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EXHIBIT 10.36
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is made between REMOTE
DIAGNOSTICS, INC., a Delaware corporation, having its principal place of
business at 15233 Ventura Blvd., Suite 1208, Sherman Oaks, CA 91403
("Licensor"), and PCsupport.com, Inc., a Nevada corporation, having its
principal place of business at 3605 Gilmore Way, Suite 300, Burnaby, BC V5G 4X5
("PCsupport.com"), effective as of July 24, 2000 (the "Effective Date").
R E C I T A L S
A. PCsupport.com has developed and operates computer technology that
enables owners of personal computers to connect to and use the PC Support
Center, which specializes in providing online, proactive and user focused
technical support services ("eSupport") to personal computer users worldwide,
including the latest diagnostic and repair tools to fix PC problems quickly and
efficiently, via any form of Electronic Delivery.
B. Licensor is the owner or licensee of RID-Dialup, which is an
application server for PC diagnostic/repair/service applications over a dialup
connection, consisting of Server software and Client software. The Server
software runs on an NT server with a modem bank. The language for scripted
applications is either Visual FoxPro or VB, with RID-specific extensions.
Client software enables an individual PC to dial into the Server and launch an
automatic session (which is driven by the scripted applications on the server).
Client software is available for DOS, Win3.1, Win95/98, and NT Workstation.
C. PCsupport.com desires to design and develop, or to have third parties
design and develop, for PCsupport.com modified computer software, associated
scripts and related documentation and textual materials for (1) customizing the
Licensor's Connection Wizard to PCsupport.com's eSupport requirements and (2)
developing a Data Collection App to PCsupport.com' eSupport requirements. The
Connection Wizard is an application that incorporates the RID Dialup and will
create/fix a user's dialup networking setup, so that a user can connect to a
specific ISP. The Data Collection App is an application that will collect
certain data on a user's PC and send it back to the server.
D. Licensor desires to contract with PCsupport.com, and PCsupport.com
desires to contract with Licensor, for the licensing of the software for the
purposes described above.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties agree as follows:
1. OWNERSHIP: GRANT OF LICENSES BY LICENSOR: LIMITATIONS; SPECIAL
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RIGHTS.
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1.1 Ownership of the Licensor Technology. All rights, title and
interests in and to the Licensor Technology, and all parts thereof including all
copyrights, patents, trade secrets and trademarks therein, in whatever media or
form, shall be the exclusive property of Licensor. PCsupport.com shall take all
actions and execute all documents, at Licensor's expense
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and as Licensor may reasonably request, to effectuate the acknowledgment of
ownership contained herein and the vesting of complete and exclusive ownership
of the Licensor Technology in Licensor, and to secure, maintain and defend for
PCsupport.com's own benefit all rights therein, including the right to submit
any patent, copyright or trademark application or registration. From time to
time, PCsupport.com shall execute assignments effecting the intent of this
Section 1.1, if so requested by Licensor. Ownership of any Licensor Technology
may be transferred to PCsupport.com pursuant only to an agreement in writing.
Ownership of any Derivative Works is defined in the Master Services Agreement,
Work order 00724, entered into between PCsupport.com and Remote Diagnostics,
Inc. Consulting on July 24, 2000.
1.2 Protection of Licensor Technology. PCsupport.com agrees to use a
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degree of care in safeguarding Licensor's proprietary right with respect to the
Licensor Technology that is no less protective than the care used by
PCsupport.com to protect its own valuable proprietary information of substantial
importance.
1.3 Licensor Technology License. Licensor hereby grants to
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PCsupport.com a worldwide, nonexclusive, irrevocable, nontransferable and
nonsublicensable, unless provided herein, license to use and to modify the
Licensor Technology in connection with or to do any of the following:
(a) use, execute, perform and display the Server Product on the
PCsupport.com Technology through any means now known or hereafter devised, and
sublicense to ISP's the nontransferable right to do the same;
(b) publish, sublicense, market, transmit and distribute the
Client Product and copies thereof, solely in object code form, through any means
now known or hereafter devised including but not limited to Electronic Delivery,
for use by end users on the PCsupport.com Technology, and charge and retain the
charges and royalties connected therewith, and to sublicense to ISP's the
nontransferable right to do the same;
(c) copy, use, and display the Licensor Technology, and to
authorize a third party to do any of the foregoing on behalf of PCsupport.com,
for any purpose reasonably related to the modification, maintenance or support,
including making backup copies, of the Product;
(d) make modifications to the Server Product and the Client
Product, including without limitation creating or editing scripts; and
(e) copy and reproduce the Licensor Technology as reasonably
required for the purposes set forth in subparagraphs (a) through (d) above.
