EXCLUSIVE LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT (the "Agreement"), dated as of the 12
day of October, 2000 (the "Effective Date") is made by and Techlabs, Inc.
("Techlabs"), a Florida corporation, and its wholly-owned subsidiaries
StartingPoint.com, Inc. ("Starting Point"), a Florida corporation, and
Interplanner.com, Inc. ("Interplanner"), a Florida corporation, all with offices
at 3435 Galt Ocean Drive, Fort Lauderdale, Florida 33308, and Outcome Mail, N.V.
("Outcome Mail"), a Netherlands Antilles corporation, with offices at Arahilla
Top, Unit 1, Willemstad, Curacao, Netherlands Antilles. Techlabs, Starting
Point, Interplanner and Outcome Mail may be referred to individually as a
"Party" and collectively as the "Parties."
RECITALS
WHEREAS, Starting Point owns and operates a web site,
www.mystartingpoint.com (the "Starting Point Site"), which is a web portal
offering a variety of web searching tools.
WHEREAS, Interplanner owns and operates a web site,
www.interplanner.com (the "Interplanner Site"), which is a free online calendar
and personal information management (PIM) service that offers a comprehensive
set of features, including a personal calendar, group calendars, contact lists,
appointment entry and tracking, and task lists, as well as a variety of content.
WHEREAS, Outcome Mail is a permission based Marketing Company.
WHEREAS, Outcome Mail desires to obtain an exclusive, worldwide
licenses to host and operate the Starting Point Site and the Interplanner Site
(collectively, the "Web Sites").
NOW THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The above recitals are true, correct and are
incorporated herein.
2, Granting of Exclusive Licenses.
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a. Subject to Outcome Mail's compliance with the terms of this
Agreement, Starting Point grants to Outcome Mail an exclusive,
non-transferrable, worldwide license (the "Starting Point License") to the
Starting Point Site and its source codes and electronic database, including the
unfettered use of any trademarks, trade names, copyrights or other intellectual
property related thereto, through or by way of any media known now or in the
future, in connection with the marketing, merchandising or promotion of the
Starting Point Site.
b. Subject to Outcome Mail's compliance with the terms of this
Agreement, Interplanner grants to Outcome Mail an exclusive, non-transferrable,
worldwide license (the "Interplanner License") to the Interplanner Site and its
source codes and electronic database, including the unfettered use of any
trademarks, trade names, copyrights or other intellectual property related
thereto, through or by way of any media known now or in the future, in
connection with the marketing, merchandising or promotion of the Interplanner
Site.
c. Outcome Mail's licenses grant hereunder is further conditioned upon
Outcome Mail's compliance with the following:
(i) Outcome Mail shall not and shall not authorize any third
party to decompile or disassemble either the Starting Point Site or the
Interplanner Site (collective, the "Web Sites");
(ii)Outcome Mail shall not and shall not authorize any third
party to authorize further licensing or redistribution of the Web Sites; and
(iii) Outcome Mail shall maintain and not alter or remove any
copyright, trademark, and other protective notices contained on the Web Sites,
including the end user license agreement which is included in the setup
installation of the Interplanner Site.
3. Operations of the Web Sites. During the term of this Agreement,
Outcome Mail shall host, operate, promote and maintain at its sole cost and
expense the Web Sites, including but not limited to, the costs of hardware,
personnel, Internet access, promotional costs, facilities, customer service
obligations, obligations to maintain and update the software and hardware used
in the Web Sites, and any and all other costs and expenses related to hosting,
operating, promoting and maintaining the Web Sites. Outcome Mail will use its
best efforts to ensure that Web Sites will be accessible on the Internet on a
365/24/7 basis. Outcome Mail will not (i) alter the content of the Web Sites, or
(ii) post any material on the Web Sites which is not the subject of this license
or which may in anyway infringe upon the rights of third parties who are not
parties to this Agreement, without the prior written consent of Techlabs.
