Exhibit 4.6
OPTION AGREEMENT
AGREEMENT made and entered into this 28th day of June, 2000, by and
between DSI Datotech Systems, Inc., a Vancouver corporation, having its
principal offices at 525 Seymour Street, Suite 712, Vancouver BC, Canada V6B 3H7
("Datotech") and NetFace, LLC, a Connecticut corporation, having its principal
offices at 16 Old Mill Road, Greenwich, Connecticut 06830--3345 ("NetFace").
W I T N E S S E T H:
-------------------
WHEREAS Datotech represents that it is the developer and the owner of
the right title and interest in and to the Technology and Existing Proprietary
Property as hereinafter defined; and
WHEREAS NetFace desires Datotech to disclose the details of the
Technology to NetFace to permit NetFace to evaluate the Technology and to
determine whether NetFace will exercise the Option granted to NetFace hereunder
and enter into an exclusive License Agreement (in the form attached hereto and
made apart hereof as Exhibit A) with Datotech for the Technology, all know-how
related to the Technology and the Existing Proprietary Property;
WHEREAS, Datotech wishes to grant NetFace the sole and exclusive
Option to acquire the exclusive licensing rights for the exploitation of the
developed Technology for Licensed Items within the Territory through the License
Agreement;
NOW THEREFORE, in consideration of the provisions contained herein,
and of the payment of the Option Price, the receipt and sufficiency of which is
hereby acknowledged, the undersigned agree as follows:
ARTICLE 1
Definitions
The following terms used in this Option Agreement shall have the
meanings set forth below:
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(a) "Agreement" shall mean this Option Agreement, entered into on the
date first above written.
(b) "Existing Proprietary Property" shall mean all intellectual
property rights in the Technology, including without limitation, (i) any and all
patent applications filed worldwide based upon the Technology, including any and
all continuations, divisions and continuations-in-part thereof, and all patents,
inventor's certificates, utility models and the like issuing therefrom
worldwide, including any and all re-examinations, reissues, renewals and
extensions thereof, (ii) any copyrightable or copyrighted works based upon the
Technology, including computer software and computer programs, (iii) any
confidential or proprietary know-how and information regarding the Technology,
(iv) any trademarks and trade names associated with the Technology, whether or
not registered, and (v) all fixed representations, hardware, hard copies,
computer--readable media and other tangible implementation of the Technology
(collectively, the "Proprietary Property"), patent rights, copyrights,
trademarks and trade secret rights. "Existing Proprietary Property" shall also
include patent rights in the Technology that are pending as of the date hereof.
(c) "License Agreement" shall mean the License Agreement attached
hereto and made apart hereof as Exhibit A that may be executed by the parties
hereto upon the exercise by NetFace of the Option granted to NetFace hereunder.
(d) "Licensed Items" shall mean the interfaces for personal computer
games, console games and Internet television, in which the Technology may be
utilized pursuant to the execution by the parties herein of the License
Agreement.
(e) "Option" shall mean the sole and exclusive Option of NetFace to
acquire, for the Option Price, the exclusive licensing rights for the
exploitation of the Technology within the Territory through a license agreement.
(f) "Option Period" shall mean the period commencing on the date
hereof and ending eighteen months from the date when a prototype reasonably
acceptable to NetFace is made available by Datotech to NetFace.
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(g) "Option Price" shall mean the amount of $200,000 US Dollars fully
creditable towards any amount which may be owed to Datotech pursuant to the
execution of the License Agreement.
(h) "Prototype" shall mean a device using Datotech Technology that
will demonstrate multi-touch capability as it is applied to playing video games
and operating Internet TV, utilizing a PC system for such a demonstration.
Datotech commits to use its best efforts to make this prototype available at no
charge to NetFace, on a top priority basis, within less than six months from
signing and delivery of this Agreement.
(i) "Technology" shall mean Datotech's proprietary gesture recognition
technology ("GRT") system comprising multiple-touch sensors and related
hardware, gesture recognition algorithms and software, and user interface
designs for mapping gestures to control electronic devices, as well as
alterations, improvements, modifications and derivatives to the Technology
described herein, as well as all related software, documentation and other
materials, embodying GRT theretofore or hereafter created or developed by
Datotech.
