Exhibit 10.9
LICENSE AGREEMENT
BETWEEN
THE CHILDREN'S INTERNET, INC.
AND
INFOLINK COMMUNICATIONS, LTD.
This Agreement ("Agreement") is made and entered into on this 14th day of
August 2003, by and between INFOLINK COMMUNICATIONS, LTD., an Illinois
corporation ("INFOLINK"), whose principal business address is 0000 Xxxx Xxxxxx,
Xxxxx #0X, Xxxxxxx, XX 00000 and THE CHILDREN'S INTERNET, INC., a Nevada
Corporation, ("TCI") whose mailing address is 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000. This Agreement (Agreement) is made with reference to the
following facts:
A. TCI is the owner of all right, title, and interest in and to
children's oriented material and programming disseminated over the
global computer network and a secured Internet service currently being
used and sold as The Children's Internet(TM) including,
but not limited to a search engine, browser, secure e-mail system,
education and entertainment portals, and all its proprietary
characters and content, web pages, and home rooms (the "Product").
B. INFOLINK is a sale organization in the Internet Infrastructure
industry, and desires to sell and market the product and services of
TCI to the U.S. Government and related agencies ("GOVERNMENT") as well
as CORPORATE SPONSORS.
C. INFOLINK will compensate TCI for The Children's Internet(TM) product
to the extent provided in this agreement.
D. INFOLINK and TCI declare their intention that nothing in this
Agreement shall make either party an employee,partner, or agent of the
other party and that the relationship of TCI to INFOLINK shall be
that of an independent contractor.
NOW THEREFORE, in consideration of the mutual covenants and premises
contained herein, the parties agree as follows:
1. RELATIONSHIP OF PARTIES. The parties agree and intend that the
relationship between them created by this Agreement is that of
principal and independent contractor. Neither party is an employee of
the other party, and is not entitled to the benefits normally provided
to employees, including, but not limited to, medical insurance and/or
participation in any pension or profit-sharing plan. The conduct and
control of the work to be performed by INFOLINK under this Agreement
rests exclusively with INFOLINK. TCI and INFOLINK shall perform its
respective services in accordance with workmanlike and ethical
standards applicable and customary to the industry and profession.
Except as otherwise provided in this Agreement, either party shall be
free to provide its services for others in any manner whatsoever
during those periods when it is not performing services under this
Agreement.
2. SALES PROCESS. TCI hereby authorizes INFOLINK to perform the
functions allowed under this Agreement on a continuing basis, which
functions are generally described as follows:
0.0.Xxxxxxxx Products. INFOLINK shall be authorized to market the
products and services of TCI to the GOVERNMENT and CORPORATE
SPONSORS as provided herein. Except as specifically provided
herein, INFOLINK shall handle all pricing and contract management.
This shall include the sale of software products for which TCI will
be compensated by INFOLINK as provided in this agreement.
2.2.Pricing. INFOLINK shall set the rates and charges for their
products and services.
2.3.Paperwork. INFOLINK shall submit original and final contracts and
required paperwork to TCI with each new order of services.
INFOLINK shall ensure that at all times TCI has the most recent and
current paperwork for all products and services. TCI shall have the
right to approve all contracts prior to acceptance by INFOLINK.
0.0.Xxxxxxx Materials. TCI agrees, with its best efforts, to provide
the following support materials and/or services to INFOLINK:
2.4.1 TCI shall provide, with its best efforts, any technical data,
descriptions, or other information, concerning the products
and/or services of TCI to be marketed by INFOLINK. TCI shall
inform INFOLINK of any and all additions, modifications or
changes to the products and/or services of TCI on a recurring
monthly basis during the term of this Agreement. This shall
include any updates and enhancements of the software.
2.4.2 TCI shall provide, with its best efforts, and at INFOLINK's
cost, marketing materials and procedures to enable INFOLINK to
perform its obligations pursuant to this Agreement.
2.5.Technical Support. TCI and INFOLINK shall mutually agree and
define in a separate addendum Tier 1 and Tier 2 technical support.
In general TCI shall process service requests for Tier 2 Support
from INFOLINK for the use of the services and/or products of TCI.
INFOLINK shall provide the first response to any and all inquiries
from such customers concerning the products and/or services of TCI.
TCI agrees that INFOLINK may forward all Tier 2 calls placed to
INFOLINK by its customers for Tier 2 Support to TCI for the
purposes of TCI answering any questions or service concerns. In no
event shall TCI be required to provide Tier 1 Support.