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4. Compensation. As full and complete compensation for the rights
granted to Outcome pursuant to Section 2 hereof, Outcome shall pay Techlabs a
royalty equal to 25% of net operating revenues of the Web Sites. For the
purposes of this Section, "net operating revenues" shall mean the total revenues
actually received by Outcome Mail from the operation of the Web Sites, less the
net operating costs. Such royalty payments shall be due and payable on the 15th
day of each month following the month in which Outcome Mail receives such
payment, and shall be accompanied by a schedule showing for the prior month the
gross revenues received by Outcome Mail which resulted from Web Sites. Techlabs
shall be permitted to inspect the books and records of Outcome Mail from time to
time in its sole discretion solely as they relate to the subject matter of this
Agreement and the obligations of the parties hereto as set forth herein. Such
inspection shall be at Techlabs' expense and shall be conducted at the principal
executive offices of Outcome Mail during regular business hours upon five (5)
days prior notice. If as a result of such inspection it is determined that
Outcome Mail shall owe Techlabs additional compensation, such amounts shall be
remitted by Outcome Mail to Techlabs within five (5) business days of the date
on which Techlabs supplies Outcome Mail with a schedule detailing such
additional compensation.
5. Intellectual Property. The Web Sites, including the source codes and
electronic databases, are protected by copyright and other intellectual property
laws, and all intellectual property rights in the Web Sites shall remain the
sole and exclusive property of Starting Point and Interplanner, as applicable.
The granting of the licenses hereunder are further conditioned upon Outcome
Mail's" compliance with the following: (i) Outcome Mail shall not and shall not
authorize any third party to reverse engineer, decompile or disassemble the Web
Sites; (ii) Outcome Mail shall not and shall not authorize any third party to
authorize further licensing or redistribution of the Web Sites; (iii) Outcome
Mail shall maintain and not alter or remove any copyright, trademark, and other
protective notices contained on the Web Sites; (iv) Outcome Mail shall not and
shall not authorize any third party to rent, lease, sell, transfer, or further
sublicense the Web Sites; and (v) any improvements or enhancements made to the
sites/source codes will continue to be the sole and exclusive property of
Techlabs.
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6. Non-Disclosure of Confidential Information.
a. Outcome Mail acknowledges that during the Term of this Agreement, it
will have access to confidential information and trade secrets of Techlabs,
Starting Point and Interplanner, including but not limited to, plans regarding
Techlabs' structure, financing, personnel, acquisitions, source codes,
electronic databases, technical information or methods of doing business and
other "know how" or business information which is not in the public domain,
which said information Outcome Mail acknowledges to be a valuable trade assets
of said corporations, except for common general practices in the industry or
knowledge in the public domain. Outcome Mail shall not at any time during the
Term of this Agreement, or at any time after termination of this Agreement for
any reason, directly or indirectly, use for itself or others, or divulge to
others any said trade secrets or confidential information or data of either
Techlabs, Starting Point or Interplanner obtained as a result of this Agreement.
Outcome Mail acknowledges and agrees that Techlabs', Starting Point's and
Interplanner's remedies at law for a breach or threatened breach of any of the
provisions of this Section 6 would be inadequate and the breach shall be per se
deemed as causing irreparable harm to said corporations. In recognition of this
fact, in the event of a breach or threatened breach by Outcome Mail of any of
the provisions of this Section 6, Outcome Mail agrees that, in addition to any
remedy at law available to said corporations, including, but not limited to
monetary damages, Techlabs, without posting any bond, shall be entitled to
obtain, and Outcome Mail agrees not to oppose said corporations request for
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available to said corporations.
b. Upon termination for any reason or the natural expiration of the
Term, Outcome Mail shall turn over immediately to Techlabs any property
belonging to Techlabs, Starting Point or Interplanner, including but not limited
to, customers' lists, financial data or any other writings, records or property
in the possession or control of Outcome Mail which relates to the business of
the Web Sites, all of which writings and records are and will continue to be the
sole and exclusive property of Techlabs.
