EXHIBIT 99.7
LICENSE AGREEMENT
LICENSE AGREEMENT (the "Agreement") made as of this 3rd day of August, 2000
(the "Effective Date"), between Magnitude Network, Inc., a Delaware corporation
("Magnitude"), and Globalmedia.Com., a Nevada corporation ("Globalmedia").
Magnitude and Globalmedia are each referred to herein as a "Party" and
collectively as the "Parties."
WHEREAS, Globalmedia has purchased certain software (the "Software") from
Magnitude, pursuant to that certain Asset Purchase Agreement, by and between
Globalmedia and Magnitude; and
WHEREAS, Globalmedia desires to grant to Magnitude certain licenses for the
purpose of using the Software;
NOW THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Globalmedia and Magnitude hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" means a person or entity more than 20% owned by a Party, any
person or business entity which owns more than 20% of a Party, or any person or
business entity that is more than 20% owned by a business entity that owns more
than 20% of a Party.
"Documentation" means all end user and system documentation, manuals, flow
charts, program listings, programmers' notes, error logs, diagnostic reports,
benchmark results and similar materials describing or relating to the Software,
or their operation or performance.
"Globalmedia Technology" means, collectively, the Software and
Documentation.
"Intellectual Property Rights" means all world wide patent, copyright,
trademark, trade secret, mask work and other industrial and intellectual
property rights, whether arising under statute or common-law and including all
applications for registration and registrations of such rights and all renewals,
reissuances and extensions thereof.
"Modifications" means all updates, upgrades, corrections, bug fixes,
revisions, modifications, new functions, new features, new versions and other
improvements of any kind to the Software and all modifications and updates to
Documentation.
"Object Code Form" means a form of software code resulting from the
translation or processing of software in Source Code Form by a computer into
machine language or intermediate code, which thus is in a form that would not be
convenient to human understanding of the program.
"Software" has the meaning specified in the above recitals, and for greater
specificity means the software programs listed on Exhibit A attached hereto.
"Source Code Form" means a form in which a computer program's logic is
easily deduced by a human being with skill in the art, such as a printed listing
of the program or a form from which a printed listing can be easily generated.
2. LICENSE GRANT
Subject as expressly set out herein, Globalmedia hereby grants, under all
of Globalmedia's Intellectual Property rights in the Globalmedia Technology, to
Magnitude, a worldwide, royalty-free, sub-licensable right and license to use,
modify, distribute, exploit and copy the Software in Object Code Form and Source
Code Form and related Documentation and create derivative works of all of the
foregoing, for any and all purposes. Such license does not include a license for
Magnitude to use, modify, distribute, exploit or copy any Modifications
conceived, created or developed by Globalmedia or any party on behalf of
Globalmedia. Magnitude is solely responsible for and shall promptly pay all
sales, value-added, goods and services and other similar taxes that become
payable by Magnitude as a result of the granting of this license.
3. DELIVERY OF SOFTWARE
Globalmedia represents that one (1) copy of the Software, in Source
Code Form and Object Code Form, and all related Documentation, have been
delivered to Magnitude on the Effective Date in the form delivered to
Globalmedia by Magnitude. To the extent that the above license includes a
license of trademark rights, Magnitude shall at all times follow Globalmedia's
reasonable directions as to quality control in relation to the Software used in
association with such trademarks. Magnitude shall at all times upon receipt of
prior reasonable notice, permit Globalmedia with access to Magnitude's business
premises and samples of all Magnitude marketing and advertising materials
bearing any Globalmedia trademarks used in association with the Software, to
permit Globalmedia to ensure that Magnitude is complying Globalmedia's
reasonable quality control standards. All goodwill generated by Magnitude's use
of such trademarks shall be deemed to inure to the exclusive benefit of
Globalmedia. Globalmedia is under no obligation to provide any services in
respect of the Globalmedia Technology, including any support, maintenance,
de-bugging, error-correction, integration, conversion., training or consulting
services.
4. OWNERSHIP
4.1 Magnitude acknowledges that, as between Magnitude and Globalmedia, the
Globalmedia Technology, all Modifications thereto conceived, created or
developed by or on behalf of Globalmedia ("Globalmedia Modifications") and all
Intellectual Property Rights therein are and shall remain the exclusive property
of Globalmedia or its Affiliates. All copies of the Globalmedia Technology
distributed by Magnitude shall bear such reasonable and customary copyright,
trademark and other proprietary notices indicating Globalmedia's ownership as
directed by Globalmedia from time to time.
