Exhibit 10.27
SOFTWARE LICENSE AND DOMAIN NAME ASSIGNMENT AGREEMENT
THIS AGREEMENT is made and entered into effective this 24th day of
April , 2000 by and between United Internet Technologies, Inc. a Delaware
corporation, having a principal place of business at 1990 Westwood Boulevard,
Los Angeles, California (hereinafter referred to as "LICENSOR"), and
netcruise.com, inc., a New Jersey corporation, having a principal place of
business at 2401 Morris Avenue, Union, New Jersey (hereinafter referred to as
"LICENSEE").
RECITALS
1. LICENSOR has designed, developed and/or acquired rights in certain
computer software and technology, which software and technology is described
more fully in Appendix "A" attached hereto and by this reference, incorporated
herein. Hereinafter said software and technology is referred to as the "LICENSED
SOFTWARE. In addition, LICENSOR is the owner of one or more domain names which
include the term "netcruise."
2. LICENSEE desires an exclusive license to use the LICENSED SOFTWARE
in connection with Travel Related Applications as defined below, and LICENSOR is
willing to grant such license, subject to the terms and conditions hereinafter
set forth. Further, LICENSEE desires to be the owner of domain names which
include the term "netcruise" and LICENSOR is willing to assign such domain names
to LICENSEE.
3. LICENSEE acknowledges LICENSOR's proprietary rights and interest in
the LICENSED SOFTWARE, and is willing to accept the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth hereinbelow, LICENSOR and LICENSEE hereby agree as follows:
1. License Grant:
--------------
(a) LICENSOR hereby grants to LICENSEE, for the term hereof, an
exclusive, even as to LICENSOR, non-transferable, worldwide except for Europe
and the United Kingdom, fully paid up license to use for Travel Related
Applications as defined below the LICENSED SOFTWARE delivered to it by LICENSOR
hereunder, to create videos distributed on CD-ROM which run inside a standalone
window comprising the items identified in Appendix "A." Expressly excluded from
this grant is the right to use the LICENSED SOFTWARE to create videos which may
be embedded within a window which contains web page data in addition to a
created video, or which utilizes any of LICENSOR's technology other than that
which was used to create the Sample PAV files identified in Appendix A. As to
Europe and the United Kingdom, this grant is non-exclusive. This grant does not
provide LICENSEE with any right to sub-license or otherwise transfer any of the
rights granted herein.
(b) "Use" or "use" as used herein in connection with LICENSED SOFTWARE
means (i) entering any portion of the LICENSED SOFTWARE from storage units or
media into a computer; (ii) running any portion of the LICENSED SOFTWARE in the
course of operating or supporting the operation of a computer; and (iii) making
copies of the LICENSED SOFTWARE for internal use as needed, for safekeeping
(archival) and for backup purposes, but not for distribution to others, except
for the UL Player which may be copied and distributed to others on an
unrestricted basis. Notwithstanding LICENSEE's right to copy and distribute the
UL Player, it is understood and agreed that LICENSOR retains all ownership of
the copyright and technology contained in the UL Player. Under no circumstances
may LICENSEE make modifications to the LICENSED SOFTWARE.
2. Definition of Travel Related Applications: For purposes of the
license granted hereunder, Travel Related Applications means using the LICENSED
SOFTWARE to develop CD-ROMs with video files and audio files showing and
describing food, lodging, transportation and travel arrangements and travel
destinations for use by customers to assist them in making decisions as to
transportation destinations and lodging for business and personal travelling,
which CD-ROMs are for use in conjunction with an Internet based web site. All
other uses of the LICENSED SOFTWARE by LICENSEE are outside the scope of the
license grant and are strictly prohibited. Further, even with respect to Travel
Related Applications, LICENSEE is prohibited from using the LICENSED SOFTWARE to
develop a CD-ROM which contains video files which include any form of
pornography or sexually explicit "adult entertainment.".
3. Term: The term of this Agreement shall commence as of the effective
date of this Agreement, and shall continue indefinitely, unless
earlier terminated pursuant to Paragraph 11 hereinbelow.
4. Delivery: LICENSOR shall undertake delivery to LICENSEE of the
LICENSED SOFTWARE within ten (10) days of execution of this Agreement, except
for the Updates referred to in Appendix "A" which will be delivered in the
ordinary course of business after they become available.
5. Title: Except for distributed copies of the UL Player, all copies of
the LICENSED SOFTWARE shall be and remain the tangible property of LICENSOR.
With respect to the proprietary rights and copyrights in the LICENSED SOFTWARE,
LICENSEE also acknowledges LICENSOR's sole ownership of all rights, title and
interests therein. Further, LICENSEE acknowledges and agrees that it has no
claim, right, title, property or interest of any kind or nature whatsoever in
the LICENSED SOFTWARE, except for the limited license granted herein.