7. Term and Termination.
a. Unless terminated pursuant to Sections 7(b) and 7(c) of this
Agreement , the term of the Licenses granted hereby shall commence as of the
Effective Date and shall continue for 1 year thereafter (the "Term").
Notwithstanding this Section 7(a), this Agreement shall be automatically renewed
upon the consent of the parties hereto for successive 1 year periods and all
provisions hereof shall remain in full force and effect. For the purpose of this
Agreement, the Term shall include all extensions and renewals.
b. Without prejudice and in addition to any other rights, Techlabs
shall have the right to terminate this Agreement upon written notice to Outcome
Mail, at any time upon the occurrence of the following:
i. Outcome Mail's breach of any material provision,
representation, warranty or covenant of this Agreement, each of which is
considered to be the essence of this Agreement; or
ii. If Outcome Mail fails to make any payments due pursuant to
Section 4,unless such breach is cured within a ten (10) day period; or
iii. Outcome Mail shall (A) become insolvent, (B) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
trustee or similar official of or for itself or of or for all or a substantial
part of its property, (C) make an assignment for the benefit of its creditors,
(D) commence a voluntary case under the Federal Bankruptcy Code, as now or
hereafter in effect (the "Code"), (v) file a petition seeking to take advantage
of any other bankruptcy, insolvency, moratorium, reorganization or other similar
law of any jurisdiction ("Other Laws"), (D) acquiesce as to, or fail to
controvert in a timely or appropriate manner, an involuntary case filed against
Outcome Mail under the Code, or (E) take any corporate action in furtherance of
any of the foregoing; or
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iv. A proceeding or involuntary case shall be commenced,
without the application or consent of Outcome Mail in any court of competent
jurisdiction (A) under the Code, (B) seeking liquidation, reorganization,
dissolution, winding up or composition or readjustment of its debts under any
Other Laws, or (C) seeking the appointment of a trustee, receiver or similar
official for it or for all or any substantial part of its assets, and any such
proceeding or case shall continue undismissed, or unstayed and in effect, for a
period of 90 days; or
v. A final judgment for the payment of money shall be rendered
by a court of competent jurisdiction against Outcome Mail, and Outcome Mail
shall not discharge the same, or procure a stay of execution thereof within 30
days from the date of entry thereof and within such 30 day period or such longer
period during which execution of such judgment shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal, and
such judgment, together with all other judgments against Outcome Mail (including
all subsidiaries), shall exceed in the aggregate $20,000 in excess of any
insurance as to the subject matter of such judgments, as to which coverage has
not been declined or the underlying claim rejected by the applicable insurer; or
vi. The liquidation or dissolution of Outcome Mail or any vote
in favor thereof by the board of directors and stockholders of Outcome Mail; or
vii. Outcome Mail sells all or substantially all of its assets
or merges or is consolidated with another corporation in which Outcome Mail is
not the surviving corporation.
c. This Agreement may be cancelled upon thirty (30) days notice with
the consent of all parties hereto.
d. The licenses granted under this Agreement shall terminate thirty
(30) days after mailing of such written notice unless such breach is cured
within such time period. Immediately upon the expiration or termination of the
Agreement, Outcome Mail shall have no further rights to use either the Starting
Point License or the Interplanner License.
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8. Representations and Warranties.
a. Outcome Mail is a corporation duly organized, validity existing and
in good standing under the laws of the jurisdiction in which it is incorporated,
and has the requisite corporate power and authority to own its properties and to
carry on its business as now being conducted. Outcome Mail has all requisite
power, authority, and capacity to enter into this Agreement and to perform the
transactions and obligations to be performed by it hereunder. No consent,
authorization, approval, license, permit or order of, or filing with, any person
or governmental authority is required in connection with the execution or the
transactions and obligations to be performed by it hereunder. This Agreement has
been duly executed and delivered by Outcome Mail and constitutes a valid and
legally binding obligation of Outcome Mail, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws.