1.4 Registration. Licensor expressly authorizes PCsupport.com to
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secure proper registration of the copyrights of Licensor Technology on behalf of
Licensor in any country where deemed necessary in order to permit PCsupport.com
to protect the license and related rights herein granted by Licensor to the
fullest extent permitted under applicable law. Licensor shall own for its
benefit any and all such registrations. Licensor and PCsupport.com shall
reasonably agree on all registration costs for which Licensor shall reimburse
PCsupport.com.
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1.5 License Agreements. When PCsupport.com provides Licensor
Technology, including but not limited to the Product, those other parties shall
sign appropriate license agreements to protect the interests of the Parties as
embodied in this Section 1.
1.6 Ownership by PCsupport.com of PCsupport.com Technology.
PCsupport.com shall own all copyrights and proprietary rights to any design,
code or other materials it provides in connection with the Product and all
right, title and interest in and to the PCsupport.com Host Software, the
PCsupport.com SDK and PCsupport.com Application Program Interfaces, and all
Intellectual Property Rights in and to each of the foregoing shall be retained
by PCsupport.com. PCsupport.com shall own all copyrights and proprietary rights
to any design, code or other materials in the products produced pursuant to the
Master Services Agreement, Work order 00724, entered into between PCsupport.com
and Remote Diagnostics, Inc. Consulting on July 24, 2000.
1.7 Training Regarding Source Code. Licensor shall provide
training to PCsupport.com engineers during a sixty-day period (the "Training
Period") to be specified by PCsupport.com. The training shall consist of up to
10 eight (8) hour days of training to be provided on dates during the Training
Period to be mutually agreed by the parties; such agreement shall not be
unreasonably withheld. PCsupport.com shall pay to Licensor the sum of $110 per
hour for this training. Training shall be provided on-site at PCsupportcom's
facilities and there shall be no limit to the number of employees entitled to
participate in such training. Such payment shall be made within twenty (20) days
after receipt of an invoice relating to such training. The training fee shall
become non-refundable and non-recoupable upon receipt by Licensor.
1.8 Integration Assistance From Licensor. For sixty (60) days
after the Delivery Date, with reasonable notice Licensor shall provide
PCsupport.com with access to two (2) Licensor designated technical employees who
are sufficiently knowledgeable regarding the Source Code to provide integration
assistance to PCsupport.com. The Licensor designated Employees shall advise
PCsupport.com how to best integrate the Source Code with the PCsupport.com
software, but such advice shall not require creation of software code or
documentation. If PCsupport.com deems necessary, such assistance shall be on-
site at PCsupport.com facilities. PCsupport.com shall pay Licensor a technical
assistance fee of $110 per hour in consideration of such support provided by
Licensor. The technical assistance fee shall be payable to Licensor within
thirty (30) days of the presentation of an invoice related to such assistance.
This payment shall be deemed non-refundable and non-recoupable upon receipt by
Licensor.
1.9 Maintenance of Source Code. For a period of ninety (90)
days after the Delivery Date, Licensor shall provide maintenance and support for
the Source Code as originally provided to PCsupport.com, and for upgrades or new
versions, if any, created by Licensor during such go-day period. The support and
maintenance shall be provided during Licensor's regular business hours, Monday
through Friday, 8 am to 5 pm Pacific time, except Licensor holidays. In
addition, Licensor shall provide Backline maintenance and support for the Source
and Object Code, as originally provided and previous releases, and for upgrades
or new versions, if any, to assist PCsupport.com in the transition of support
obligations; such Backline maintenance obligation shall expire upon the
expiration of maintenance and support obligations assigned to PCsupport.com.
"Backline" maintenance shall mean assistance only after PCsupport.com has made
reasonable attempts to resolve an error in the Source Code or Object Code. In
consideration of the maintenance and support provided, PCsupport.com shall pay
Licensor $110 per hour. The payment for support and maintenance shall be due and
payable within thirty (30) days after presentation of an invoice related to such
maintenance.
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1.10 Upgrades and New Version. Licensor agrees to provide the
Source Code for Upgrades and/or New Versions, for the next twelve months, if and
when available
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2. LICENSOR WARRANTY DISCLAIMER.
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2.1 Warranty Disclaimer. The Licensor Technology is provided "as
is". Licensor HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
WITH RESPECT TO THE LICENSOR TECHNOLOGY, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT.
3. DELIVERY OF LICENSOR TECHNOLOGY.
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3.1 Manner of Delivery. Licensor shall make Complete Delivery to
PCsupport.com of each of the Deliverables in accordance with Exhibit A. The
Deliverables shall be clearly labeled and dated with the date of delivery, and
shall be accompanied by a Delivery Report and Licensor's invoice.
3.2 Permissions. In the event that any Deliverable incorporates,
includes or otherwise contains any tools, technologies or libraries other than
those provided by PCsupport.com or contained in the Licensor Technology (whether
commercially available or licensed by Licensor from third-parties), Licensor
shall deliver copies of the license agreements authorizing Licensor's use of
such materials with such Deliverable.
