Agreement may be
assigned by either Party, and the assigning Party shall provide notice of such
assignment to the other Party. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Parties. Notwithstanding
the foregoing, the right to Extend the Scope of the License in Section 5.3 and
the Repurchase Right set forth in Section 5.4 shall be non-assignable by IPIX
without the express written permission of AdMission.
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9.2 Governing Laws. This Agreement shall be construed and governed in
accordance with the substantive laws of the State of Delaware, without regard to
conflict of laws principles. Venue for any and all actions shall be in Contra
Costa County, San Ramon, California.
9.3 Binding Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by American Arbitration Association in accordance with
its Commercial Arbitration Rules including the Emergency Interim Relief
Procedures, and judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. The arbitration shall have a single
arbitrator and shall be conducted in San Francisco, California.
9.4 Notices. All notices under this Agreement must be to the Party's
General Counsel (and if the Party does not have a General Counsel, then to its
President) in writing through (i) hand delivery, or (ii) nationally recognized
overnight or next day delivery service addressed to the Party's then current
corporate headquarters. Such notice shall reference this Agreement and this
Section 9.4. Notice shall be effective upon hand delivery or delivery by the
service, as the case may be.
9.5 Force Majeure. Nonperformance by either Party will be excused to
the extent that performance is rendered impossible by storm, lockout or other
labor trouble, riot, Internet infrastructure failure, hacker attack, computer
virus, war, rebellion, strike, fire, flood, accident or other act of God,
governmental acts, orders or restrictions, or any other reason where failure to
perform is beyond the control, and not caused by the gross negligence or willful
misconduct of, the non-performing Party.
9.6 Unenforceability. It is intended that this Agreement shall not
violate any applicable law. If, at any time or for any reason, any provision
becomes unenforceable or invalid, such provisions shall be amended to bring them
into legal compliance and to preserve to the maximum extent possible the intent
of the Parties and the remaining provisions shall remain unaffected and continue
with the same effect as if such unenforceable or invalid provision had not have
been inserted herein.
9.7 No Waiver. Failure of either Party to exercise its rights under
this Agreement shall not be construed as a waiver of that Party's rights,
including without limitation the right to seek remedies arising from past,
present or future breach by the other Party.
9.8 Interpretation. This Agreement shall be construed fairly and
there shall be no presumption or inference against the drafting Party in
construing or interpreting the provisions hereof. The headings and captions in
this Agreement are for convenience purposes only, and shall not be used to
construe the terms of this Agreement.
9.9 Intellectual Property. This Agreement, in its entirety,
constitutes an executory contract under which AdMission is the licensor and
IPIX is the licensee of a right to intellectual property. As such, 11 U.S.C.
365(n) shall apply to this Agreement in its entirety.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11
9.11 Relationship of the Parties. IPIX is not an employee of AdMission, nor
is AdMission an employee of IPIX. Nothing in this Agreement shall be construed
as creating an employer-employee relationship, partnership, joint venture or
agency between the Parties and neither Party shall have the right, power or
authority to create any obligation, express or implied, on behalf of the other.
9.12 Limitations of Liability. Notwithstanding any other provision in this
Agreement to the contrary, under no circumstances shall AdMission be liable for
any indirect, incidental, special or consequential damages, including damages
arising from lost revenue, profits, data or use arising out of the use of the
Patent by IPIX in accordance with the terms of this Agreement, even if AdMission
has been advised of the possibility of such damages. Notwithstanding any other
provision in this Agreement to the contrary, under no circumstances shall IPIX
be liable for any indirect, incidental, special or consequential damages,
including damages arising from lost revenue, profits, data or use arising out of
the use of the Patents by AdMission in accordance with the terms of this
Agreement, even if IPIX has been advised of the possibility of such damages.
9.13 Entire Agreement. This Agreement and its Schedules contain the entire
understanding between the Parties with respect to the matters contained herein.
This Agreement supercedes all prior agreements between the Parties, whether oral
or written, express or implied, as to the matters contained herein. No waiver,
consent, modification, amendment or change of the terms of this Agreement shall
be binding unless in writing and signed by the Parties.
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As duly authorized representatives of the Parties and after consultation
with their respective legal counsel, the undersigned declare that they
understand and agree to be bound by the Agreement as an enforceable contract.
This Agreement shall be effective as of the last date written below.
IPIX Corporation AdMission, Inc.
______________________________ _______________________________
Signature Signature
______________________________ _______________________________
Name Name
______________________________ _______________________________
Title Title
______________________________ _______________________________
Date Date
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Schedule A
Patents
Patent No. 6,732,162 (issued 05/04/04) Method of Providing Preprocessed Images
for a Plurality of Internet Web Sites
Application No. 10/736,285 (filed 12/15/03) Method or Providing Preprocessed
Images for a Plurality of Internet Web Sites
Application No. 09/357,836 (filed 7/21/99) Web-based Media Submission Tool
(Allowed)
Application No. 10/961,720 (filed 10/8/04) Web-Based Media Submission Tool
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