b. Each of Techlabs, Starting Point and Interplanner are corporations
duly organized, validity existing and in good standing under the laws of their
respective jurisdictions in which they are incorporated, and have the requisite
corporate power and authority to own their properties and to carry on their
business as now being conducted. Each of Techlabs, Starting Point and
Interplanner have all requisite power, authority, and capacity to enter into
this Agreement and to perform the transactions and obligations to be performed
by it hereunder. No consent, authorization, approval, license, permit or order
of, or filing with, any person or governmental authority is required in
connection with the execution or the transactions and obligations to be
performed by any of them hereunder. This Agreement has been duly executed and
delivered by each of Techlabs, Starting Point and Interplanner and constitutes a
valid and legally binding obligations of each of them, enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws.
9. Suits for Third-Party Infringements. In the event that Outcome Mail
learns of any infringement or threatened infringement of any of the either the
Starting Point License or the Interplanner License, or any passing off or that
any third party alleges or claims that any of the license rights granted
hereunder are liable to cause deception or confusion to the public, or is liable
to dilute or infringe any of Outcome Mail's rights therein, Outcome Mail shall
forthwith notify Techlabs or its authorized representatives giving particulars
thereof and Outcome Mail shall provide necessary information and assistance to
Techlabs and/or its authorized representatives. Techlabs shall defend any and
all such suits or actions and pay all expenses of defending such suits or
actions, including attorney"s fees.
10. Claims Against Outcome Mail. If a claim is presented against
Outcome Mail alleging that either the Starting Point License or the Interplanner
License are an infringement of the rights of third parties, Techlabs, on behalf
of Outcome Mail, shall negotiate, compromise, or settle such claim, or defend
the institution of any action thereunder. All expenses of defense in such
action, including compromise or settlement of the claim or action and attorney"s
fees, shall be borne by Techlabs.
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11. Indemnification. Each party agrees to indemnify, defend and hold
harmless the other party and its directors, officers, employees, shareholders,
agents and affiliates, and each of their successors and assigns, from and
against any losses, liabilities, damages, deficiencies, costs or expenses
(including interest, penalties and reasonable attorneys' fees and disbursements)
("Loss") based upon, arising out of, or otherwise due to (i) any inaccuracy in
or any breach of any material representation, warranty, covenant or agreement of
such party contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement, or (ii) facts or circumstances existing on
or prior to the date hereof which give rise to claims by any third parties
against the licenses. Promptly after receipt by the indemnifying party of notice
of any demand, claim or circumstances which, with the lapse or time, would give
rise to a claim or the commencement (or threatened commencement) of any action,
proceeding or investigation (an "Asserted Liability") that may result in a Loss,
the indemnifying party shall give notice thereof (the "Claims Notice") to the
indemnified party. The Claims Notice shall described the Asserted Liability in
reasonable detail, and shall indicate the amount (if stated) of the Loss that
has been or may be suffered by the indemnified party. The indemnifying party may
elect to compromise or defend, at their own expense and by their own counsel,
any Asserted Liability. If the indemnifying party elects to compromise or defend
such Asserted Liability, they shall, within thirty (30) days (or sooner, if the
nature of the Asserted Liability so requires), notify the indemnified party of
their intent to do so, and the indemnified party shall cooperate, at the expense
of the indemnifying party, in the compromise of, or defense against, such
Asserted Liability. The indemnified party may elect to participate, at its or
their own expense, in the defense of such Asserted Liability. If the
indemnifying party elects not to compromise or defend the Asserted Liability,
fails to notify the indemnified party of their election as herein provided,
contest their obligations to indemnify under this Agreement, or at any time
fails to pursue in good faith the resolution of any Asserted Liability, in the
sole opinion of the indemnified party, then the indemnified party may, upon
thirty (30) days' notice to the indemnifying party, pay, compromise or defend
any such Asserted Liability. If the indemnified party chooses to defend any
claim, the indemnifying party shall make available to the indemnified party any
books, records or other documents or personnel within its control that are
necessary or appropriate for such defense.