(j) "Territory" shall mean al major markets worldwide.
(k) "Third-Party Licenses" shall mean sub-licenses granted by NetFace
to third parties pursuant to the license and rights granted to NetFace by
Datotech in accordance with the License Agreement. "Third-Party Licensees" shall
mean those parties to whom Third-Party Licenses are granted in accordance with
the License Agreement.
ARTICLE 2
Datotech Obligations
2.1 Research and Development. Datotech shall conduct research and
development of the Technology with the ultimate goal of developing the
Technology and Existing Proprietary Property for the Licensed Items and
otherwise maximize the commercial value of the Technology and Existing
Proprietary Property for the Licensed Items.
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2.2 Disclosure of Improvements. From time to time throughout the
duration of this Option, Datotech shall disclose any and all improvements to the
Technology for Licensed Items to NetFace so as to keep NetFace as current as is
practicable regarding the Technology. Datotech shall also disclose any and all
improvements to the Technology for Licensed Items to prospective Third-Party
Licensees as well as participate in meetings and presentations with prospective
Third-Party Licensees to demonstrate the feasibility of integrating the
Technology into the Licensed Items. Datotech shall cooperate with NetFace and
prospective Third-Party Licensees by providing, at no cost, all required
disclosures and assistance in order to demonstrate the feasibility of
integrating the Technology into the Licensed Items, including but not limited
to, hardware and software for demonstrations and simulations. Such disclosures
shall be in a form and manner to be agreed upon by the parties on &case-by-case
basis. Datotech and NetFace shall each bear their own expenses resulting from
such meetings, presentations or any disclosures required pursuant to this
Section 2.2.
2.3 Maintenance of Existing Proprietary Property. During the term of
- -------------------------------------------- this Agreement Datotech shall
utilize its best efforts to maintain all Existing Proprietary Property in valid
force and effect.
ARTICLE 3
NetFace Obligations
3.1 No Obligation to Exercise Option. NetFace has a genuine interest
- -------------------------------- in commercializing the Technology but shall not
be obligated to exercise the Option granted hereunder and may refuse to execute
the License Agreement.
3.2 Confidentiality. NetFace shall have an affirmative duty of
confidentiality regarding all confidential information provided to it by
Datotech hereunder. Such obligation shall survive the termination of this
Agreement and the License Agreement for a period of two (2) years. Moreover,
NetFace acknowledges and agrees that, because of the nature of the property
rights involved under this Agreement and the License Agreement, any breach of
NetFace's obligations under this Section 3.2 shall cause immediate, irreparable
injury to Datotech; therefore, NetFace agrees and acknowledges that Datotech
shall be entitled, in addition to its other rights and remedies at law and in
equity, to seek temporary, preliminary and/or permanent
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injunctions in the event an unauthorized disclosure is made or appears to be
imminent.
ARTICLE 4
Grant of option
4.1 NetFace Option. Datotech hereby grants NetFace the sole and
exclusive Option, for the Option Period to acquire the exclusive rights to
exploit the Technology, the Existing Proprietary Property, and any proprietary
property related to the Technology conceived pursuant to this Agreement within
the Territory for Licensed Items through an exclusive license agreement in the
form attached hereto as Exhibit A.
ARTICLE 5
Consideration for Option
5.1 Consideration. In consideration of the option granted to NetFace
hereunder, NetFace shall pay Datotech the amount of $200,000 US Dollars, which
shall be fully creditable towards any amounts due Datotech under the License
Agreement. Said $200,000 US Dollars shall be due and payable as follows:
$100,000 US Dollars upon execution and delivery of this Option Agreement and
$100,000 US Dollars upon delivery of a reasonably acceptable Prototype to
NetFace. Upon the exercise by NetFace of the Option granted hereunder and the
signing of the License Agreement, NetFace shall pay Datotech the amount of $5
Million US Dollars less the above amount of $200,000 US Dollars paid to Datotech
within the terms of this Agreement, in addition to the granting by NetFace to
Datotech a twenty percent (20%) Class B Membership Interest in NetFace; said
20%interest may be diluted only after a) an IPO for Netface has been
successfully concluded or b) a period of three years has elapsed following the
date of execution of the Licensing Agreement, which ever occurs first. Datotech
shall acquire such Membership Interest by signing a copy of the NetFace
Operating Agreement at the time of execution of the Licensing Agreement, thereby
agreeing to be bound by its provisions.