4. LICENSOR'S INVESTMENT REPRESENTATIONS.
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4.1 Investment Intent. Licensor represents and warrants to
PCsupport.com that Licensor's purchase of shares of common stock or warrants to
purchase common stock of PCsupport.com is for investment, for Licensor's own
account, and not with a view to the resale or distribution thereof.
4.2 Sophistication. Licensor represents and warrants to
PCsupport.com that Licensor is a sophisticated investor and has the capacity and
experience to protect its own interests in this transaction and determine the
merits and risks of an investment in securities of PCsupport.com.
4.3 Opportunity to Receive Adequate Information. Licensor
acknowledges that Licensor has had adequate opportunity to ask questions and
receive answers of PCsupport.com on all matters relevant to Licensor's decision
to invest in securities of PCsupport.com.
4.4 Non-registered Shares. The Subscriber understands and
acknowledges that (i) the common shares paid hereunder have not been registered
under the Securities Act of 1933, as amended (the "Securities Act") and are
therefore restricted securities; (ii) such common shares may not be sold or
transferred unless they are registered under the Securities Act or an exemption
from such registration is available; and (iii) a legend to that effect will be
placed on the certificates representing such common shares.
4.5 Company Disclosure. The Subscriber has been provided with a
copy of and has reviewed (i) Company's Registration Statement Form SB-2
effective June 23, 2000, (ii) the Company's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2000, and (iii) the Company's investor relations
materials.
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5. LICENSOR'S COMPENSATION.
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5.1 Sale of Licenses. In exchange for the licenses granted
herein, PCsupport.com agrees to pay the Licensor as follows:
US$100,000 in Cash plus 100,000 common shares to be issued upon acceptance of
the Deliverables by PCsupport.com. The first commercial use of the Deliverables
shall constitute acceptance, if acceptance has not been given prior to first
commercial use.
The above minimum payments are and the following contingent payments would be in
consideration of Licensor granting the Licensed Rights to PCsupport.com on the
terms of this Agreement.
5.2 Contingent Additional Payments. After the first 400,000
licenses are distributed the following additional payments will be made after
each 100,000 additional licensed users of eSupport:
66,666 warrants at $2.00 (400,001-500,000 licensed or permitted
users of eSupport)
+ 100,000 warrants at $3.00 (500,001-600,000 licensed or permitted
users of eSupport)
+ 100,000 warrants at $4.00 (600,001-700,000 licensed or permitted
users of eSupport)
Warrants entitle the holder, for a period of 5 years after the date hereof,
to purchase a number of shares of common stock of PCsupport.com at the exercise
price stated above (US$), or its market value equivalent in common shares and/or
purchase rights surrendered pursuant to cashless exercises of these warrants,
and the number of shares and kind of shares is subject to adjustment in the
event of stock splits, stock dividends, mergers, reclassifications of shares or
other recapitalizations.
The numbers of users, whatever the method of Electronic Delivery to the
users, are aggregated for this purpose. For the purposes of this section,
PCsupport.com's agreement with TELUS will be considered to be 300,000 licenses
for the period ending June 30, 2001, unless the number of licenses exceeds
400,000, in which case the number of users aggregated will be set at 400,000.
Thereafter new TELUS subscribers will be aggregated as TELUS pays PCsupport.com.
For PCsupport.com agreements other than with TELUS which include the sale of
licenses of Licensor Technology or Derivatives thereof by PCsupport.com,
licenses will be aggregated at the time of delivery by PCsupport.com if such
licenses are pre-paid by PCsupport.com's customer, and will be aggregated at
the ratio of 30% of the number of licenses delivered by PCsupport.com at the
time of delivery if such licenses are paid by PCsupport.com customers at the
time of activation.
Licensor will receive not less frequently than every three calendar months
from PCsupport.com or an Affiliate a report listing all users of eSupport until
the number of eSupport users exceeds 600,000 users.
5.3. PCsupport.com Representations.
(a) The issuance of shares of common stock and warrants
issuable to Licensor by PCsupport.com under this Agreement have been duly and
validly authorized by all necessary corporate action on the part of
PCsupport.com and its Affiliates and will not violate the charter of, or any
agreement, law or restriction binding on, PCsupport.com or its Affiliates; and
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(b) Upon issuance, the shares of common stock issuable under
this Agreement will be validly issued, fully-paid and non-assessable shares of
common stock of PCsupport.com, and the shares of common stock issuable upon
exercise of the warrants issuable under this Agreement will be validly issued,
fully-paid and non-assessable shares of common stock of PCsupport.com upon
exercise of such warrants and payment of the exercise price thereof, and all
such shares, when issued, shall be free of claims, encumbrances, liens and
restrictions, other than restrictions on transfer under applicable securities
laws.
6. PUBLICITY.
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6.1 Licensor Credits. Licensor shall be given credit in the
credit portion of the Product and on all promotional material in essentially the
following form:
(C) 2000 Remote Diagnostics, Inc. All rights reserved.