12. Force Majeure. If a party is prevented from performing any of its
obligations set forth in this Agreement by reason of an act of God, strike,
labor dispute, injunctions, judgments, adverse claims, fire, flood, delay in
transportation, public disaster or any other cause or reason beyond the control
of Techlabs or Outcome Mail, as the case may be, such condition shall be deemed
a valid excuse for failure on its part to perform or for delay in the
performance of such obligations, and in the event of a delay, the Term of this
Agreement shall be deemed extended for a period co-extensive with the delay
caused by such condition.
13. No Partnership or Joint Venture. This Agreement does not constitute
and shall not be construed as constituting a partnership or joint venture
between Techlabs or Starting Point or Interplanner and Outcome Mail. A party
shall have no right to obligate or bind any other party in any manner whatsoever
and nothing herein contained shall give or is intended to give any rights of any
kind to any third party.
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14. Remedies. All specific remedies provided for in this Agreement
shall be cumulative and shall not be exclusive of one another or any other
remedies available in law or equity. The failure of a party to insist upon the
strict performance of any of the covenants or terms hereof to be performed by
any other party shall not be construed as a waiver of such covenants or terms.
If any portion of this Agreement shall be ruled as invalid or unenforceable, the
remainder of the Agreement shall survive and be enforced as if such invalid
portion was not originally a part hereof.
15. Assignment. This Agreement is binding upon and shall inure to
the benefit of the parties and their respective representative and permitted
successors. This Agreement may not be assigned by Outcome Mail, but may be
assigned by Techlabs on behalf of itself and/or its subsidiaries.
16. Waiver and Modification. No waiver or modification of any of the
terms of this Agreement shall be valid unless in writing and signed by the
parties. No waiver by one party of a breach hereof or a default hereunder shall
be deemed a waiver by any other party of a subsequent breach or default of like
or similar nature. No delay by one party in exercising its rights hereunder
shall be deemed a waiver of such rights.
17. Notices. Whenever notice is required to be given under this
Agreement, it shall be deemed to be good and sufficient notice if in writing,
signed by an officer or an authorized agent of the party serving such notice and
sent by registered or certified mail, postage prepaid, return receipt requested,
to any other party at the address stated above, unless notification of a change
of address has been given in writing pursuant to this Section 17. Notice shall
be deemed given five (5) business days after mailing.
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18. Venue and Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
and such legal action results in a final judgment in favor of such party
("Prevailing Party"), then the party or parties against whom said final judgment
is obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred, including, but not limited to, all attorney"s's
fees, court costs and other expenses incurred throughout all negotiations,
trials or appeals undertaken in order to enforce the Prevailing Party's rights
hereunder. Any suit, action or proceeding with respect to this Agreement shall
be brought in the state or federal courts located in Broward County in the State
of Florida. The parties hereto hereby accept the exclusive jurisdiction and
venue of those courts for the purpose of any such suit, action or proceeding.
The parties hereto hereby irrevocably waive, to the fullest extent permitted by
law, any objection that any of them may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any judgment entered by any court in respect thereof brought in
Broward County, Florida, and hereby further irrevocably waive any claim that any
suit, action or proceeding brought in Broward County, Florida, has been brought
in an inconvenient forum.
19. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes and replaces any prior agreements, if any, between the parties. There
are no representations, warranties, promises, covenants or understandings other
than those contained herein.
20. Headings. Any paragraph or section heading used in this
Agreement are for reference purposes only, are not a substantive part of this
Agreement and are not to be considered in its interpretation or construction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
STARTINGPOINT.COM, INC.,
a Florida corporation
By:
----------------------------------------------
Thomas J. Taule,
President
INTERPLANNER.COM, INC.
a Florida corporation
By:
----------------------------------------------
Thomas J. Taule,
President
TECHLABS, INC.,
a Florida corporation
\By:
---------------------------------------------
Thomas J. Taule,
President
OUTCOME MAIL, N.V.,
a Netherlands Antilles corporation
By:
---------------------------------------------
President
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