Attached files
| file | filename |
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| 8-K - ZURVITA HOLDINGS, INC. - Zurvita Holdings, Inc. | zurvita_8k-100909.htm |
| EX-10.1 - SECURITIES PURCHASE AGREEMENT - Zurvita Holdings, Inc. | zurvita_8k-ex1001.htm |
| EX-10.3 - PROMISSORY NOTE - Zurvita Holdings, Inc. | zurvita_8k-ex1003.htm |
Exhibit
10.2
LICENSE
AND MARKETING AGREEMENT
THIS LICENSE AND MARKETING
AGREEMENT ("Agreement”) is entered into as of October 9, 2009
(the "Effective Date") between OmniReliant Holdings, Inc. (“Licensor”) and Zurvita
Holdings, Inc (“Licensee”).
WHEREAS, Licensor owns the
exclusive rights to the LocalAdLink Software, along with rights to the name,
trademark and source codes (the "Product");
WHEREAS, Licensee was founded
to be a marketer and seller of certain products through the use of independent
sales representatives
WHEREAS, Licensor and Licensee
now desire to enter into this Agreement, whereby Licensor will grant to Licensee
rights and licenses in and to the Product;
WHEREAS, furthermore Licensor
will grant Licensee the right to market and sell the Product through the use of
its independent sales representatives
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth in this
Agreement, the receipt, adequacy and legal sufficiency of which Licensor and
Licensee hereby acknowledge, the parties hereby agree as follows:
1. LICENSE AND MARKETING
GRANT.
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1.1.
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LICENSE
GRANT. Subject to the terms and conditions of this Agreement, Licensor
hereby grants to Licensee the perpetual right and license, under all
intellectual property rights applicable to the Product, to access, use,
execute, display, market, and sell the Product to the Customer (the
“License”). In consideration for this perpetual License,
Licensee will pay to the Licensor, royalty payments of $2.00 per
customer/user for a period of twenty four (24) months, commencing ninety
(90) days from the date Licensee runs its first ad of the
Product. Notwithstanding the foregoing, the Licensee shall not
pay commissions to Licensor in excess of an aggregate of Two Million
Dollars ($2,000,000) during the first two (2) years of this
Agreement
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1.2
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MARKETING
GRANT. Licensee will market and sell the product through its
independent sales representatives (the “Marketing Grant”). As
further consideration for the Marketing Grant, the Licensee shall issue
and deliver to the Licensor, on the date hereof, a promissory note in the
principal amount of Two Million Dollars ($2,000,000), payable three (3)
years from the date of issuance.
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1.3
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RESTRICTIONS.
Except as expressly permitted under this Agreement, Licensee shall not,
without the prior consent of Licensor, (a) use the Product to violate any
law or regulation, or facilitate the violation of any law or regulation,
(b) modify, decompile, disassemble or reverse engineer the Product, (c)
sublicense the Product to any third party; (d) sell the Product to any
third party or (e) make any representations, warranties or commitments
that are, or purport to be, binding on the
Licensor.
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1.4
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OWNERSHIP.
Licensor shall retain all right, title and interest (including copyright
and other proprietary or intellectual property rights as well as URL
rights) in and to the Product and any and all derivative works,
modifications or enhancements thereto. Without in any manner
limiting the foregoing, Licensor shall retain all right, title and
interest in and to the source code, development code/programming language,
functions and features developed by Licensor that are now, or may in the
future, be, integrated into the Product or may, in the future, be used to
enhance the Product subsequent to the Effective Date or improve the
management of processes associated with the
Product..
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1.5
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LIMITATION
ON LICENSOR. Licensor acknowledges and agrees that the rights and license
granted pursuant to Section 1.1 constitutes the only licenses with respect
to the Product to be granted by Licensor, except as expressly permitted
herein.
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1
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1.6
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ENHANCEMENTS,
MODIFICATIONS AND CUSTOM DEVELOPMENT. From time to time, subsequent to the
Effective Date, Licensor may in its discretion, make enhancements or
modifications to or perform custom development of the Product, and
Licensor shall make such enhancements, modifications and changes and
undertake such development at its expense Such enhancements,
modifications, changes and developments shall remain the property of the
Licensor.
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1.7.
