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EXHIBIT 10.2
LICENSING AGREEMENT
THIS AGREEMENT made as of the 8th day of December , 1999.
BETWEEN:
SMARTSOURCES.COM TECHNOLOGIES INC.,
having an address for delivery at Suite 100, 2030 Marine Drive, North
Vancouver, British Columbia, Canada, V7P 1V7
(hereinafter called "SMARTSOURCES")
OF THE FIRST PART
AND:
EVERDREAM CORPORATION
Having an address for delivery at 1288 Pear Ave, Mountain View, CA 94043
(hereinafter called "EVERDREAM")
OF THE SECOND PART
W H E R E A S:
A. SmartSources specializes in the development and customization of its
kServer software solution.
B. Everdream wishes to contract SmartSources to implement a web portal
solution based on the kServer software and the integration of third party
solutions in the kServer.
C. SmartSources has agreed to license to Everdream, and Everdream has agreed
to license from SmartSources the software called kServer Portal Edition,
upon the terms and conditions herein contained.
The parties hereto hereby covenant and agree as follows:
1. DEFINITIONS
1.01 In this Agreement:
"COMPLETION DATE" means the delivery date agreed between both Parties,
being no later than January 30, 2000.
"kSERVER" means the software developed by SmartSources.
"kSERVER PORTAL EDITION" means the customization of the kServer to offer
portal services to the end user according to the provisions contained in
Schedule "B".
"SYSTEM" means the hardware and operating system requirements to run the
kServer Portal Edition as set out in Schedule "C".
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"EMPLOYEES" and "PERSONNEL" means all employees, officers, directors and
agents of SmartSources or Everdream, and any of them, and "EMPLOYEE" shall
mean any of them.
"CODE ERROR" is a mutually agreed upon program error in the latest release
of kSERVER PORTAL EDITION to Everdream.
2. LICENSE
2.01 SmartSources hereby grants to Everdream a perpetual, non-exclusive,
non-transferable license (the "LICENSE") to use the kServer Portal Edition
solely upon the terms and conditions herein contained.
2.02 The License herein granted to Everdream is solely granted upon the specific
terms and restrictions herein contained, and such License does not grant to
Everdream the right, (without limiting the generality of the forgoing):
(a) to sell, transfer, assign, publish or license the kServer Portal
Edition, or any of it, to any other entity which is less than 100%
owned by Everdream,
(b) to reproduce the kServer Portal Edition or to copy it onto other
computers other than as initially licensed, except as specifically
permitted in writing by SmartSources.
2.03 The License herein granted to Everdream shall allow multiple concurrent
users and guarantee a minimum standard performance according to the
provisions contained in Schedule "A".
2.04 The kServer Portal Edition shall remain the exclusive property of
SmartSources, and Everdream covenants and agrees to do no act to impair the
exclusive property rights of SmartSources in the kServer Portal Edition.
2.05 SmartSources reserves the right to protect, in any and all jurisdictions,
by copyright, patent, tradename and all other forms of legal and equitable
protection, its right, title and interest to the kServer Portal Edition.
2.06 SmartSources reserves the right to publish, sell, license or distribute the
kServer Portal Edition to any third Party other than direct competitors of
Everdream.
3. TERM AND FEES
3.01 The license herein granted is effective as of the date of execution of this
agreement.
3.02 Everdream agrees to pay SmartSources a customization, licensing and
integration fee in the amount of $50,000 US Dlls for the system as
described in Schedule "C". In the following schedule:
a) $15,000 US Dlls. due upon the execution of this contract.
b) $35,000 US Dlls. due upon completion date.
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3.03 Everdream agrees to pay SmartSources the amount of $10,000 US Dlls. for
each additional CPU as may be required from time to time in the future.
3.04 In addition to the fees payable hereunder, Everdream shall indemnify and
hold harmless SmartSources against all value added, sales, social
services, excise and other taxes, rates and duties chargeable against
SmartSources (except taxes based on net income) arising from the
transactions contemplated by this Agreement.
3.05 SmartSources shall submit all current invoices due for payment under this
Agreement to the address of Everdream set out above, or such other address
as Everdream may direct, in writing.
3.06 Everdream shall make payment of all accurately submitted invoices on a net
30 days account basis.
4. RESPONSIBILITIES
4.01 Each of Everdream and SmartSources shall designate a Project Manager. The
respective Project Managers shall be responsible for managing the project
according to the project plan, or as it may be amended from time to time.