ARTICLE 6
Term and termination
6.1 Term. The term of this Agreement shall be for the duration of the ----
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Option Period unless otherwise terminated as provided herein.
6.2 Termination. Any exercise of the right of termination hereunder
shall not impose any liability upon the terminating party nor waive any other
rights that the terminating party has or may have. This Agreement may be
terminated, in whole or in part, at the option of the party having such right as
below provided, by written notice upon the occurrence of any of the following
events:
(a) by either party in the event the other party is
adjudicated bankrupt, or if a receiver or trustee is appointed for such party or
for a substantial portion of its assets, or if any assignment is made for the
benefit of creditors;
(b) by Datotech in the event NetFace elects not to exercise
the option granted hereunder and not to proceed with negotiations for the
execution of the License Agreement.
ARTICLE 7
Miscellaneous
7.1 No Third Party Beneficiaries. There shall be no third party
----------------------------
beneficiaries to this Agreement.
7.2 Assignability. This Agreement shall not be assignable by either
party in whole or in part except upon the written and signed consent of the
other party which shall not be unreasonably withheld.
7.3 Binding Effect. Subject to the restrictions on assignability
contained herein, this Agreement shall be binding upon and inure to the benefit
of the parties and their respective authorized successors and assigns.
7.4 Governing Law. This Agreement shall be governed by and construed
- ------------- in accordance with the laws of British Columbia, Canada.
7.5 Notices. All notices, requests or consents provided for or
-------
permitted under this Agreement must be in writing and must be given either by
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mail addressed to the recipient, postage paid, registered or certified mail
return receipt requested, or by delivering the writing to the recipient in
person, by courier or by facsimile transmission. Such a writing so delivered
shall be effective upon receipt.
7.6 Headings. Headings are used in this Agreement for the purpose of
organization only and do not constitute terms of the Agreement. The words
"herein," "hereof "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless otherwise
expressly indicated.
7.7 Severability. If any provision of this Agreement or its
application to any person or circumstance shall be invalid, illegal, or
unenforceable to any extent, the remainder of this Agreement and its application
shall not be affected and shall be enforceable to the fullest extent permitted
by law unless the provision held to be illegal, invalid or unenforceable is so
fundamental to the sense of this Agreement that its illegality, invalidity or
unenforceability would make the enforceability of the remainder unreasonable.
7.8 Entire Agreement. This Agreement sets forth the entire, final and
exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and contemporaneous writings and
discussions between the parties pertaining hereto.
7.9 No Oral Modifications. This Agreement may be amended or modified
- --------------------- only by a written instrument signed by proper and duly
authorized representatives of both parties.
7.10 Counterparts. This Agreement may be executed in any number of
- ------------ counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument .
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In witness whereof the parties hereto have entered into this Agreement
on the date first above written.
DSI DATOTECH SYSTEMS INC.
By: /s/Edward C. Pardiak
Name: EDWARD C. PARDIAK
Title: CHAIRMAN
NETFACE, LLC
By: /s/ Gerard E. Munera
Name: GERARD E. MUNERA
Title: MANAGING PARTNER
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Exhibit A to Option Agreement
EXCLUSIVE LICENSE AGREEMENT
AGREEMENT made this ____ day of _____, 2001, by and between DSI
Datotech Systems, Inc., a Vancouver corporation, having its principal offices at
525 Seymour Street, Suite 712, Vancouver BC, Canada V6B 3H7 (hereinafter
referred to as the "Licensor" or "Datotech"), and NetFace, LLC, a Connecticut
corporation, having its principal offices at 16 Old Mill Road, Greenwich,
Connecticut 06830--3345 (hereinafter referred to as the "Licensee" or
"NetFace.")