0.0.Xxxxxxxx.XXX shall provide training to the sales and support staff
of INFOLINK free of charge at TCI's training location at a mutually
agreeable time. Such training shall consist of a one-day
familiarization of the TCI software and marketing. From time to time
and as mutually agreeable, TCI will provide training on software
updates. Where feasible and practicable, TCI may conduct such
training utilizing online technology such as WebEx Communications,
Inc. or other WEB providers of online conferencing. All travel costs
shall be paid by INFOLINK.
2.7.Demonstration Disks. TCI shall provide INFOLINK with demonstration
disks at no charge for trial and promotion purposes only.
2.8.Operations by TCI. TCI represents that it will maintain a mutually
agreed written service level for the service provided under this
agreement. TCI represents that it will maintain the necessary
enhancements and updates needed for the software to maintain the
level of service for services provided under this agreement.
3. COMPENSATION.
3.1.INFOLINK Compensation. INFOLINK hereby acknowledges that it
receives all of its consideration under this Agreement through its
contracts with the Government and with Corporate Sponsors. TCI
shall not be responsible for any payment to INFOLINK for any
service provided hereunder, regardless of whether INFOLINK has
received any payment from a customer.
0.0.XXX Compensation. TCI shall receive $4.05 per software product
per month. Such payment shall be made to the extent that the
Government or the Corporate Sponsors has contracted for such
software product and to include any renewals. Such amounts shall
be paid to TCI on the 10th day of each month for all amounts earned
in the one-month period beginning one month prior to such payment
date.
3.3.Reports. For purposes of reporting to the Government or to the
Corporate Sponsors by INFOLINK for compliance, TCI shall generate
reports in a form determined by INFOLINK and acceptable to TCI.
Such usage report shall be for statistical reporting purposes only
and may not be used for any other purpose.
3.4.Advance Xxxxxxx.Xx the event that INFOLINK is compensated (as
defined in Section 3.1 of the agreement) on a lump sum basis (as
opposed to a monthly basis) with an advance lump sum payment from
either the Government or Corporate Sponsors, then INFOLINK shall
pay TCI within 7 days of receiving such lump sum payment for TCI's
Product, whether TCI software is sold individually as a stand alone
product, or as part of a bundled package. For example if the TCI
product is loaded onto 1,000 computers that is sold as part of a
bundled package that includes a 3 year subscription for TCI
services, then TCI would be entitled to an advance payment of
$145,800 (1,000 PC's x $4.05 x 36 months = $145,800). In the
event that TCI receives advance payment and later fails to provide
Tier 2 technical support as required by Section 2.5 of the
agreement, TCI shall indemnify and hold harmless INFOLINK for any
additional cost incurred by INFOLINK to provide Tier 2 technical
support. In the event that TCI receives advance payment and later
fails to continue to provide products and services as required
under the agreement with the Government, TCI shall return that pro
rata amount of the advance payment received corresponding to the
remaining term covered by the Agreement with the Government to the
extent that TCI has received advance payment. The obligations of
TCI shall survive the sale of TCI or substantially all of the
assets of TCI and TCI shall make adequate provision for the
survival of this section in any such transaction.
4. TERM; TERMINATION.
4.1.Term. The services to be provided by TCI shall commence
concurrently with the date of this Agreement, and shall continue
for a period of three (3) years. This Agreement shall
automatically renew for three (3) additional one (1) year terms
unless a party gives the other party at least thirty (30) days
notice prior to the expiration of the then current term of its
intention to terminate this contract.
4.2.Termination for Breach. Either party may terminate this Agreement
on thirty (30) days prior written notice for material breach of
this Agreement that is not cured during such notice period. For
purposes of this Agreement, termination for "breach" shall include,
but shall not be limited to, making misrepresentations to
prospective customers, criminal acts, disclosing confidential
information, willful misconduct, gross negligence, fraud,
unethical, any other illegal conduct, or non-payment of
compensation under this agreement as well as failure to provide
Tier 2 technical support as required by Section 2.5.
4.3.Bankruptcy. Either party may terminate this Agreement upon written
notice to the other party, if such party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors or becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
4.4.Effect of Termination. In the event this agreement is terminated
for any reason, other than a breach by TCI, INFOLINK shall continue
to pay TCI all amounts otherwise due to TCI until the expiration of
each contract signed by TCI or its customer hereunder. In
addition, TCI will continue to provide all services to the
customers of INFOLINK under this agreement for the term of the
customer's contracts plus renewals for which TCI has been prepaid
or paid that it provides under this agreement for which TCI has
been prepaid or paid until such time as INFOLINK notifies TCI that
no such services are necessary. In the event TCI continues to
provide such services, the compensation as defined in Section 3.2
and 3.4 shall not be adjusted. TCI shall continue to provide
services to the customers of INFOLINK under this agreement to the
extent that TCI has been prepaid or paid even if the term of the
contract extends beyond the term of this agreement including
termination under Section 4.2 of this agreement. In the event
this agreement is terminated by breach by TCI as defined in Section
4.2, INFOLINK may obtain the product and services from other
parties and the compensation of TCI shall be reduced accordingly to
the extent that TCI has been paid or received advanced payment for
services and products not provided.