4.02 The Project Manager for Everdream shall be responsible for the
coordination and execution of Everdream obligations:
(a) gathering information about Everdream's procedures, practices and
data as required for the configuration of the kServer Portal Edition
and the development of any Special Requirements.
(b) co-ordinate the preparation of the System and configure the System in
preparation for the kServer Portal Edition based upon the
specifications set out in Schedule "B".
(c) planning and co-ordinating for Everdream on the installation and
training of the kServer Portal Edition;
(d) post-installation maintenance of an up-to-date library of the new
kServer Portal Edition releases and kServer Portal Edition backup;
(e) on-going liaison with the users of the kServer Portal Edition and
liaison with SmartSources Project Manager.
4.03 The Project Manager for SmartSources shall be responsible for the
coordination and execution of the SmartSources obligations including:
(a) customization of the kServer Portal Edition as set in Schedule "B"
(b) delivery of he kServer Edition to Everdream, installation of the
kServer Portal Edition, and training in the use of the kServer Portal
Edition as set out in Installation and Initial Training.
(c) on-going liaison with Everdream's Project Manager.
(d) rectify any code error that may be encounter from time to time in the
kServer Portal Edition.
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(c) Develop of a detail low-level specification document based on Schedule
"B" in agreement with Everdreams' project manager.
4.04 Everdream shall be solely responsible for the supervision, management and
control of the kServer Portal Edition as installed in the System including,
but not limited to:
(a) assuring proper machine configuration, program up-date installation,
audit controls and operating methods;
(b) establishing adequate backup plans based on alternative hardware,
fault tolerant systems or manual procedures as well as re-start and
recovery procedures in the event of downtime;
(c) ensuring that only adequately trained and authorized employees use the
kServer Portal Edition; and
(d) implementing sufficient procedures and checkpoints to satisfy
requirements for security and accuracy of data input and output, as
well as establishing and implementing adequate procedures and
safeguards with respect to non-disclosure of the kServer Portal
Edition.
(c) Develop of a detail low-level specification document based on Schedule
"B" in agreement with SmartSources' project manager.
5. WARRANTIES AND LIMITATIONS OF RESPONSIBILITY
5.01 SmartSources warrant that the kServer Portal Edition will perform in
accordance with the official release of the kServer.
5.02 SmartSources warrant that the kServer Portal Edition does not infringe any
patent, trademark, copyright or other rights of ownership of any third
party. SmartSources shall clearly identify any software which is required
to be used in conjunction with the kServer Portal Edition, such as
operating systems or communication software, which must be licensed from
third parties. SmartSources shall indemnify and hold Everdream harmless
from and against any claims, demands, expenses, liabilities and judgments
arising out of, or in connection with, any claim that the kServer Portal
Edition infringes any existing patent, copyright, trademark or right of
ownership as aforesaid.
5.03 The above warranties are in lieu of any and all other warranties express,
implied or statutory, including, though not limited to, any implied
warranties of merchantability or fitness for a particular purpose.
Everdream expressly waives any such warranties as may be imposed by law. In
no event shall SmartSources be liable for direct, indirect, special or
consequential damages (including damages for loss of business profits,
business interruption, loss of business information) arising out of any
breach of the above warranties or implied warranties, even if SmartSources
has been advised of the possibility of such damages.
5.04 Neither warranties herein granted shall extend to the rectification of
failures from:
(a) a defect in or malfunction of the designated hardware or any other
Everdream equipment in the System;
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(b) the use of the kServer Portal Edition on computer hardware or a
computer configuration other than the System;
(c) electrostatic discharge or magnetic fields;
(d) the misuse of the kServer Portal Edition or its use in conjunction
with any other software;
(e) any failure to keep or store the kServer Portal Edition correctly;
(f) failure to keep all or part of any equipment clean;
(g) any damage occasioned by acts of war, civil unrest, or acts of God;
or
(h) any other cause not within the control of SmartSource and which
could not be prevented by the exercise of reasonable diligence by
SmartSources
6. ENHANCEMENTS AND OTHER BUSINESS
6.01 SmartSources shall have the right, at any time and from time to time, to
modify, expand or enhance the kServer Portal Edition, and Everdream shall
cooperate fully with, and allow SmartSources personnel to effect such
changes, provided that such changes do not interfere with, or disrupt
Everdream's Planning Operations or use of the kServer Portal Edition.
