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EXHIBIT 10.8
TECHNOLOGY LICENSE AGREEMENT
THIS TECHNOLOGY LICENSE AGREEMENT (this "Agreement") is entered into as
of the 19th day of April, 1999, by and between 1ST NET TECHNOLOGIES, INC., a
Colorado corporation (referred to as "1st NET" or the "Licensor"), and TUMMY
BUSTERS, INC., a Nevada corporation (referred to as "Tummy Busters" or the
"Licensee").
RECITALS
A. Licensor is the developer and owner of certain rights, in and to the
"Crayon Crawler" web browser and community software program ("Crayon Crawler").
B. Licensee desires to acquire an exclusive license to use the Crayon
Crawler web browser. Licensor is willing to grant such license, all on the terms
and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants and conditions contained herein, the parties agree as follows:
1. DEFINITIONS. Unless a contrary interpretation is required by the
specific context, the following terms shall have the following definitions,
whether used in the singular, plural, possessive or other such form:
1.1 "PRODUCT" shall mean the product of Licensee which, in the
absence of this Agreement, would infringe Licensor's rights in the trademarks
and/or the Technology.
1.2 "TECHNOLOGY" shall mean any and all confidential information,
inventions, know-how, data, trade secrets, whether or not patentable, including
any
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trademarks, tradenames, copyrights and other intellectual property rights based
on the Products and/or related to the Crayon Crawler web browser.
1.3 "MODIFICATIONS, IMPROVEMENTS AND ENHANCEMENTS" shall mean any
technology in addition to or substitution for existing technology and which
requires the use of existing technology to operate.
2. GRANT OF EXCLUSIVE LICENSE.
2.1 LICENSE. Licensor hereby grants to Licensee, and Licensee
hereby accepts from Licensor, upon the terms and conditions contained in this
Agreement, a worldwide exclusive license to use, market and sell the Crayon
Crawler web browser in consideration of the payment of $400,000 (the "License").
The License shall restrict the right of Licensor to compete with Licensee and
the right of Licensor to grant licenses to third parties.
2.1.1 In further consideration for the grant of the
License, 1st Net shall receive from CTG five percent (5%) of gross sales of the
Product, but not less than $25,000 per month (the "Monthly Minimum Fee") during
the term of this Agreement. 1st Net, at its sole option, may accept this royalty
from CTG in the form of CTG Common Stock at:
(i) the 30-day average trading price for the Common
Stock during the calendar month for which the
Monthly Minimum Fee is owing; or
(ii) the latest offering price per share.
2.2 MODIFICATIONS, IMPROVEMENTS AND ENHANCEMENTS BY LICENSOR. The
License shall extend to any Modifications, Improvements or Enhancements in the
Technology hereafter developed by Licensor. Licensor will supply all such
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Modifications, Improvements and Enhancements to Licensee as soon as practicable
following their development; however, Licensor shall have no obligation to make
any Modifications, Improvements and Enhancements. Licensor shall notify Licensee
of the date upon which each Modification, Improvement or Enhancement shall be
deemed to be a part of the License under this Agreement.
2.3 MODIFICATIONS, IMPROVEMENTS AND ENHANCEMENTS BY LICENSEE.
Licensee shall have the right to modify, improve and enhance the Technology from
time to time. Licensee shall, within thirty (30) days, forward to Licensor a
description of any such Modification, Improvement or Enhancement. Upon
termination of this Agreement, Licensee shall not have any ownership with
respect to rights to any such Modification, Improvement or Enhancement. Licensee
agrees to defend Licensor in any claim, lawsuit or other proceeding that may
hereafter be made or filed which is based on, related to or connected with any
Modification, Improvement or Enhancement affected by Licensee pursuant to this
Section 2.3.
2.4 RIGHTS EXCLUDED. The License shall not include the rights to
manufacture, reproduce, publish, transfer, market, distribute, sublicense,
assign or sell the Technology in any transfer medium whatsoever except as
expressly provided in this Agreement.
2.5 TITLE. Licensee hereby acknowledges that Licensor retains
title to the Technology and shall have and retain title to any Modifications,
Improvements and Enhancements made to the Technology by any party and that
Licensee acquires only a License to specific rights as set forth in this
Agreement. Licensor shall grant to Licensee a license with respect to any
Modifications, Improvements or Enhancements developed by Licensor in accordance
with Section 2.2 of this Agreement.
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3. TRADEMARKS, TRADENAMES AND COPYRIGHTS.