The size and placement of the credit within the list of credits, the length
of time it will be seen and whether it will be a shared credit shall be
compatible with the parameters and general look and feel of the PCsupport.com
Technology. The Licensor logo will be displayed as appropriate (in
PCsupport.com's sole discretion) to the purpose of promoting the Product and the
PCsupport.com Technology; provided, however, that PCsupport.com agrees to use
good faith efforts to consult with Licensor regarding the manner of display of
the Licensor logo.
6.2 Publication of Relationship. The Parties shall have the
right to make reasonable publication of their relationship, provided that each
party shall have reviewed and approved any written materials concerning such
relationship in advance of the public disclosure of such materials and such
approval not to be unreasonably withheld.
6.3 Discretion of PCsupport.com. All aspects of the marketing,
distribution and/or exploitation of the Product shall be in PCsupport.com's sole
discretion, including, without limitation, the channels of distribution,
pricing, packaging, labeling, advertising, promotion, terms and conditions of
sale, compilation of customer names and use of warranty and user registration
information.
6.4 PCsupport.com' Trademarks. Any original trade names,
trademarks, service marks, commercial symbols and/or logos created and used by
PCsupport.com in connection with the marketing and distribution of the Product
shall be the sole and exclusive property of PCsupport.com. Licensor acknowledges
and agrees that it shall not acquire any rights with respect to such trade
names, trademarks, service marks, commercial symbols and/or logos as a result of
PCsupport.com's use thereof in connection with the Product, and that
PCsupport.com shall be free at all times to use any such trade names,
trademarks, service marks, commercial symbols and/or logos in connection with
any other products or services.
6.5 Licensor's Trademarks. Any original trade names, trademarks,
service marks, commercial symbols and/or logos created and used by Licensor in
connection with the Licensor Technology shall be the sole and exclusive property
of Licensor. PCsupport.com acknowledges and agrees that it shall not acquire any
rights with respect to such trade names, trademarks, service marks, commercial
symbols and/or logos as a result of PCsupport.com' use thereof as permitted or
required in this Agreement in connection with the Product, and that Licensor
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shall be free at all times to use any such trade names, trademarks, service
marks, commercial symbols and/or logos in connection with any other products or
services.
6.6 Other Products. Nothing in this Agreement shall be deemed to
prevent or restrict PCsupport.com or Licensor in any manner from marketing any
other products, whether similar or dissimilar to the Product, and such marketing
activities shall not result in any liability or responsibility to compensate the
other party in any manner as a result of any such independent marketing
activities.
7. PROPRIETARY INFORMATION.
7.1 Protection of Proprietary Information. Each of the parties
agrees that it shall not, directly or indirectly, either during or subsequent to
the term of this Agreement (a) disclose any Proprietary Information (defined
below) of any other party, other than to its own employees or subcontractors who
participate directly in the performance of the receiving party's respective
obligations under this Agreement; (b) copy or use any Proprietary Information of
any other party except for the purpose of fulfilling its respective obligations
hereunder; or (c) publish any Proprietary Information of any other party without
the prior written consent of such party. The degree of care employed by each of
the parties to protect and safeguard the Proprietary Information of the other
parties shall be no less protective than the degree of care used by such party
to protect its own confidential information of like importance. Each party
agrees that all employees and subcontractors to whom Proprietary Information is
disclosed pursuant to Section 7.1(a) above will have signed a Confidentiality
Agreement in substantially the form attached hereto as Exhibit B.
7.2 Licensor's Proprietary Information. For purposes of this
Agreement, Licensor's Proprietary Information includes: (a) concepts embodied in
the source code for Licensor Technology that constitute trade secrets; (b) any
non-public information concerning the business, marketing, product plans or
finances of Licensor; (c) any information contained in reports provided to
PCsupport.com or its Affiliates pursuant to this Agreement; (d) the terms of
this Agreement, and any Attachments, Exhibits and addenda hereto; and (e)
materials or information designated in writing by Licensor as "Proprietary
Information."
7.3 PCsupport.com's Proprietary Information. For purposes of
this Agreement, PCsupport.com' Proprietary Information includes: (a) concepts
embodied in the source code for any of the PCsupport.com Technology that
constitute trade secrets; (b) except to the extent constituting Licensor
Technology or Licensor's Proprietary Information, concepts embodied in the
source code developed or supplied by PCsupport.com for any Product; (c) any non-
public information concerning the business, marketing, product plans or finances
of PCsupport.com, its Affiliates or sublicensees; (d) any information contained
in reports provided to Licensor pursuant to this Agreement; (e) the terms of
this Agreement, and any Attachments, Exhibits and addenda hereto; and (f) any
additional information designated in writing as "Proprietary Information" by
PCsupport.com or its Affiliates.
8. REPRESENTATIONS AND WARRANTIES OF LICENSOR.
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8.1 Licensor represents and warrants for the benefit of
PCsupport.com that:
(a) The performance of this Agreement and of Licensor's
obligations hereunder shall not breach any separate agreement by which Licensor
is bound.