6. Notices and Legends: LICENSEE shall include and reproduce
appropriate notices and legends, as prescribed by LICENSOR, on all
copies of the LICENSED SOFTWARE made by LICENSEE hereunder. The
initial copyright notice shall be in the following form:
(C) 1999 and name of copyright owner*
ALL RIGHTS RESERVED
*(to be specified by LICENSOR upon execution of this Agreement)
7. Confidentiality; Security: LICENSEE acknowledges and agrees that all
knowledge, information and material that it may receive hereunder comprising or
concerning the LICENSED SOFTWARE is and shall be received as secret and
confidential and proprietary information (hereinafter referred to as
"Confidential Information"). LICENSEE shall hold such Confidential Information
in strict confidence, except for the uses permitted herein, and shall not
disclose it to others, nor permit others to use it in any way, commercially or
otherwise, and shall not allow any unauthorized person access to it, either
before or after termination of this Agreement, without the prior written consent
of LICENSOR. LICENSEE shall take all actions reasonably necessary to protect the
confidentiality of the Confidential Information, including without limitation,
protecting it as it protects its own corporate proprietary information of a
similar nature and limiting the disclosure of the Confidential Information to
employees or consultants with a bona fide need to know the same, who have been
advised of the confidential nature thereof and are under an express obligation
to maintain such confidentiality. The obligations of this Paragraph shall not
extend to any item which (i) now or hereafter may be in the public domain as a
result of acts not attributable to LICENSEE; (ii) was in the possession of or
known to LICENSEE prior its receipt from LICENSOR as evidenced by tangible
records; or (iii) is required to be produced by LICENSEE pursuant to a court or
governmental order.
8. Disclaimers Of Warranty: LICENSOR LICENSES THE LICENSED SOFTWARE TO
LICENSEE HEREUNDER SOLELY ON AN "AS IS" BASIS. LICENSOR MAKES NO WARRANTIES,
EITHER EXPRESSED OR IMPLIED, REGARDING SAID SOFTWARE, ITS MERCHANTABILITY OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE. However, LICENSOR does represent and warrant
that the LICENSED SOFTWARE will operate to enable LICENSEE to create files of
the type identified in Appendix A as Sample PAV and Sample ULI files and to
otherwise substantially perform the functions of ULI File Editor Rev. 2.51 and
PAV Encrypter Rev. 2.51 in the hardware and software environments identified and
described in Appendix A. While the LICENSED SOFTWARE may operate in other
hardware and software environments, this representation and warranty does not
extend to such other environments. Moreover, neither party shall be liable to
the other for any indirect, special or consequential damages, such as lost
profits, regardless of the cause of action, or for any loss, cost or expense
incurred by the other arising from or related to (i) the operation, use,
performance, or failure to perform of the LICENSED SOFTWARE; or (ii) any claim
or demand on the other by any third party. With regards to this disclaimer, in
the event of any claim or demand on LICENSOR by any third party, LICENSEE shall
fully protect, indemnify and hold harmless LICENSOR from and against any and all
costs, expenses, liabilities, or claims of whatsoever nature or kind of any
injury or damage, including consequential damages, asserted by such third party.
9. Unauthorized Reproduction Or Use: LICENSEE agrees to indemnify
LICENSOR and hold it harmless from any and all claims, liabilities, losses,
costs, expenses or damages incurred by LICENSOR as a result of or arising from
any unauthorized reproduction or use of the LICENSED SOFTWARE by LICENSEE, or
any other breach of this agreement.
10. Default: If either party is in breach of any of the terms,
conditions, representations or warranties contained herein, the non-breaching
party shall have the right to notify the breaching party of such default and of
the non-breaching party's intention to terminate this Agreement or bring action
for enforcement of this Agreement unless such default is corrected by the
breaching party within one month from the date of such written notice. If such
default is not corrected within said one month, the non-breaching party shall be
entitled, without prejudice to any of its other rights under this Agreement or
bring action for encorcement of this Agreement , to terminate this Agreement at
any time thereafter by sending a written notice to the breaching party to take
effect immediately. In addition, in the event LICENSEE files a petition for
bankruptcy or one is filed against it by a creditor which is not dismissed
within 60 days of that filing, exercises an assignment for the benefit of
creditors, goes into liquidation or has a receiver or a trustee appointed for
the benefit of creditors, whether voluntary or otherwise, LICENSOR shall be
entitled to terminate this Agreement by sending written notice of such
termination to LICENSEE. Termination of this Agreement shall be understood to
include, without limitation, the termination of all licenses granted hereunder.