3.1 SOLE PROPERTY OF LICENSOR. In addition to Technology, all
trademarks, tradenames and copyrights granted or applied for in connection with
the Technology are, will and shall remain the sole property of Licensor. Any
direct or indirect use, publication or reference to Licensor's name, trademarks,
or tradenames, except as specified in this Agreement or as expressly authorized
by Licensor in writing, is prohibited.
3.2 USE OF LICENSOR'S TRADEMARKS, TRADENAMES AND COPYRIGHTS.
Licensee may use Licensor's trademarks, tradenames and copyright on products as
follows:
Crayon Crawler
Web Safe, Kid Approved
3.3 EFFECT OF TERMINATION OR EXPIRATION. Upon termination or
expiration of this Agreement, the right of Licensee to use Licensor's tradenames
and trademarks shall cease immediately.
4. WARRANTIES AND INDEMNIFICATION.
4.1 Licensor represents and warrants that it is the owner of the
entire right, title and interest in and to the trademarks above and the
Technology, and that it has the full right, power and capacity to enter into
this Agreement and to lawfully grant the exclusive rights granted to Licensee
hereby. Licensor further warrants that, except as otherwise provided in this
Agreement, it will not take any action, or fail to take any action during the
term of this Agreement, that would negate this Agreement or cause a loss to
Licensee of the License granted hereunder.
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4.2 Licensor represents and warrants that it is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Colorado; has the power and authority to enter into this Agreement; all
corporate and other action required to be taken on behalf of Licensor to
authorize the execution and delivery of this Agreement, and to carry out the
transactions contemplated herein, have been duly and properly taken.
4.3 Licensee shall defend at its own cost any infringement suit
that may be brought against Licensee or Licensor on account of the development,
manufacture, production, use, or sale of the Technology or of any Product sold
by Licensee, and shall indemnify and save Licensor harmless against any such
patent or similar infringement suits, and any claims, losses, damages,
liabilities or expenses, including reasonable attorneys' fees and costs, which
may be incurred by Licensor therein or in settlement thereof. Any and all
settlements must be approved by Licensor before execution by Licensee.
4.4 LICENSOR DOES NOT WARRANT THE ADEQUACY OF THE TECHNOLOGY AND
DOES NOT WARRANT, EXPRESSLY OR IMPLIEDLY, THE MERCHANTABILITY, SUITABILITY OR
FITNESS THEREOF FOR ANY PURPOSE WHATSOEVER. EXCEPT AS OTHERWISE SET FORTH IN
THIS SECTION 4, LICENSOR DISCLAIMS ALL OTHER WARRANTIES OF WHATEVER NATURE,
EXPRESS OR IMPLIED.
5. DOCUMENTATION AND CONFIDENTIAL INFORMATION.
5.1 PROTECTION OF CONFIDENTIAL PROPRIETARY INFORMATION. Licensee
shall protect all documents, information and data supplied by Licensor and
designated as confidential and proprietary to Licensor. Each party shall
promptly report to the other
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any unauthorized disclosures or misuse of such information and data of which
such party becomes aware or has reasonable cause to believe has occurred.
Licensee agrees to immediately notify Licensor of any Modification, Improvement
or Enhancement to the Licensed Software developed by Licensee and to provide
details thereof to Licensor.
5.2 CONFIDENTIALITY AGREEMENTS. Concurrent with the execution of
this Agreement, Licensee agrees to execute Licensor's standard form
Confidentiality Agreement of which is attached hereto as Exhibit "A". Licensee
also agrees to require its employees and representatives with access to the
Technology and other documents or materials designated by Licensor as
confidential and proprietary to execute the standard form Confidentiality
Agreement and to execute any other instruments or documents Licensor deems
necessary or advisable in order to protect its trade secrets and any other
confidential and proprietary information.
5.3 EFFECT OF TERMINATION OR EXPIRATION. Upon termination or
expiration of this Agreement, Licensee shall cease all use of and, at its own
expense, immediately return to Licensor, at Licensor's principal offices or such
other location as Licensor may designate, all copies of any diskettes, source
codes, tapes, recordings, manuals, books, or other electronic or written
materials relating to the Technology or any tradenames, trademarks or logo types
relating to Licensor regardless whether prepared by Licensor or Licensee,
including all copies of materials containing information or data supplied by
Licensor and designated by Licensor as confidential and proprietary.
6. TERM AND TERMINATION.
6.1 SINGLE TERM. This Agreement shall be for a single term
commencing on the date hereof and expiring three (3) years from the date hereof,
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unless sooner terminated as provided for herein. Licensor and Licensee shall
have no obligation, nor has either made any promise, whether express or implied,
to renew or extend this Agreement beyond the term thereof. Licensor and Licensee
shall each have the absolute right, in their sole discretion, to determine
whether to renew or extend this Agreement, regardless of whether and to what
degree the other party has performed its obligations hereunder.