7. CONFIDENTIALITY, RESTRICTIVE COVENANTS AND INFRINGEMENT
7.01 Everdream shall keep the kServer Portal Edition confidential, and
Everdream covenants and agrees not to make available any part of the
kServer Portal Edition, including, but not limited to user manuals,
functional specifications, machine code, object code, machine code
translations, screen dumps or reproductions, software printouts or
database descriptions in any form to any third party.
7.02 Everdream shall not divulge, furnish, use for the benefit of any third
person, or make accessible, to any third party, the kServer Portal
Edition, or any part thereof, including, without limitation, logic
diagrams, flow charts, and/or object code.
7.03 Everdream shall not use the kServer Portal Edition, or any part thereof,
to provide services for any firm, company or individual outside of
Everdream's registered users and visitors to any Everdream's web sites,
or for any purpose or use other than as strictly licensed herein, whether
for remuneration or not.
7.04 Everdream shall not copy the kServer Portal Edition, in whole or in part,
except as specifically authorized in writing by SmartSources.
7.05 Everdream, recognizing that the kServer Portal Edition and all
information in respect thereto constitutes valuable proprietary rights
and ownership to SmartSources, covenants and agrees to indemnify and hold
harmless SmartSources against any and all loss or damage occasioned by
Everdream's breach of the terms of this Agreement.
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7.06 In the event that Everdream becomes aware that a third party or parties
are improperly using the kServer Portal Edition, or any part thereof, or
infringing upon any proprietary rights of SmartSources to the kServer
Portal Edition, Everdream shall promptly notify SmartSources of all facts
known to its relating to such use.
7.07 Everdream shall comply with all reasonable requests to assist
SmartSources in protecting SmartSources' proprietary interest in the
kServer Portal Edition. Everdream shall take all action required with its
employees and agents, by agreements or otherwise, to comply with its
obligations under this Agreement with respect to preventing unauthorized
use, copying, modification or other distribution of the kServer Portal
Edition, and the protection and security with respect to the provisions
of this Agreement.
7.08 SmartSources covenants and agrees to not disclose any information it
receives concerning the business of Everdream without Everdream's
specific written consent, or unless such information becomes publicly
available through no action of SmartSources. SmartSources shall take
appropriate action with its employees, by agreement or otherwise, to
satisfy its obligations under this sub-paragraph.
8. TERMINATION
8.01 This Agreement may be terminated prior to the expiration of the term
hereof as follows:
(a) The failure by Everdream to pay any amounts due hereunder, where
such failure is not fully corrected within 14 days of written
notice by SmartSources to Everdream;
(b) The failure or neglect of a party (the "breaching party") to
observe, keep, or perform any of the covenants, terms and
conditions hereunder, where such non-performance is not fully
corrected by the breaching party within 30 days of written notice
by the non-breaching party to the breaching party;
8.02 Immediately upon any termination of the License herein granted for any
reason, Everdream shall:
(a) immediately cease using the kServer Portal Edition, or any part
thereof, in any manner whatsoever;
(b) return or immediately destroy, or cause to be destroyed, all
copies, backups and versions of the kServer Portal Edition
licensed herein;
(c) immediately return to SmartSources all material and documentation
provided with, generated by or descriptive of the kServer Portal
Edition including, without limitation, user manuals, object code
listings, source code listing, machine code translations,
functional specifications, screen dumps or reproductions,
and
(d) forthwith furnish to SmartSources a certificate in form and
substance satisfactory to SmartSources certifying to the
destruction of the kServer Portal Edition licensed herein and the
return of all material and documentation.
9. GENERAL
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9.01 Any notice, request, demand consent or other communication
provided or permitted hereunder shall be in writing and delivered to the
party whose address and facsimile number for the receipt of such document
is as follows.
(a) If to SmartSources:
Delivery: SmartSources Technologies Inc.
#2030 Marine Drive, Suite 100
North Vancouver, British Columbia
V7P 1V7 CANADA
Facsimile: (604) 688-2375
(b) If to Everdream:
Delivery: Everdream CORPORATION
1288 Pear Ave.
Mountain View, CA 94043
U.S.A.
Facsimile: (419) 791-3978
or to such other address for delivery or facsimile as a party may, in
writing, direct. Any notice so given shall be deemed to have been
received on the date it was delivered or transmitted.
9.02 This Agreement shall be governed in all respects by the laws of the State
of California, and any dispute thereunder shall be subject to the
exclusive jurisdiction of the State of California.
9.03 Time is hereby expressly made of the essence with respect to the
performance of the parties of their respective obligations under this
Agreement.