WITNESSETH :
----------
WHEREAS, Datotech is the owner of the Technology and Existing
Proprietary Property as hereinafter defined;
WHEREAS, pursuant to the Option Agreement dated as of June 28th, 2000,
by and between Datotech and NetFace (the "Option Agreement"), NetFace was
granted the option to enter into an exclusive license agreement to acquire the
exclusive rights to exploit the Technology and the Existing Proprietary Property
for Licensed Items within the Territory as hereinafter defined; an
WHEREAS, as of the date hereof, NetFace has exercised the option
granted to NetFace pursuant to the Option Agreement and has paid the Option
Price (as defined in the Option Agreement) to Datotech;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration from each to the other, the
receipt and sufficiency of which is hereby acknowledged by both parties, it is
hereby agreed as follows:
ARTICLE 1
Definitions
1.1 Definitions. The following terms used in this License Agreement
- ----------- (the "Agreement") shall have the meanings set forth below: (a)
"Existing Proprietary Property" shall mean all intellectual property rights in
the Technology, including without limitation, (i) any and all patent
applications filed worldwide based upon the Technology, including any and all
continuations, divisions and continuations-in-part thereof, and all patents,
inventor's certificates, utility models and the like issuing therefrom
worldwide, including any and all re-examinations, reissues, renewals and
extensions thereof, (ii) any copyrightable or copyrighted works based upon the
Technology, including computer software and computer programs, (iii) any
confidential or proprietary know-how and information regarding the Technology,
1
(iv) any trademarks and trade names associated with the Technology, whether or
not registered, and (v) all fixed representations, hard copies, hardware,
computer-readable media and other tangible implementation of the Technology
(collectively, the "Proprietary Property"), patent rights, copyrights,
trademarks and trade secret rights. "Existing Proprietary Property" shall also
include patent rights in the Technology that are pending as of the date hereof.
(b) "License Agreement" shall mean this License Agreement by and between
Datotech, as Licensor, and NetFace, as Licensee.
(c) "Licensed Items" shall mean the interface for personal
computer games, console games and Internet Television, in which the technology
might be utilized pursuant to the execution by the parties herein of this
License Agreement.
(d) "Option Agreement" has the meaning set forth in the second recital
hereof.
(e) "purchase Price" shall mean $5 Million US dollars payable by
NetFace to Datotech upon the signing of this Agreement, less the above amount of
$200,000 US Dollars paid to Datotech within the terms of the Option Agreement,
in addition to the granting by NetFace to Datotech a twenty percent (20%) Class
B Membership Interest in NetFace; said 20%interest may be diluted only after a)
an IPO for Netface has been successfully concluded or b) a period of three years
has elapsed following the date of execution of the Licensing Agreement, which
ever occurs first. Datotech shall acquire such Membership Interest by signing a
copy of the NetFace Operating Agreement at the time of execution of the
Licensing Agreement, thereby agreeing to be bound by its provisions.
(f) "Technology" shall mean Datotech's proprietary gesture
recognition technology ("GRT") system comprising multiple-touch
sensors and related hardware, gesture recognition algorithms and
software, and user interface designs for mapping gestures to control
electronic devices, as well as alterations, improvements,
modifications and derivatives to the Technology described herein as
well as all related software, documentation and other materials,
embodying GRT heretofore or hereafter created or developed by
Datotech.
(g) "Territory" shall mean all major markets worldwide.
(h) "Third-Party Licenses" shall mean sub--licenses granted by NetFace to
third parties pursuant to the licenses and rights granted to NetFace by Datotech
in accordance with this Agreement. "Third--Party Licensees" shall mean those
parties to whom Third--Party Licensees are granted pursuant hereto.
ARTICLE 2
License Grant
2.1 License to Exercise Rights. In consideration of the payment to
- --------------------------
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Datotech of the Purchase Price, Datotech hereby grants to NetFace the perpetual,
royalty-free, sole and exclusive divisible and assignable license to
commercially exploit the Technology and the rights constituting the Existing
Proprietary Property for the Licensed Items subject to all of the terms,
conditions and restrictions contained in this Agreement. The rights granted
hereunder include, without limitation, the marketing, use, sale and distribution
of the Technology and the rights constituting the Existing proprietary Property
for Licensed Items.