4.2 Globalmedia acknowledges and agrees that, subject to Globalmedia's
ownership of the underlying Globalmedia Technology, all Globalmedia
Modifications and all Intellectual Property Rights therein, all Magnitude
products, whether or not the Software is integrated into or combined with them,
all Modifications conceived, created or developed by or on behalf of Magnitude,
all derivative works of the Globalmedia Technology created or developed by or on
behalf of Magnitude and all Intellectual Property Rights therein ("Magnitude
Products") are, shall be and shall remain the property of Magnitude. Globalmedia
understands that Magnitude Products may include, among other things,
functionality similar to the functionality of the Software. Based on this
understanding, Globalmedia agrees that such functional similarity shall not form
the basis for any claim that Globalmedia has any ownership interest in or to
such Magnitude Products.
5. NO WARRANTIES
5.1 AS GLOBALMEDIA HAS ACQUIRED THE GLOBALMEDIA TECHNOLOGY FROM MAGNITUDE,
GLOBALMEDIA MAKES NO WARRANTIES OR CONDITIONS OF ANY KIND ABOUT THE GLOBALMEDIA
TECHNOLOGY TO MAGNITUDE, ANY MAGNITUDE AFFILIATE OR ANY OTHER PARTY. WITHOUT
LIMITING THE FOREGOING GLOBALMEDIA HEREBY DISCLAIMS ALL WARRANTIES AND
CONDITIONS WITH RESPECT TO THE GLOBALMEDIA TECHNOLOGY AND ALL MODIFICATIONS,
INCLUDING ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRRANTIES OR CONDITIONS OF
OWNERSHIP, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS,
FUNCTIONALITY, DURABILITY, MERCHANTABLILITY, FITNESS FOR A PARTICULAR OR ANY
PURPOSE OR ARISING AS A RESULT OF USAGE OR COURSE OF TRADE. GLOBALMEDIA DOES NOT
WARRANT OR REPRESENT THAT THE SOFTWARE OR ANY MODIFICATIONS WILL OPERATE
UNINTERRUPTED OR ERROR-FREE.
5.2 GLOBALMEDIA SHALL NOT BE LIABLE TO MAGNITUDE, ANY MAGNITUDE AFFILIATE
OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL,EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST BUSINESS, LOST REVENUES,
LOST PROFITS OR LOST DATA, IN CONNECTION WITH THE USE, INABILITY TO USE OR
MALFUNCTION OF THE GLOBALMEDIA TECHNOLOGY OR ANY MODIFICATIONS.
5.3 Notwithstanding anything in this Agreement, the maximum aggregate
liability of Globalmedia to Magnitude, any Magnitude Affiliate and any other
third party for any action or cause of action arising out of this Agreement or
otherwise in connection with the Globalmedia Technology and any Modifications,
whether based in contract, including fundamental breach, tort, including
negligence, for infringement of Intellectual Property Rights, or any other legal
theory, shall in no event exceed the sum of $100.00 (U.S. Funds). Magnitude
acknowledges that Globalmedia is only willing to enter into this Agreement and
to purchase the Globalmedia Technology from Magnitude on the basis that
Magnitude is willing to be bound by the exclusions and limitations of liability
set out herein, all of which shall survive the termination of this Agreement for
any reason whatsoever.
6. TERM AND TERMINATION
The term of this Agreement shall commence on the Effective Date, and,
unless earlier terminated, shall terminate automatically on the ninety-ninth
anniversary of the Effective Date. Globalmedia may not terminate this Agreement
without cause. Without limiting the foregoing, "cause" permitting Globalmedia to
terminate this Agreement shall include: (a) Magnitude breaching a material term
of this Agreement and failing to remedy such material breach within 30 business
days of being notified by Globalmedia of such breach where such notice specifies
that this Agreement will be terminated if such breach is not cured within such
time period; or (b) if an Affiliate to whom Magnitude assigns this Agreement
pursuant to Section 8.2 hereof (the "Assignee"), becomes insolvent or bankrupt,
seeks protection from its creditors under any applicable legislation, ceases
carrying on business, if an order winding up the business of the Assignee is
made, or if the Assignee resolves to wind up its business. Immediately upon
termination of this Agreement for any reason, Magnitude shall cease all further
use and copying of the Globalmedia Technology and shall deliver up to
Globalmedia and/or delete from its files and/or destroy, all copies of the
Globalmedia Technology then in the possession or control of Magnitude, any
Magnitude Affiliates and those persons that Magnitude is legally responsible
for.