4.5.Termination of Payment Obligation to TCI. If this section is
inconsistent with any other section of this agreement, this section
shall apply. In the event that payment from any customer of
INFOLINK ceases for any reason, no further compensation will be
owed by INFOLINK to TCI except to the extent that INFOLINK has
been, in fact, paid by the customer. In the event that TCI
terminates this agreement under Section 4.2 and INFOLINK is not
being compensated by the customer, no further compensation will be
owed by INFOLINK to TCI except of the extent that INFOLINK has
been, in fact, paid by the customer.
5. INDEPENDENT ACTIVITIES.
5.1.Other Activities. Nothing contained in this Agreement (except as
provided in Section 6 of the agreement) shall prevent either party
from participating in activities not directly required for the
performance of its obligations pursuant to this Agreement. Such
participation or activities, whether in the telecommunications
field/industry or any other business activity engaged in for profit
or personal or professional advantage, shall be conducted
independently and without reference to the relationship between
INFOLINK and TCI.
6. INFOLINK EXCLUSIVE AGENCIES.
6.1.Exclusive Agency with Government, Corporate Sponsors, and Other
Parties. INFOLINK shall have the exclusive right to any customer
expressly agreed in advance by TCI. Both TCI and Infolink agree
that exclusivity may be necessary for Infolink in certain
instances.
0.0.XXX grants Infolink exclusivity with respect to the Government
Agencies and Corporate Sponsors attached in Exhibit B.
6.3.Term of Exclusivity The term of the exclusivity shall continue
during the full term of this agreement including any and all
extensions of this agreement except in those instances where
Infolink does not meet the Performance Standards in 6.4 below and
so long as TCI is the exclusive provider to INFOLINK for children's
internet services, security, technology, software and products.
6.4.Performance Standards. INFOLINK and TCI shall mutually agree in
writing on performance standards that must be met to maintain the
INFOLINK exclusivity with respect to each customer. If such
mutually agreed standards are not met, then the exclusivity for
that customer shall be immediately terminated unless TCI agrees in
writing to an extension thereof.
7. EXPENSES. INFOLINK and TCI shall not be reimbursed by the other
party for expenses incurred in connection with providing the services
hereunder, including, but not limited to, all automobile-related
expenses, travel and entertainment expenses, and any other amounts
expended by the parties in order to provide the services required by
this Agreement.
8. TAXES. INFOLINK shall not deduct any state or federal income tax or
FICA contributions from payments made to TCI. TCI agrees to make all
necessary FICA contributions and to pay any and all taxes in
accordance with applicable law and will hold INFOLINK harmless from
any liability or expense arising from or in connection with any
failure by TCI to pay such taxes, including interest and penalties.
TCI acknowledges that INFOLINK shall not make employment and SDI
deductions from payments made to TCI. INFOLINK shall not be required
to include TCI under any applicable workers' compensation insurance
program and/or policy, and TCI acknowledges that in the event of any
injury of any kind, TCI will not be entitled to any medical or other
disability benefits. Notwithstanding the foregoing, the fact that the
parties, at their own cost, may carry workers' compensation insurance
for its own benefit or for the mutual benefit of itself and those
contractors which are individuals providing the services as described
in this Agreement, shall not create any inference of employment,
partnership, or other agency relationship.
9. INDEMNIFICATION.
0.0.XXX Indemnity. TCI agrees to indemnify, defend and hold harmless
INFOLINK, from any and all claims, actions, judgments, demands,
costs, expenses, and/or liabilities, including, without limitation,
attorneys fees, which INFOLINK may incur or become liable for by
reason of any action by TCI arising out TCI's willful misconduct,
gross negligence, fraud, intentional misrepresentation, unethical
or illegal conduct, or any failure to abide by INFOLINK's
established policies and procedures in effect from time to time, or
applicable rules and regulations of any governmental agency or
authority having jurisdiction over TCI's activities on behalf of
INFOLINK as provided in this Agreement.
9.2.INFOLINK Indemnity. INFOLINK agrees to indemnify, defend and hold
harmless TCI, from any and all claims, actions, judgments, demands,
costs, expenses, and/or liabilities, including, without limitation,
attorneys fees, which TCI may incur or become liable for by reason
of any action by INFOLINK arising out INFOLINK's willful
misconduct, gross negligence, fraud, intentional misrepresentation,
unethical or illegal conduct, or any failure to abide by TCI's
established policies and procedures in effect from time to time, or
applicable rules and regulations of any governmental agency or
authority having jurisdiction over INFOLINK's activities on behalf
of TCI as provided in this Agreement.