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(b) Licensor possesses full power and authority to enter
into this Agreement, to fulfill its obligations hereunder, and to grant the
Licensed Rights and all related rights concerning the Licensor Technology herein
granted to PCsupport.com.
(c) Licensor has and shall have the full right to disclose,
use and deliver to PCsupport.com, without liability to any third party, the
Deliverables.
(d) There are and shall be no liens or encumbrances against
the Deliverables or any elements thereof which could derogate from or be
inconsistent with PCsupport.com' rights, title and interests in and to the
Licensed Rights and the Product.
(e) The Product, nor any portion thereof, does not and will
not, and in the production and development of the Product Licensor did not and
shall not, infringe upon or violate any right of privacy or publicity, Moral
Right, or any patent, copyright, trademark, trade secret, or other property or
proprietary right of any third party, and the exercise of PCsupport.com's rights
as contemplated hereunder do not and will not infringe or violate any of such
third party rights.
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9. REPRESENTATIONS AND WARRANTIES OF PCSUPPORT.COM.
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PCsupport.com represents and warrants for the benefit of Licensor that:
(a) The performance of this Agreement and of PCsupport.com'
obligations hereunder shall not breach any separate agreement by which
PCsupport.com is bound.
(b) So long as this Agreement remains in effect,
PCsupport.com shall not make or enter into any agreement or arrangement with any
third party that is inconsistent with any of the provisions of this Agreement.
(c) PCsupport.com possesses full power and authority to
enter into this Agreement and to fulfill its obligations hereunder.
10. TERM AND TERMINATION.
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10.1 Term. This Agreement shall commence on the date first shown
above and shall continue until mutually terminated by agreement of the parties
or unless terminated in accordance with this Section 10.
10.2 Termination Generally.
(a) Nothing in this Section 10.2 is intended to relieve
either party of its obligations accruing under the terms of this Agreement prior
to the date of termination.
(b) The Licensed Rights will survive the termination of this
Agreement into perpetuity if the payments pursuant to Section 5.1 have been
previously made and received.
(c) The other rights granted to each party under this
Agreement shall revert to their respective owners:
(d) If PCsupport.com has any third party licensing
agreements with respect to which the Licensed Rights are necessary for
performance of the rightful obligations of support thereunder, the Licensed
Rights shall continue in accordance with their terms (so long as such terms, at
the date entered into, are not otherwise inconsistent with this Agreement) and
provided further that any obligations of PCsupport.com to pay royalties with
respect to such licensing agreements (if any) shall continue.
(e) PCsupport.com shall be entitled to retain on a strictly
confidential basis as many copies of such Licensor Technology and Proprietary
Information as shall be reasonably required to fulfill PCsupport.com'
obligations to provide customer service and support with respect to the Product.
(f) This Agreement may be terminated by PCsupport.com at any
time for any reason other than those provided for under section 10.3 upon
notice to the Licensor and payment of $500,000 to the Licensor and the issuance
of all warrants provided for in section 5.2.
10.3 Termination for Breach.
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(a) Generally. If PCsupport.com materially defaults in the
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performance of any provisions of this Agreement or Licensor materially defaults
in the performance of any of the provisions of the Agreement, then the non-
defaulting party may give written notice to the defaulting party that if the
default is not cured within thirty (30) days the Agreement shall be terminated.
If the non-defaulting party gives such notice and the default is not cured
during the thirty (30) day period, then the Agreement shall terminate
immediately upon notice by the non-defaulting party. Notwithstanding the
previous sentence, the thirty (30) day period shall be suspended for so long as
(i) the default is reasonably capable of being cured within thirty (30)
additional days and (ii) the defaulting party is actively engaged in curing the
default. The suspension shall end and termination may occur if, at any time, the
default becomes capable of being cured and is not cured.
(b) For Breach by PCsupport.com. If Licensor terminates this
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Agreement pursuant to Section 10.3(a) above, as of the date of termination,
PCsupport.com shall reassign to Licensor all rights to the Licensor Technology
granted and assigned pursuant to Section 1 above, although Section 10.2 shall
continue to apply. For purposes of this paragraph, a good faith dispute as to
the determination or calculation of royalty payments due licensor under this
Agreement will not be considered to be a material breach so long as
PCsupport.com offers to submit the dispute to arbitration.
(c) For Breach by Licensor. If PCsupport.com terminates this
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Agreement pursuant to Section 10.3(a) above, PCsupport.com shall continue to
have the rights set out in Section 1 of the Agreement, and shall have no
liability (whether financial or otherwise) to Licensor with respect to the
Product other than a liability accrued prior to the date of termination and
royalty payments pursuant to Section 5.