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CUSTOMER
LISTS. Notwithstanding anything to the contrary herein, all rights to any
lists of customers of any kind developed as a result of any of Licensee's
direct or indirect sales or marketing efforts, including customer support
names and information and such lists maintained by Licensor, shall be and
remain forever the property of Licensee and not Licensor and shall not be
used by Licensor for any purpose without the prior consent of
Licensee. This Section 1.7 shall survive termination of this
Agreement for any reason.
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2
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REPRESENTATIONS,
WARRANTIES AND COVENANTS.
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2.2
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Licensor
hereby represents, warrants and covenants to Licensee
that:
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(a)
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Licensor
is an entity duly organized, validly existing and in good standing under
the laws of the State of Florida and has all powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as each is now being conducted. The Licensor is duly
qualified to do business and is in good standing in all jurisdictions in
which the conduct of its business makes such qualification
necessary.
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(b)
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Licensor
is the lawful owner, free of all debts, encumbrances and claims, of each
of the assets, properties and rights licensed to Licensee hereunder, that
it has the lawful right to license, sell and transfer the same, and that
the same are not subject to any lien or
encumbrance.
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(c)
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Licensor
is duly authorized to execute and deliver this Agreement, to comply with
its terms, and to make the transfers and assignments provided for
herein.
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(d)
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No
portion of the Product contains or will contain any protection feature
designed to prevent its use. This includes, without limitation, any
computer virus, worm, Trojan-horse routine, trap door, time bomb or any
other codes or instructions that may be used to access, modify, delete or
damage Licensee's Product, the Product or any user's computer
system.
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(e)
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Licensor
has no contractual commitment that may prevent or interfere with the
performance of Licensor's obligations under this
Agreement.
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(f)
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Licensor's
development work anticipated to be performed pursuant to this Agreement
will be original, Licensor (through its employees, officers and agents)
will be the sole author thereof, and Licensor will not assign or pledge
any rights thereto, except as otherwise provided or permitted in this
Agreement.
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(g)
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The
Product and the development work performed and to be performed by Licensor
pursuant to this Agreement will not contain any unlawful, libelous or
defamatory matter.
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(h)
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To
the best of Licensor's knowledge and belief, the Products do not infringe
upon or violate the rights, including patent and copyright, of any other
person or entity.
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2.3
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Licensee
hereby represents, warrants and covenants to Licensor
that:
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(a)
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Licensee
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all powers and all
governmental licenses, authorizations, consents and approvals required to
carry on its business as each is now being conducted. The
Licensee is duly qualified to do business and is in good standing in all
jurisdictions in which the conduct of its business makes such
qualification necessary.
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(b)
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The
execution, delivery and performance of this Agreement is within the power
and authority of Licensee and has been authorized by all necessary action,
and requires no action by or in respect of, or filing with, any
governmental authority.
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(c)
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Licensee
has no contractual commitment which may prevent or interfere with the
performance of Licensor’s obligations under this
Agreement.
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3
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PAYMENTS
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In
exchange for the grant of the license and rights contemplated by this Agreement,
Licensee shall pay to the Licensor payments pursuant to the terms of Section 1.1
and Section 1.2.
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TERM
AND TERMINATION.
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4.1.
TERM. The term of this Agreement shall commence on the Effective Date and shall
continue unless earlier terminated in accordance with the terms of
this Article 4.
4.2
TERMINATION RIGHT. This Agreement may be terminated for any reason at any time
by either party on 60 days’ prior notice to the other party. On 30
days’ prior written notice to Licensee, Licensor has the right to terminate this
Agreement if Licensee shall breach any of the terms or provisions of this
Agreement and shall not correct or remedy such breach within 30 days of
notice. Licensor may also terminate this Agreement at any time if
Licensee shall fail to remit any of the payments required under this
Agreement
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5
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MISCELLANEOUS.
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5.1.