6.2 TERMINATION. Either party may terminate this Agreement
effective immediately on delivery of written notice of the same to the other
party for any of the following:
6.2.1 Mutual agreement of the parties hereto;
6.2.2 Commission of a material breach of the Agreement; or
6.2.3 The filing or submission of any petition in
bankruptcy by or against a party to this Agreement or any of its subsidiaries
dealing in the Technology, or upon occurrence of any other act of insolvency by
a party to this Agreement or such subsidiaries; provided, in the event that a
party declines to exercise its termination rights upon the bankruptcy or
insolvency of the other, this Agreement shall remain in full force and effect
and binding upon the bankruptcy or insolvent party.
6.3 CONTINUING OBLIGATIONS OF LICENSEE. Notwithstanding
termination of this Agreement, whether by expiration of its term or otherwise,
Licensee shall remain obligated to do the following:
6.3.1 To indemnify and defend Licensor as provided in this
Agreement; and
6.3.2 To maintain the confidentiality of any and all of
Licensor's data or information designated as confidential and proprietary.
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6.4 NO CONTINUATION OF LICENSOR'S OBLIGATIONS. Upon termination
of this Agreement and without prejudice to any claims which Licensee may have
against Licensor immediately prior to such termination or arising therefrom,
Licensor's obligations under the Agreement shall cease immediately.
7. MISCELLANEOUS PROVISIONS.
7.1 ASSIGNMENTS. Neither this Agreement nor any rights or
obligations of Licensee hereunder shall be assignable by Licensee in whole or in
part, by operation of law or otherwise, without the prior written consent of
Licensor, which may be granted or withheld in Licensor's sole discretion.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the successors and assigns of the respective parties hereto.
7.2 HEADINGS. The headings of the articles, paragraphs and
clauses used in this Agreement are included for convenience only and are not to
be used in interpreting or construing this Agreement.
7.3 GOVERNING LAW. This Agreement and all disputes concerning its
execution, formation, interpretation, performance, breach, termination,
validity, or enforceability shall be governed by the laws of the State of
California as applicable to contracts made between residents of California,
regardless of the laws which may otherwise be applicable under principles of
conflicts of laws.
7.4 WAIVER. No claim or right arising out of a breach of this
Agreement can be discharged in whole or in part by a waiver of the claim or
right unless it is in writing and signed by the aggrieved party.
7.5 NOTICES. All notices and other communications required herein
shall be in writing and shall be either delivered personally or be dispatched by
facsimile
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or sent by certified mail, postage prepaid, return receipt requested. Items
delivered personally shall be deemed delivered one day after dispatch; items
sent by certified or registered mail shall be deemed delivered three (3) days
after mailing. The addresses of the parties for purposes of this provision are:
LICENSOR: Attention: Chief Executive Officer
1st Net Technologies, Inc.
00000 X. Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
WITH A
COPY TO: R. Xxxxx Xxxxxxx
The Xxxxxxx Group, LLP
00000 X. Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
LICENSEE: Xxxxxxxx X. Xxxxxxx
Tummy Buster, Inc.
00000 X. Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Either party may change its address by giving notice thereof as required herein.
7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto, and shall supersede the terms and
conditions of any and all prior agreements, understanding, promises,
representations and writings made by either party to the other concerning the
subject matter and the terms and conditions hereof. No subsequent modification,
amendment, or extension of this Agreement or any of the terms and conditions
hereof shall be of any force or effect unless it is in writing and signed by a
duly authorized officer or representative of each of the parties.
7.9 SEVERABILITY. The unenforceability, invalidity or illegality
of any provisions of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
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7.10 COUNTERPARTS. This Agreement may be executed in counterparts
with the same force and effect as if all signatures appeared on the same
document.
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
executed by its duly authorized officer as of the day and year first written
above.
1ST NET TECHNOLOGIES, INC.
a Colorado corporation
/s/ XXXXXXX X. WRITER, JR.
-----------------------------------
Xxxxxxx X. Writer, Jr.,
Chief Executive Officer
/s/ XXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxx X. Xxxxx
President
TUMMY BUSTERS, INC.,
a Nevada corporation
/s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxxx X. Xxxxxxx,
Chief Financial Officer
/s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx
Secretary
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EXHIBIT "A"
CONFIDENTIALITY AGREEMENT
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CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into as of
the 19th day of April, 1999, by and between 1ST NET TECHNOLOGIES, INC., a
Colorado corporation ("1st NET") and TUMMY BUSTER, INC., a Nevada corporation
("Tummy Buster").