(a) Bankruptcy. Either party will have the right to terminate
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this Agreement immediately in the event of the insolvency, bankruptcy or
voluntary dissolution of the other party and if the Licensor becomes insolvent,
bankrupt or has voluntarily dissolved, PCsupport.com shall keep the Deliverables
as defined including, but not limited to, the object and source code and all
materials necessary to maintain the licensed technology.
10.4 Additional Remedies. Nothing in this Section 10 shall be
construed to limit either party's access to remedies it may have at law or in
equity.
11. GENERAL PROVISIONS.
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11.1 Infringement by Third Parties. Each party shall notify the other
promptly upon learning of any unauthorized use of the Deliverables. The parties
shall promptly take appropriate action to halt such unauthorized use as they may
agree upon. If one party desires to take action and the other does not, the
party desiring to take the action may do so at its own expense and the other
party shall cooperate fully with it in investigating any such instance and, if
requested to do so, shall assist and participate in such action, including
permitting any such action to be taken in its name, either alone or with the
other party. The party taking the action shall keep all recoveries from any
such action.
11.2 Indemnification. Each party will indemnify the other party and
its customers and sublicensees for, and hold them harmless from, any loss,
expense (including reasonable attorney's fees and court costs), damage or
liability arising out of any claim, demand or suit resulting from a breach of
any of the warranties of the indemnifying party in Sections 8 or 9. As a
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condition to indemnification, the indemnified party will promptly inform the
indemnifying party in writing of any such claim, demand or suit and the
indemnifying party will fully cooperate in the defense thereof. In the case of
an indemnification by Licensor, PCsupport.com will have the right to withhold
from any payments due Licensor the amount of anticipated defense costs plus
additional reasonable amounts as security for Licensor's obligations under this
Section 11.2. As a condition to indemnification, the indemnified party will not
agree to the settlement of any such claim, demand or suit prior to a final
judgment thereon without the consent of the indemnifying party, which consent
shall not be unreasonably withheld.
11.3 Arbitration. Any dispute or claim arising out of or in connection
with the payment of royalties or other compensation under this Agreement will be
finally settled by binding arbitration in Seattle, WA (or at such other location
as the parties may agree) on an expedited basis under the Rules of Arbitration
of the American Arbitration Association by a panel of three (3) arbitrators, who
shall be selected as follows: PCsupport.com and Licensor shall each have ten
(10) days from the date of the Arbitration Notice (the "Initial Selection
Period") to select an arbitrator, and the two arbitrators so selected shall
mutually select within ten (10) days of the expiration date of the Initial
Selection Period, a third arbitrator, and three (3) arbitrators so selected
shall arbitrate the matter; provided, that if one party fails to appoint an
arbitrator within the Initial Selection Period, then the arbitrator appointed by
the other party within the Initial Selection Period shall select two (2) other
arbitrators so within the ten (10) days after the expiration of the Initial
Selection Period and these three (3) arbitrators so selected shall arbitrate the
matter. Decisions of the arbitrators will be made by the unanimous or majority
vote of the arbitrators. The parties acknowledge that it is their intent to
expedite the arbitration to the fullest extent practical, and that the parties
will request the arbitrators to complete the arbitration and render a decision
within fifteen (15) days after the date of completion of the arbitration
hearing.
11.4 Governing Law. The validity, construction and enforceability of
this Agreement will be governed in all respects by the law of the Province of
British Columbia, without reference to its choice of law principles. Any action
or proceeding brought to enforce the terms of this Agreement shall be brought in
Vancouver, BC, and each party agrees to waive any objections to personal
jurisdiction and venue in Vancouver.
11.5 Attorney's Fees. In the event of any legal proceeding (including
arbitration) between the parties arising under this Agreement (whether by
petition to a court or by arbitration), the prevailing party in any action shall
be entitled to recover, in addition to any other relief awarded or granted,
its costs and expenses (including reasonable attorneys' fees) incurred in any
such proceeding.
11.6 Force Majeure. If the performance of this Agreement or any
obligations hereunder is prevented, restricted or interfered with by reason of
fire or other casualty or accident, strikes or labor disputes, war or other
violence, any law, order, proclamation, regulation, ordinance, demand or
requirement of any government agency, or any other act or condition beyond the
reasonable control of the parties hereto, the party so affected upon giving
prompt notice to the other party will be excused from such performance during
such prevention, restriction or interference. In the event that any of the
conditions listed in this paragraph continue for a period in excess of one
hundred eighty (180) days, the other party may (at its option) terminate this
Agreement upon sixty (60)-day prior notice. Such termination shall not be a
termination for material breach.
<PAGE>
11.7 Notices, Statements and Payments. Notices, payments and
statements by any party under this Agreement will be in writing and will be
delivered by any means for which proof is obtainable, including (where
applicable and without limitation) by certified mail, overnight courier,
electronic mail or telecopy confirmed by first-class mail, addressed to the
other parties at their addresses given herein (or at such other address as may
be communicated to the notifying party in writing) and will be deemed to have
been given when received or when receipt has been refused.