2.2 Authority to Sublicense. Subject to all of the terms, conditions
and restrictions contained herein, Datotech hereby grants NetFace the authority
to sublicense the exercise of the rights specified in Section 2.1 above.
Datotech will play an active role in all negotiations for sublicensing
agreements.
2.3. Reservations. Datotech retains all rights except those granted
- ------------ above in sections 2.1 and 2.2. Without limiting the generality of
the foregoing sentence, Datotech retains title to the Technology and the
Existing Proprietary Property.
ARTICLE 3
Improvements
3.1 Datotech Improvements. NetFace acknowledges and agrees that
Datotech shall retain exclusive ownership of any and all improvements to the
Technology during the term of this Agreement as well as after this Agreement is
terminated regardless of the cause or method of termination.
3.2 NetFace Improvements. Datotech acknowledges and agrees that
NetFace shall retain ownership of any and all improvements made by Netface.
Datotech also acknowledges and agrees that NetFace shall retain exclusive
ownership of such improvements after the termination of this Agreement
regardless of the cause or method of termination.
ARTICLE 4
NetFace Rights and Obligations
4.1 Confidentiality of Disclosures to Third Parties. NetFace may
disclose any portion of the Technology, the Existing Proprietary Property, and
the improvements to a third party only pursuant to a written agreement between
NetFace and any third-party, approved by Datotech, obligating such third party
to secrecy regarding the disclosure. NetFace acknowledges and agrees that,
because of the nature of the property rights involved in this Agreement, any
breach of NetFace's obligations under this Section 4.1 shall cause immediate,
irreparable injury to Datotech; therefore, NetFace agrees and acknowledges that
Datotech shall be entitled, in addition to its other rights and remedies at law
and in equity, to seek temporary, preliminary and/or permanent injunctions in
the event an unauthorized disclosure is made or appears to be
3
imminent. NetFace's duty of confidentiality shall survive the termination of
this Agreement regardless of the cause or method of termination.
4.2 Disclosure of Improvements. From time to time, throughout the
duration of this Agreement, Datotech shall be affirmatively obligated to
disclose the nature of any and all improvements to the Technology for Licensed
Items to NetFace so as to keep NetFace as current as is practicable regarding
the Technology. Datotech shall also disclose any and all improvements to the
Technology for Licensed Items to prospective Third-Party Licensees as well as
participate in meetings and presentations with prospective Third-Party Licensees
to assist in the integration of the Technology into the Licensed Items. Datotech
shall cooperate with NetFace and prospective Third-- Party Licensees by
providing, at no cost, all required disclosures and assistance in order to
integrate the Technology into the Licensed Items, including but not limited to,
hardware and software for demonstrations and simulations. The form of such
disclosures shall be decided by mutual agreement between the parties on a
case--by-case basis. Datotech and NetFace shall each bear their own expenses
resulting from such meetings, presentations or any disclosures required pursuant
to this Section 4.2. The costs of any subsequent development by Datotech at
NetFace request of any hardware and software for a specific application shall be
borne by NetFace.
4.3 Reporting. NetFace shall provide to Datotech written reports on an
annual basis, no later than March lst of the subsequent year. Such reports shall
detail NetFace's exploitation, licensing and sublicensing activities and shall
include a report of all related revenues received and expenses incurred for the
same quarter. Such reports shall also (a) detail NetFace's intellectual property
protection activities and expenses under Section 6.1 hereof for the immediately
preceding quarter; (b) include a status report on the condition of all worldwide
intellectual property rights related to the Technology; and (c) include a report
of all strategy and planning for intellectual property protection activities for
the upcoming quarter.
ARTICLE 5
Datotech Rights and Obligations
5.1 Rights to Licensed Items Technology Datotech represents, warrants
and covenants that Datotech is the owner of the Existing proprietary Property
and has the exclusive right and license for the use of the Technology together
with the right to sub-license to others, manufacture, distribute and sell the
Technology in connection with the Licensed Items. Datotech shall provide all
disclosures and assistance to NetFace and Third--Party Licensees, at no cost, in
order to integrate the Technology into the licensed Items.