RECITALS
A. PURPOSE. In the course of the relationship between 1`st NET and TUMMY
BUSTER arising out of that certain Technology License Agreement entered into by
the parties on April 19, 1999, it is essential for the parties to have a
completely open exchange of information which requires that the parties execute
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. COVENANT. The parties to this Agreement shall treat any information
(irrespective of its source or form of communication) that may be furnished by
or on behalf of the parties, whether furnished before, on or after the date of
this Agreement, confidentially and in strict accordance with the provisions
hereof.
2. CONFIDENTIAL MATERIAL. The term Confidential Material shall include
any notes, analyses, compilations, studies or other documents or records
prepared by the parties or others, which is generated from information supplied
by the the parties or its representatives. The term Confidential Material shall
not include information which either party can prove by documentary evidence:
(i) becomes generally available to the public other than as a result of a
disclosure in violation of this Agreement; (ii) was available to either party,
as the case may be, on a non-confidential basis from a source other than the
parties (provided such information is not subject to another confidentiality
agreement or other obligation of secrecy to TUMMY BUSTER, 1st NET or another
party); or (iii) becomes available to either party on a non-confidential basis
from sources other than the parties, provided that such source is not prohibited
from transmitting the information to the parties by a contractual, legal or
fiduciary obligation.
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3. WRITTEN CONSENT. Without the prior written consent of 1st NET, TUMMY
BUSTER will not disclose and will direct its representatives not to disclose, to
any person other than its representatives, the fact that the Confidential
Material has been made available to TUMMY BUSTER. The term "person" as used in
this Agreement shall be broadly interpreted to include, without limitation, any
corporation, company, partnership or individual.
4. COMPELLED DISCLOSURE.If TUMMY BUSTER or any of its representatives
are requested or required (orally or in writing, by interrogatory, subpoena,
civil investigatory demand or any similar process relating to any legal
proceeding, investigation, hearing or otherwise) to disclose any Confidential
Material, you will provide 1st NET with prompt notice in advance of such
disclosure so that 1st NET may seek a protective order or other appropriate
remedy and/or waive compliance with this Agreement and TUMMY BUSTER agrees to
cooperate in pursuing any such course of action. In the event that such
protective order or other remedy is not obtained, TUMMY BUSTER will furnish only
such information as TUMMY BUSTER is advised to be legally required and will
exercise its best efforts to obtain assurance that confidential treatment will
be accorded to any information which is compelled to be disclosed.
5. SECURITIES CONCERNS. TUMMY BUSTER acknowledges that it is aware, and
agrees that it will advise its representatives who are informed as to the
matters which are the subject of this Agreement, that the United States
securities laws prohibit any person who has received from any issuer-related
material, non-public information from purchasing or selling securities of the
issuer or from communication of such information to any other person under
circumstances in which it is reasonably foreseeable that person is likely to
purchase or sell such securities while in possession of material non-public
information.
6. LIQUIDATED DAMAGES. TUMMY BUSTER acknowledges and agrees that 1st NET
would not have an adequate remedy at law and would be irreparably harmed in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the 1st NET shall be entitled to injunctive relief to
prevent breaches of this Agreement and to specifically enforce its terms and
provisions hereof, in addition to any other remedy at law or in equity.
7. NO WAIVER. No failure to or delay in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, and no single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise of any right, power or privilege. The losing party agrees to
pay all costs and expenses, including reasonable counsel fees, incurred by the
prevailing party in case any such action for breach of this Agreement is brought
by them.
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8. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and to be performed within such State without reference to principles of
conflicts of law.
9. JURISDICTION.TUMMY BUSTER consents to personal jurisdiction and
venue in any action brought in connection with any matter arising under this
Agreement.
10. TERM. This Agreement shall remain in effect for a period of three
years from the date hereof and may be modified or waived only by a separate
writing by 1st NET that expressly so modifies or waives this Agreement.
The individual or individuals executing this Agreement are duly
authorized and empowered to fully bind the parties to the terms and conditions
of this Agreement.
1ST NET TECHNOLOGIES, INC.,
a Colorado corporation
/s/ XXXXXXX X. WRITER, JR.
------------------------------------
Xxxxxxx X. Writer, Jr.
Chief Executive Officer
TUMMY BUSTER, INC., a
Nevada corporation
/s/ XXXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxxx X. Xxxxxxx
Chief Financial Officer