Restriction on Use of
Confidential Information: (a) None of the parties hereto shall, during
the term of this Agreement or at any time thereafter, communicate, divulge or
use for the benefit of any other person, persons, partnership, association,
corporation or entity any of another party’s confidential information, knowledge
or know-how, A party hereto shall divulge such information only to such of its
employees, financial advisors and legal representatives as must have access
thereto in order to satisfy its obligations hereunder. All parties shall take
all necessary precautions to ensure that their employees retain such information
in confidence,
(b) Any
and all information, knowledge or know-how concerning the operation, products.
services, procedures, policies, plans, strategies or customers of Licensor
and/or Licensee shall be deemed confidential for purposes of this Agreement:
provided. however, the parties shall not be required to treat any information as
confidential information under this section if such information: (i) was
publicly known at the time it was disclosed or becomes publicly known after
disclosure without breach hereof by the receiving party; (ii) was known by the
receiving party at the time of disclosure or becomes known to it from a part
other than tile disclosing party who has the apparent right to disclose such
information to the receiving party’s knowledge after due injury; (iii) is
independently developed by the receiving party without reliance on the disclosed
confidential information: (iv) is approved for disclosure by the disclosing
party with the disclosing party’s prior written consent; or (v) is disclosed by
the receiving party pursuant to judicial order, requirement of a governmental
agency or other operation of law, provided that the receiving party informs the
disclosing party promptly after receiving notice of its obligation to make such
disclosure. and takes reasonable steps to limit the scope
5.2
INDEMNIFICATION. The Licensee agrees to indemnify Licensor forthwith on demand
and hold Licensor harmless against any and all expenses, damages and losses of
any kind (including reasonable legal fees and costs) incurred by Licensor
in connection with
any claims, actual or threatened, of any kind (including, without limitation,
breach of contract, any claim of trademark or copyright infringement, libel,
defamation, breach of confidentiality, false or misleading advertising or sates
practices) arising from the advertisement and/or any material of the Advertiser
to which users are subjected too and any other contract entered into
for the purchase of the advertised goods or services,
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5.3
GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
the choice of law principles thereof. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York, County of New York for the purpose of any suit, action, proceeding or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such
suit, action or proceeding may be served on each party hereto anywhere in the
world by the same methods as are specified for the giving of notices under this
Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives
any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION
WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
5.4.
ASSIGNMENT. This Agreement shall bind and inure to the benefit of the parties
and their successors, legal representatives, heirs and permitted assigns. This
Agreement is assignable by the Licensor. Except as permitted by this
Agreement, the Licensee may not assign or transfer any of its rights or
obligations hereunder without the prior consent of the Licensor, which consent
shall not be unreasonably withheld or delayed.
5.5.
ENTIRE AGREEMENT. This Agreement and its exhibits constitute the entire
agreement between the parties hereto relating to the subject matter hereof and
supersede all prior oral and written understandings, discussions and agreements
regarding such subject matter. This Agreement may not be amended, modified or
cancelled except by a written instrument executed by the parties.
5.6.
NOTICES. Any notices or other communications required or permitted to be given
or delivered under this Agreement shall, unless otherwise permitted, be in
writing and shall be delivered personally, by courier service, by e-mail, by
facsimile machine (with confirmation in writing to the addresses set forth
below) or by registered or certified mail, return receipt requested, postage
pre-paid, as follows:
If
to Licensor:
OmniReliant
Holdings, Inc.
14375
Myerlake Circle
Clearwater,
FL 33760
Attn:
Paul Morrison
If
to Licensee:
Zurvita
Holdings, Inc.
800
Gessner
Houston,
TX 77024
or to
such other address as a party may designate pursuant to this notice provision.
Any notice given shall be deemed to have been received on the date on which it
is delivered personally, by courier service or by facsimile, or, if mailed, on
the fifth business day following the mailing thereof.
5.8.
SEVERABILITY. Should any provision hereof for any reason be declared invalid or
unenforceable by final and unappealable order of any court of competent
jurisdiction, the remaining portions of this Agreement shall remain in full
force and effect. The waiver of any breach of any term or condition of this
Agreement shall not be deemed a waiver of any other or subsequent breach,
whether of like or different nature.
5.9.
COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument. Execution and delivery of
this Agreement may be evidenced by facsimile transmission.
5.10.
HEADINGS. The headings herein have been provided for convenience of reference
only and shall not affect the meaning or construction of any provision of this
Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
LICENSOR
OmniReliant
Holdings, Inc.
By: /s/ Paul
Morrison
Name: Paul Morrison
Title: Chief Executive Officer
LICENSEE
Zurvita
Holdings, Inc.
By: /s/ Jay
Shafer
Name: Jay
Shafer
Title:
Co-Chief Executive Officer
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