10. PROPRIETARY INFORMATION AND NON-DISCLOSURE.
10.1.Confidential Information. TCI and INFOLINK acknowledge that they
may have access to and become aware of certain competitive
confidential information of the other, including personnel
information, rates and rate tables, secret processes, know-how,
customer lists, receipts, formulas, software, or other technical
data created and applied in connection with the services and/or
products provided and sold by the other.
10.2.Non Use. TCI and INFOLINK shall not use to their own advantage or
the advantage of any other person, business or entity, except as
specifically provided in this Agreement, either during their
association or at any time thereafter, any information gained for
or from the business, files, and/or records of the other. TCI and
INFOLINK acknowledge that such information is proprietary,
constitutes a trade secret, and shall not be disclosed to any third
party and that in the event of an unauthorized disclosure and/or
use of such information, significant damages will be incurred or
suffered by the other.
10.3.Breach. TCI and INFOLINK acknowledge that in the event of a
breach of this covenant of non-disclosure, in addition to any other
remedy, which may be available to the other, injunctive relief from
a court of competent jurisdiction is appropriate.
11. WARRANTY.
11.1.INFOLINK represents and warrants that
00.0.Xx has the full power and authority to enter into this Agreement
and to grant the rights contained herein to INFOLINK;
00.0.Xx shall perform all services described herein in a professional
and workmanlike manner and in accordance with industry standards.
11.4.There are no liens on the company, the assets of the company and
the software of TCI except as provided in Exhibit "A-1" to this
agreement.
11.5. TCI represents and warrants that:
00.0.Xx has the full power and authority to enter into this Agreement
and to grant the rights contained herein to INFOLINK;
00.0.Xx shall perform all services described herein in a professional
and workmanlike manner and in accordance with industry standards.
11.8.There are no liens on the company, the assets of the company and
the software of TCI except as provided in Exhibit "A" to this
agreement.
12.ARBITRATION. All disputes or claims between TCI and INFOLINK arising
from, in connection with, or in any way related to this Agreement,
which cannot be informally resolved between the parties, shall be
submitted to binding arbitration in the County of Contra Costa,
California for disposition in accordance with the rules and
regulations of the American Arbitration Association, as may be amended
from time to time.
00.XXXXXXXX'S FEES. In the event of any controversy related to,
concerning or arising out of this Agreement, or any facts based upon
or involving this Agreement or the parties hereto, the prevailing
party, whether in court, arbitration, or by way of out of court
settlement, shall be entitled to recover from the non-prevailing party
attorneys fees, court costs, and other expenses relating to such
controversy, if any.
14.NOTICES. Any notices, consent, requests, approvals, demands, or other
communications required or permitted by this Agreement or by law shall
be in writing and shall be deemed sufficient if deposited in the
United States mail, certified or registered postage prepaid, addressed
to the parties at the address stated below or at such other address as
may hereafter be designated in writing by any party to the other
party:
If to INFOLINK: Infolink Communications, Ltd.
ATTN: Xxxxxxx Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxx Xxxxxx, Attorney
000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
If to TCI: CHILDREN'S INTERNET, INC.
ATTN: Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
15.NON DISCRIMINATION. No discrimination shall be made of persons under
this Agreement because of race, color, national origin, age, ancestry,
religion, or sex of such person.
16.ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and correctly sets forth the rights, duties, and
obligations of all of the parties as of its date. Any prior
agreement, promises, negotiations or representations not expressly set
forth in this Agreement are of no force and effect.
17.AMENDMENTS. No provision of this Agreement shall be modified, waived,
or otherwise amended except by written instrument signed by each of
the parties hereto.
18.ASSIGNMENT. The rights, duties and obligations of either party
hereunder shall not be assigned without the express written consent of
other party, which consent shall not be unreasonably withheld.
19.GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
20.AUTHORIZATION. By execution below, each of the parties hereto
represent and warrant that it is duly authorized by its Board of
Directors or pursuant to any applicable provisions of its charter, to
enter into and fully perform the terms and provisions of this
Agreement.
INFOLINK TCI
INFOLINK COMMUNCATIONS, LTD. CHILDREN'S INTERNET, INC.
An Illinois Corporation A Nevada Corporation
By: /S/ Xxxxxxx Xxxxxxx By: /S/ Xxxxxx Xxxxxxxx
------------------------ -------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: President Title: President
Dated: August 14, 2003 Dated: August 14, 2003
Confidential & Proprietary INFOLINK ___ TCI ___
EXHIBIT "A"
LIENS
NONE
Confidential & Proprietary INFOLINK ___ TCI ___