11. Termination Rights: Upon termination of this Agreement, LICENSEE
shall immediately return to LICENSOR or erase, at LICENSOR's option, all copies
of the LICENSED SOFTWARE. In the event LICENSOR elects to have LICENSEE erase
the copies, LICENSEE agrees to erase each such copy in its entirety, and upon
LICENSOR's written request, certify to LICENSOR, in writing, that such erasure
has been completed. In addition, upon termination of this Agreement, all rights
granted hereunder to reproduce and use the LICENSED SOFTWARE shall revert
immediately to LICENSOR.
12. Assignment of Domain Names: LICENSOR shall undertake all acts
reasonably necessary to promptly assign all domain names which it owns which
include the term "netcruise" to LICENSEE within ten (10) days from the date of
execution of this agreement. However, it is understood that since there are
third parties involved, it may take longer than ten (10) days for such
assignment to take effect.
13. Waiver: Waiver by LICENSOR of any specific default or breach of
this Agreement by LICENSEE shall not be deemed to be a waiver of any
other or subsequent default or breach.
14. Notice: Notices for the LICENSEE should be delivered or addressed
as follows:
Netcruise.com, Inc.,
2401 Morris Avenue, Union,
New Jersey 07683,
Attn: Lawrence Burk, President, Fax No. (908) 810-8769,
with a copy to
William J. Davis, Esq.,
Scheichet & Davis, P.C.,
505 Park Avenue, 20th Floor, New York, NY 10022, Fax No. (212) 371-7634
If to LICENSOR:
United Internet Technologies, Inc.
1990 Westwood Boulevard
Los Angeles, California 90025
Attn: Sonja Mikic, CEO, Fax No. (310) 441-4903,
with a copy to:
Richman, Mann, Chizever, Phillips & Duboff
9601 Wilshire Boulevard, Penthouse
Beverly Hills, CA 90210
Attn: Gerald M. Chizever, Esq., Fax No (310) 274-2831
Any notice or other communication given under this Agreement shall be
in writing and personally delivered, faxed (with the transmission of such fax
confirmed by a fax transmission report) or mailed by certified mail, or by
Federal Express or US Postal Express Mail service, postage prepaid, sent to the
party to whom it is given at the address set forth immediately above, or such
other address as any party hereto may direct by written notice given in
accordance with these provisions. Notices shall not be deemed to have been given
until received at the address or facsimile number to which they are sent.
15. Right to Inspect: LICENSEE agrees that it will permit a
representative or representatives of LICENSOR to visit and inspect the premises
where the LICENSED SOFTWARE is kept and/or used, during ordinary business hours,
for the limited purpose of observing and verifying LICENSEE's compliance with
the terms and conditions of this Agreement, and subject to such representative
signing an appropriate non-disclosure agreement to protect LICENSEE's
proprietary information. Request for such visit shall be by written request.
LICENSEE further agrees to make available to such representative or
representatives, all information reasonably required for the accomplishment of
the foregoing purposes and to otherwise cooperate with him or them toward such
end. In addition, LICENSEE shall provide to LICENSOR a copy of each CD-ROM it
creates for distribution to third parties at least five business days prior to
such distribution and, at the same time, the URL of all web pages which contain
links to the files on each CD-ROM. LICENSOR understands and agrees that the
audio and video content of each such CD-ROM is owned by LICENSEE or by a party
who has granted to LICENSEE the right to reproduce such content and that
LICENSOR has no right to reproduce or modify such audio and/or video content.
16. Remedies; Attorneys' Fees: LICENSEE acknowledges and agrees that
LICENSOR would not have an adequate remedy at law in the event that disclosure
of any or all of the LICENSED SOFTWARE, or use thereof not in accordance with
the provisions of this Agreement, is threatened, and that injunctive relief to
prevent such disclosure or misappropriation should be obtainable by LICENSOR. If
any legal action or proceeding is brought for the enforcement of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding in
addition to any other relief to which it may be entitled, if so awarded by the
Court.
17. Disclaimer of Legal Association: This Agreement shall not be
construed as creating a partnership between the parties or to create any other
form of legal association which would impose liability upon one party for the
act or failure to act of the other party. Moreover, all costs, expenses and
taxes, if any, incurred by LICENSEE in connection with its use and reproduction
of the LICENSED SOFTWARE shall be its sole responsibility.
18. Complete Understanding; Modification: This Agreement constitutes
the full and complete understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior negotiations,
understanding and agreements. Any waiver, modification or amendment of any
provisions of this Agreement shall be effective only if in writing and signed by
the parties hereto.