9.04 SmartSources shall not be held responsible, nor shall SmartSources be
considered in breach of this Agreement, for the failure of SmartSources
to fulfill any terms or provisions hereof if such failure was a result of
civil disorder, war, governmental decrees or laws, acts of enemies,
strikes, floods, acts of God, or by any other cause not within the
control of SmartSources and which could not have been prevented by
SmartSources exercising reasonable diligence.
9.05 Everdream shall not be held responsible, nor shall Everdream be
considered in breach of this Agreement, for the failure of Everdream to
fulfill any terms or provisions hereof if such failure was a result of
civil disorder, war, governmental decrees or laws, acts of enemies,
strikes, floods, acts of God, or by any other cause not within the
control of Everdream and which could not have been prevented by Everdream
exercising reasonable diligence.
9.06 The parties hereto hereby covenant and acknowledge that the provisions of
this Agreement with respect to confidentiality and other protection set
forth in this Agreement shall survive the termination of the LICENSE
granted herein.
9.07 No omission or delay of either party hereto in requiring due and punctual
fulfillment by the other party of the obligations of such party hereunder
shall be deemed to constitute a waiver of its right to require due and
punctual fulfillment, or a waiver of any of its remedies hereunder.
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9.08 The parties hereto are independent, and neither party is the agent, joint
venture, partner or employee of the other and no party shall be able to
bind the other party.
9.09 The parties covenant and agree to make all applications, execute all other
deeds, documents, instruments and assurances, and do such further and other
acts as may be necessary or desirable to carry out the true intent and
meaning of this Agreement, and to give full effect to the transactions
contemplated or intended hereby.
9.10 This Agreement shall ensure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
9.11 Headings and Captions are for the purposes of convenience only, and are not
to be construed as part of this Agreement.
9.12 Terms of computer terminology which are not otherwise defined herein shall
have the meanings normally attributed thereto in the computer terminology,
data processing and computer industries, unless the context of the use of
such terminology would suggest otherwise.
9.13 This Agreement constitutes the entire Agreement of the parties with respect
to the subject matter hereof, into which all prior negotiation, commitment,
representations and undertakings of the parties are merged and, except as
herein specifically provided, there are no oral or written understandings
or agreements between the parties hereto relating to the subject matter
hereof.
9.14 No amendment or other modification of this Agreement shall be valid or
binding on either party hereto, unless in writing and executed by the
parties hereto.
9.15 This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but such counterpart
together shall constitute but one and the same instrument.
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EXECUTED by the parties hereto as of the day and year first above written.
BY SmartSources.com Technologies, Inc.:
/s/ Nathan Nifco CEO
------------------------------ ------------------------------
Authorized Signature Title
Nathan Nifco December 8th, 1999
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Name Date
By Everdream Corporation
/s/ Kevin Thompson VP Business Development
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Authorized Signature Title
Kevin Thompson Dec. 13, 1999
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Name Date
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SCHEDULE "A"
PERFORMANCE STANDARDS
-- 5 concurrent page views with a worst-case 2 second response time.
-- 250,000 page views per day.
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SCHEDULE "B"
REQUIREMENTS SPECIFICATIONS
1. Customization of look and feel of the start page. SmartSources will
implement everdream's style templates into the aesthetics of the portal page.
Deliverable due December 15th, 1999
2. Preemptive personalization to create a user portal start page. SmartSources
will integrate the user information gathered in everdream's e-commerce order
process into the portal.
Specifically:
2.1 Users will be pre-registered in the portal.
2.2 Address information will be used in order to provide approximate
weather reports.
2.3 Directions -- the user's shipping address will be used as the start
address for directions.
2.4 User's birthday will be mapped to any relevant module.
2.5 User's zip code will pre-select one sports team from the NFL, NHL,
NBA, college football, and college basketball.
Module list:
-- Bookmark
-- Calculator
-- Census maps
-- Content manager
-- DNS
-- Directory search
-- Discussion boards
-- Domain search
-- E-mail
-- Horoscopes
-- Package tracker
-- Shopping
-- Stocks
-- iSyndicate News (syndicated from over 50 sources)
-- Streetmaps
-- Weather
-- Yellow pages
Deliverable due: January 30, 2000
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SCHEDULE "C"
SYSTEM REQUIREMENTS
-- Minimum CPU Pentium III including a mirroring fault tolerance server non
concurrently outputting pages.
-- 1 Gigabyte of RAM
-- Minimum of 9 Gigabytes of Hard disk space
-- Minimum access to ORACLE Database 8.0
-- NT Operating System
-- Servlet engine
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