11.8 Counterparts. This Agreement may be executed in counterparts,
each of which will constitute an original instrument and all of which together
will constitute one and the same instrument.
11.9 Limitation on Liability; Remedies. Liability under this
Agreement is limited to the parties' respective representations, warranties, and
indemnities under Sections 8 and 9 above, other than for compensation due and as
expressly stated in this agreement. NEITHER PARTY SHALL BE OTHERWISE LIABLE TO
THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY
KIND OR NATURE INCLUDING LOST PROFITS, WHETHER SUCH LIABILITY IS ASSERTED ON THE
BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS WARNED OR BEEN
WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE; PROVIDED THAT SUCH
LIMITATION SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATIONS OF LICENSOR AS A
RESULT OF THE BREACH OF THE REPRESENTATIONS SET FORTH IN SECTIONS 8.1(c), (d),
AND (e).
11.10 Severability. If any provision in this Agreement is found or
held to be invalid or unenforceable, then the meaning of said provision will be
construed, to the extent feasible, so as to render the provision enforceable, as
if no feasible interpretation would save such provision, it will be severed from
the remainder of this Agreement which will remain in full force and effect
unless the severed provision is essential and material to the rights or benefits
received by either party. In such event, the parties will use their best efforts
to negotiate, in good faith, a substitute, valid and enforceable provision or
agreement in order to most nearly effect the parties' intent in entering into
this Agreement.
11.11 Further Assurances. The parties will each perform such acts,
execute and deliver such instruments and documents, and do all such other things
as may be reasonably necessary to accomplish the transactions contemplated by
this Agreement.
11.12 No Waiver. No waiver of any term or condition of this Agreement
will be valid or binding on a party unless the same has been mutually assented
to in writing by all parties. The failure of a party to enforce at any time any
of the provisions of this Agreement, or the failure to require at any time
performance by one or both of the other parties of any of the provisions of this
Agreement, will in no way be construed to be a present or future waiver of such
provisions, nor in any way affect the ability of a party to enforce each and
every such provision thereafter.
11.13 Entire Agreement. The terms and conditions contained in this
Agreement and the various Attachments and Exhibits attached hereto and
incorporated by reference herein constitute the entire agreement between the
parties with respect to the subject matter thereof and supersede all previous
agreements and understandings, whether oral or written. No agreement or
understanding varying or extending the terms and conditions of this Agreement
will be binding upon any party unless in a subsequent written document which
expressly refers to this Agreement and
<PAGE>
which is signed by the party to be bound thereby. Nothing in this Agreement is
superseded or modified by any future Work Order issued by PCsupport.com to
Licensor or the prior one, which is dated July 24, 2000.
11.14 Assignment. No party may assign or delegate this Agreement or
any of its rights or duties under this Agreement, by operation of law otherwise,
without the prior written consent of the other party hereto. Notwithstanding the
foregoing, either party may assign this Agreement to a person or entity into
which it has merged or which has otherwise succeeded to substantially all of the
business and/or assets of the assignor, and which has assumed in writing or by
operation of law, said party's obligations under this Agreement. In addition,
PCsupport.com may assign all of its rights under this Agreement to an Affiliate
of PCsupport.com which has assumed in writing, PCsupport.com's obligations under
this Agreement. Subject to the foregoing, this Agreement will inure to the
benefit of, and will be binding upon, the parties and their respective
successors and assigns.
11.15 No Agency. The parties are independent contractors with respect
to each other, and not agents of each other, and no party will have any
authority to bind any other party in any manner whatsoever.
11.16 Survival. Any terms of this Agreement that by their nature
extend beyond the term of this Agreement remain in effect until fulfilled.
12. DEFINITIONS.
-----------
12.1 "Affiliate" means any parent, subsidiary or affiliated
corporation (including joint venture partners, strategic partners, distribution
partners and other similarly affiliated companies).
12.2 "Client Product" means the portion of the Product that resides
on the end-users' hardware devices.
12.3 "Complete Delivery" of a Deliverable means the Licensor's
delivery to PCsupport.com of both the Deliverable and the Delivery Report.
12.4 "Deliverables" are those items so identified on Exhibit A as
items to be delivered to PCsupport.com in accordance with this Agreement.
Deliverables shall include all object and source code, sufficiently documented
such that a reasonably competent programmer could maintain or modify the source
code. Deliverables shall also include libraries, header files, executable
utilities, batch files and any other components developed or needed for
compilation of the Licensor Technology.
12.5 "Delivery Report" is a report accompanying each Deliverable
which identifies the Deliverable and describes the development functions and
operation of the Deliverable (including its integration into the Licensor
Technology as a whole).
12.6 "Derivative Work" means any enhancement, modification or
adaptation of the Product.