19. Governing Law: This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
20. Successors; Non-Assignment: All of the terms, provisions and
conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their representatives, heirs, successors, trustees,
transferees, lawful assigns and legal representatives. Neither this Agreement,
nor any right granted herein, is assignable, even to a wholly owned subsidiary
of LICENSEE, by LICENSEE without the prior written consent of LICENSOR. Any
attempt to assign any said rights, or to delegate the duties or obligations
imposed on LICENSEE by this Agreement, without LICENSOR's prior written consent,
which consent shall not be unreasonably withheld, shall be void. LICENSOR may
assign any and all of its rights, or delegate any and all of its the duties or
obligations under this Agreement without first obtaining LICENSEE's consent
21. Representation: The parties each acknowledge that there are no
representations or warranties, expressed or implied, relied upon by
any party as an inducement to entering into this Agreement except as
expressly stated herein.
22. Validity: In the event that any of the terms of this Agreement are
in conflict with any rule of law or statutory provision, or otherwise
unenforceable under the laws or regulation of the federal or any state
government, or subdivision thereof, such terms shall be deemed stricken from
this Agreement, but such invalidity or unenforceability shall not invalidate any
of the other terms of this Agreement, and this Agreement shall continue in force
and effect. To the extent possible, a likely valid provision which meets the
objective of the invalid provision shall be substituted for any invalid
provision hereto.
23. Export License: The LICENSED SOFTWARE may fall within the group of
"strategic" electronic products or technical data that are wholly or partly of
U.S. origin or technology, the export of which are subject to export license
control by the U.S. Government. Prior to exportation of the LICENSED SOFTWARE,
if any, LICENSEE agrees to obtain any licenses which may be required under the
applicable laws of the United States, including the Export Administration Act
and Regulations. The obligations of LICENSEE pursuant to this paragraph shall
survive and continue after any termination of rights under this Agreement.
24. Construction: This Agreement and the provisions hereof shall not
be construed for or against either party by virtue of the fact that it
was proposed by that party and/or drafted by that party's attorney.
25. Headings: The Article and Paragraph headings used herein are for
convenience only and shall not be deemed to be substantive, or to affect in any
way the language or meaning of the provisions to which they refer; nor shall
such headings be construed to broaden or narrow such provisions.
26. Binding Effect: This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
legal representatives.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the date(s) set forth below.
United Internet Technologies, Inc.
Dated: April 24, 2000 /s/ Sonia Mikic
---------------
Name: Sonya Mikic
Title: Chief Executive Officer
netcruise.com, inc.
Dated: April 24, 2000 /s/ Lawrence E. Burk
-------------------
Name: Lawrence E. Burk
Title: President & CEO
<PAGE>
APPENDIX A
Licensed Software
1. UL Player Rev. 2.51 executable and related files
2. ULI File Editor Rev. 2.51 executable for editing ULI trigger files
3. PAV Encrypter Rev. 2.51 executable to convert MPEG files to video
files which can only be played using UL Player
4. Sample ULI files
5. Sample PAV files
6. Available documentation for the above Updates to the above as
generally released by LICENSOR to all or substantially all of its
Licensees
Functional Description of Licensed Software and System Requirements
1) ULI Player v2.51
This application is used by the end-user of distributed PAV media to read PAV
files on the distributed PAV media and play the audio and video content of such
files. It is to be distributed with every CD that includes PAV files. It is
known to work with Internet Explorer and Netscape Navigator/Communicator
versions 3.0 and above. It has been tested on several hundred configurations and
is known to work with most video and audio cards.
System Requirements:
Microsoft Windows 95 or 98
Microsoft IE3.0 or higher, Netscape v3.0 or higher Intel Pentium 166Mhz or
above. 16 MB of free RAM and 50MB of free hard disk space. Compatible sound and
video card.
2) ULI Editor v2.51
This application allows Netcruise developers to create the .uli files that are
sent to the browser client and are read by the ULI Player. These files include
the name of the video file and associated information. This application is known
to work on clean Windows 98 systems, i.e., without any third party software with
the exception of the ULI Editor.
System Requirements:
Standard Windows 98
64 Megabytes of RAM
5MB free disk space for application + additional space as needed for output
files.
3) PAV Encoder v2.51
This application allows Netcruise developers to convert standard MPEG1 files
into PAV files that cannot be read by regular MPEG players. It provides the
encryption key that is to be entered into the ULI Editor when the developer
creates a ULI file. This application is known to work on clean Windows 98
systems without other applications with the exception of the PAV Encoder.
System Requirements:
Standard Windows 98
64 Megabytes of RAM
5MB free disk space for application + space for MPEG input files and PAV output
files.