5.2 Rights of first refusal for other items and/or technologies.
Datotech hereby grants to NetFace upon the signing of this Licensing Agreement,
a sixty (60) day right of first refusal for the licensing of any item and/or
technology not included in the present agreement and that Datotech intends to
license to a third party, with the exception of "banking and
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financial transactions" . If NetFace does not exercise its right of first
refusal within sixty (60) days of written notice to Datotech of the terms on
which it proposes to license such item and/or technology to a third party, and
if Datotech then licenses such item and/or technology to a third party on the
terms offered to NetFace within six (6) months of the expiration of NetFace's
right of first refusal, then NetFace shall have no right to this item and/or
technology and/or any related technical information, know how, trade secrets,
proprietary business information, engineering information, invention, results of
experiments, testing and/or prototypes.
ARTICLE 6
Protection of Intellectual Property Rights
6.1 Authorization to NetFace to File for Intellectual Property
Protection In the Territory. Subject to the provisions of Section 2.3, Article
4, Section 6.4, Section 7.1 hereof and all of the other terms and conditions
contained herein, NetFace shall have the authority but not the obligation, with
the consent of Datotech, to take actions in the Territory on behalf of Datotech
such as filing patent applications and seeking registrations of copyrights for
the purpose of securing and protecting intellectual property rights for Datotech
in the Technology and the improvements thereto. The authority granted in this
Section 6.1 may not be assigned, delegated or sublicensed. NetFace shall bear
the expense of all of its activities under this Section 6.1 including the
payment of attorney fees, patent issuance and maintenance fees, copyright and
trademark registration fees and other similar fees and expenses where
applicable.
6.2 Actions Not Taken by NetFace. In the event Datotech, in its sole
discretion, deems it necessary or beneficial to take a specific action that
NetFace has not taken somewhere in the Territory to protect or maintain any or
all of the intellectual property rights discussed in Section 6.1 hereof, it may
notify NetFace of its intention in writing. Upon receipt of such notice, NetFace
shall respond to Datotech within fifteen (15) calendar days indicating whether
NetFace chooses to take the action requested. If NetFace fails to respond within
such time period, or if NetFace responds indicating that it chooses not to
undertake the requested action, then in that event Datotech may take the action
independently, bearing the cost of the action. In such case, the intellectual
property right or rights resulting from or saved by Datotech's action, if any,
shall automatically cease to be within the scope of the license rights granted
to NetFace in Sections 2.1 and 2~2 hereof.
6.3 Assistance and cooperation in Protecting Intellectual Property.
Both parties, including their employees and affiliates, shall be obligated to
assist and cooperate with each other in securing the legal protection of any and
all intellectual property rights under Sections 6.1 and 6.2 above.
6.4 Acts or Omissions Harmful to Intellectual Property. NetFace shall
- -------------------------------------------------- take no action, nor shall it
omit to take any action, if the effect of such act or omission would be to harm
any or all of Datotech's then-existing
5
intellectual property rights.
ARTICLE 7
Disclaimers
7.1 No Representations Regarding Technology or Intellectual Property.
Datotech makes no representations about and disclaims all warranties, express or
implied, about the Technology, the Existing Proprietary Property, and any
improvements thereto. Without limiting the generality of the foregoing, Datotech
disclaims any express or implied warranties regarding the following:
(a) the fitness, usefulness, efficiency or profitability of the Technology,
the Existing Proprietary Property, the improvements thereto or any of the rights
granted herein;
(b) the validity or scope of any intellectual property rights; and
(c) that anything made, used or sold based on or deriving
from the Technology or any of the rights licensed herein will be free from
infringement of third party rights.
ARTICLE 9
Tern; Termination for Cause and Survival of Certain Provisions
8.1 Term. The term of this Agreement shall commence on the date hereof
and shall continue indefinitely unless terminated pursuant to the provisions of
this Agreement.
8.2 Termination for Cause. Upon a breach by NetFace of any of its
obligations hereunder, Datotech may terminate this Agreement upon sixty (60)
calendar days advance written notice to NetFace describing the grounds for
termination; however, such termination shall not occur if NetFace conclusively
demonstrates to Datotech's satisfaction before the end of such sixty (60)
calendar days that the breach has been cured.