<PAGE>
12.7 "Electronic Delivery" means the delivery of a Client Product to
an end user via electronic means such as public data network, cable television,
fiber optic or wire pathway, microwave or radio wave signals, satellite,
telephone line or any other means now known or hereafter devised whereby all or
part of the Client Product is delivered without transporting a physical object
incorporating the Client Product.
12.8 "eSupport" means PCsupport.com' online, proactive and user
focused technical support services of which the Product would be one possible
example.
12.9 "Intellectual Property Rights" means, collectively, universal
patents, patent applications, trade secrets, copyrights, copyright registrations
and applications therefor, moral rights, trade names, trademarks, service marks,
registrations and applications for registration of trade names, rights in
characters, plots and story lines, rights in trade dress and all other
intellectual property rights and proprietary rights, whether arising under the
laws of the United States or any other state, country or jurisdiction, including
but not limited to all rights or causes of action for infringement or
misappropriation of any of the foregoing.
12.10 "Licensed Rights" means the rights granted by Licensor to
PCsupport.com in connection with Licensor Technology under this Agreement
thereof developed by or for PCsupport.com.
12.11 "Licensor Technology" means (i) the RID-Dialup and (ii) the
software and design tools, which were fully developed by Licensor or its
subcontractors or licensees prior to creation of the Product, including
copyrights, patents, patent applications or other proprietary rights.
12.12 "PCsupport.com Application Program Interfaces" means the
software sub-routine that allows specific types of communication with the
PCsupport.com Technology and the printed description and electronic code samples
that illustrate the functionality and suggested use of the program code. These
Application Program Interfaces are commonly referred to as "APIs".
12.13 "PCsupport.com Client" means the current or future software
which operates on the end user's computer hardware and software and provides the
non-platform functionality and network connectivity for the PCsupport.com
esupport service not provided by the PCsupport.com Technology.
12.14 "PCsupport.com Host" means the computer and communications
hardware and software (whether owned or licensed by PCsupport.com) that enables
the functionality and network connectivity of the PCsupport.com Technology.
12.15 "PCsupport.com Host Software" means the software that is
delivered by PCsupport.com as part of the PCsupport.com Host Test System.
12.16 "PCsupport.com Host Test System" means the hardware and software
required to simulate the PCsupport.com Host and its communications between end
users in a test environment for the purposes of developing and testing a Product
for use on the PCsupport.com Technology.
<PAGE>
12.17 "PCsupport.com Platform" means the current or future software
that operates on the PCsupport.com Host and provides the non-client
functionality and network connectivity for the PCsupport.com eSupport service
not provided by the PCsupport.com Client.
12.18 "PCsupport.com SDK" means the current or future software
developer kit used to develop content that will operate on the PCsupport.com
Technology and the PCsupport.com Host in conjunction with the PCsupport.com
Client.
12.19 "PCsupport.com Technology" means the PCsupport.com Platform, the
PCsupport.com Host, the PCsupport.com SDK, the PCsupport.com Application Program
Interfaces and the PCsupport.com Client.
12.20 "Product" means the complete software product comprising (i) the
custom computer software and associated audiovisual works that incorporate
Licensor Technology developed by PCsupport.com as a Connection Wizard or Data
Collection App for the PCsupport.com Technology and (ii) including the
supporting documentation necessary to modify a product.
12.21 "Proprietary Information" means that information defined as
Proprietary Information set forth in Sections 7.2 and 7.3.
12.22 "RID Dialup" shall mean the program code for the Licensor's
software described in Recital B hereto. The RID-Dialup includes only source and
object code and does not include any data files.
12.23 "Server Products" mean the portion of a Product that resides on
the PCsupport.com Host and enables use of the Client Product.
12.24 "Subscriber" shall mean an end-user which contracts with
PCsupport.com for the provision of online technical support services.
12.24 "Work Order" means any contract between PCsupport.com and the
Licensor or its subsidiary, division or Affiliate, with or without third party
participants, for the design, creation, support, improvement or other
development of software or services.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their duly authorized and empowered officers and representatives as of the day
and year first above written.
LICENSOR PCsupport.com
REMOTE DIAGNOSTICS, INC. PCSUPPORT.COM, INC.
a Delaware corporation a Nevada corporation
<PAGE>
By /s/ Isaac Moltiz By /s/ Steve Macbeth
-------------------------------- -------------------------------
Print Name: Isaac Moltiz Print Name Steve Macbeth
Title President Title CT0
<PAGE>
EXHIBIT A
DELIVERABLES
------------
[1] RID-Dialup RIDServer Software:
[a] RIDNTV1.DLL and source code
[b] RID Manager software and operating framework, defined as C:\RID on
Sherman Oaks RIDServer. This includes source code.
[2] RID-Dialup Client Software:
[a] 32-bit version (Win95/98 and NT Workstation) + source code
[b] 16-bit version (Win3.1) + source code
[c] DOS version + source code
Items 1a, 1b, 2a have been previously delivered. Items 2b, 2c will be delivered
no later than 08/31/2000.