8.3 Survival The rights and obligations contained in the following
Sections shall survive termination of this Agreement regardless of the method or
timing of its termination: 2.3, 3.1, 3.2, 4.1, 6.3, and 7.1.
8.4 Return of Existing Proprietary Property. If this Agreement shall
be terminated, NetFace shall return to Datotech all technical data, know--how,
confidential information and trade secrets so far as any of them consists of
written materials, prints and other tangible items which either bear a stamp
"confidential" or "confidential information" thereon or are designated in any
other way by Datotech, whether orally or in writing, as confidential
information. For purposes of this Agreement, all Technology as utilized in the
Licensed Items shall be classified as confidential information.
ARTICLE 9
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Miscellaneous
9.1 Assignability. This Agreement shall not be assignable by either
party in whole or in part except upon the written and signed consent of the
other party, which shall not be unreasonably withheld.
9.2 Binding Effect. Subject to the restrictions on assignability
--------------
contained herein, this Agreement is binding on and inure to the benefit of the
parties and their respective authorized successors and assigns.
9.3 Further Assurances. NetFace agrees to execute and deliver any
------------------
additional documents and instruments and perform any additional acts that may
be necessary or appropriate to comply with its obligations hereunder.
9.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Province of British Columbia and of Canada as
to all matters of interpretation, performance, remedies and enforceability. The
parties hereto hereby irrevocably submit to the jurisdiction of the Supreme
Court of British Columbia, Canada, over any action or proceeding arising out of
or relating to this Agreement and hereby irrevocably agree that all claims in
respect to any action or proceeding may be heard and determined in such Supreme
Court. The parties hereto irrevocably consent to the service of any and all
process in any such action or processing by the certified mailing with return
receipt of copies of such process to their address specified in this Agreement.
The parties hereto agree that a final judgment in any such action or proceeding
shall be conclusive and nay be enforced in any other jurisdiction by suit on the
judgment or any other manner provided by law. The parties hereto waive any
objection to venue in such state and any objection to an action or proceeding in
such state on the basis of forum non convenience.
9.5 Notice. All notices, requests or consents provided for or
permitted under this Agreement must be in writing and must be given either by
sending the writing in the mail addressed to the recipient, postage paid,
registered or certified mail, return receipt requested, which shall be effective
upon receipt, or by delivering the writing to the recipient in person, by
courier or by facsimile transmission to the address specified below:
If to the Licensor:
DSI Datotech Systems, Inc.,
525 Seymour Street, Suite 712,
Vancouver BC, Canada V6B 3H7
Attention: ________________, Chairman
With a copy to:
If to the Licensee:
NetFace, LLC
16 Old Mill Road
Greenwich, Connecticut 06830--3345
Attention: Gerard E. Munera
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With a copy to:
David I. Faust, Esq.
Faust Rabbach & Oppenheim, LLP
488 Madison Avenue
New York, New York 10022
9.6 Headings and Certain Words. Headings are used in this Agreement
for the purpose of organization only and do not constitute terms of the
Agreement. The words "herein," "hereof," "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless otherwise expressly indicated.
9.7 Severability. If any provision of this Agreement or its
application to any person or circumstance shall be invalid, illegal, or
unenforceable to any extent, the remainder of this Agreement and its application
shall not be affected and shall be enforceable to the fullest extent permitted
by law unless the provision held to be illegal, invalid or unenforceable is so
fundamental to the sense of this Agreement that its illegality, invalidity or
unenforceability would make the enforceability of the remainder unreasonable.
9.8 Entire Agreement. This Agreement sets forth the entire, final
and exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and contemporaneous writings and
discussions between the parties pertaining hereto.
9.9 No Oral Modification. This Agreement may be amended or modified
- -------------------- only by a written instrument signed by proper and duly
authorized representatives of both parties.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
In witness whereof, the parties have caused this Agreement to be duly
executed on the date first set forth above.
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NETFACE, LLC DATOTECH SYSTEMS INC.
Title: Title:
------------------------- ---------------------------
By: By:
-------------------------- ----------------------------
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