7. INDEMNIFICATION
Magnitude shall promptly notify Globalmedia in writing if Magnitude becomes
aware of any actual or potential infringement of the Globalmedia Technology by
any third party or of any actual or potential infringement by the Globalmedia
Technology of any third party rights. In either such case, Magnitude shall take
no steps to defend, prosecute, settle or compromise any such matter without the
express prior written consent of Globalmedia. Globalmedia shall have no
obligation to defend, prosecute or settle any such action; however Magnitude may
defend, prosecute or settle such action if Globalmedia fails to do so within
twenty (20) days of Globalmedia's receipt of Magnitude's written request for
Globalmedia to take such action. Globalmedia shall have no obligation to
indemnify Magnitude for any damage, cost, loss or expense, including legal fees
and disbursements, suffered or incurred by Magnitude, any Magnitude Affiliate or
any other party as a result of any such matter. Magnitude shall fully defend and
save harmless Globalmedia from and against all damage, cost, loss and expense,
including all reasonable legal fees and disbursements invoiced to Globalmedia on
an ongoing basis, suffered or incurred by Globalmedia as aresult of (a) any
claim by any Magnitude Affiliate or any other party arising out of the use,
inability to use or malfunction of the Globalmedia Technology, where such
Affiliate or other person has contracted with Magnitude to use the Globalmedia
Technology or for Magnitude to provide any service based on or utilizing the
Globalmedia Technology or (b) Magnitude defending, prosecuting or settling any
action relating to the Globalmedia Technology.
8. MISCELLANEOUS
8.1 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
8.2 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. Magnitude may not assign this Agreement or any of its rights,
interests, covenants or obligations hereunder without the express prior written
consent of Globalmedia; provided, however, that Magnitude may assign this
Agreement in full to any Magnitude Affiliate (including without limitation, an
assignment to a Magnitude Affiliate in connection with the distribution of
assets of Magnitude), without the prior written consent of Globalmedia, provided
that in such case, Magnitude shall provide written notice of such transaction to
Globalmedia as soon as reasonably practical, such Affiliate shall promptly
execute and deliver such documentation reasonably required by Globalmedia to
evidence its being bound by the terms and conditions set out herein and
Magnitude shall continue to be bound by all of its covenants and obligations set
out herein notwithstanding any such assignment until such time as the
Affilliate, in the reasonable opinion of Globalmedia, has sufficient financial
resources to fulfill all of its obligations under this Agreement. Any other
purported assignment of this Agreement shall be null and void and shall
constitute a material breach of this Agreement by Magnitude.
8.3 Counterparts and Electronic Means. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Delivery of an
executed copy of this Agreement by electronic facsimile transmission or other
means of electronic communication capable of producing a printed copy shall be
deemed to be execution and delivery of this Agreement as of the Effective Date.
8.4 Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.5 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered if
delivered in person or by means evidenced by a delivery receipt, in each case to
the intended recipient as set forth below:
If to Magnitude: with a copy to:
Magnitude Corporation CMGI, Inc.
c/o iCAST Corporation 100 Brickstone Square
78 Dragon Court Andover, MA USA 01810
Woburn, MA 01801 Attn: General Counsel
Attention: Chief Financial Officer
Tel: (978) 684-3600
Tel: (781) 994-4100 Fax: (978) 684-3601
Fax: (781) 994-0700
If to Globalmedia: with a copy to:
Globalmedia.Com Clark, Wilson
400 Robson Street 800-885 West Georgia Street,
Vancouver, B.C., Canada Vancouver, B.C., Canada,
V6A 3A6 V6C 3H1
Attn: Chief Financial Officer Attn: David Cowan, Esq.
Tel: (604) 688-9994 Tel: (604) 687-5700
Fax: (604) 688-9996 Fax: (604) 687-6314
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of laws of any jurisdiction other than those of the Commonwealth of
Massachusetts. Any dispute arising out of or in connection with this Agreement
shall be referred exclusively to the federal or state court in Suffolk County,
Massachusetts. Each Party hereby irrevocably consents to the jurisdiction of
such courts and waives any objection which it might have with respect thereto.
8.7 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by both
Parties. No waiver by a Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
8.8 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
8.9 Confidentiality. Magnitude acknowledges that the Globalmedia Technology
and all Globalmedia Modifications represent proprietary, confidential and trade
secret information of Globalmedia for which Globalmedia has paid significant,
valuable consideration to Magnitude. Accordingly, Magnitude shall not disclose
to any party other than an Magnitude Affiliate, any information relating to the
Globalmedia Technology and the Globalmedia Modifications (collectively the
"Confidential Information" and shall not reproduce any Confidential Information
or use any Confidential Information other than for the express purpose of
exercising the license granted herein on the terms permitted herein, all without
the express prior written consent of Globalmedia. Any disclosure that is
permitted hereunder shall be pursuant to a written non-disclosure agreement
containing provisions at least as restrictive as those set out in this Section
8.9. Magnitude shall be directly liable to Globalmedia in the event of any
unauthorized, reproduction, disclosure or use by any such disclosee of the
Confidential Information. Magnitude recognizes that a breach by Magnitude of any
of its covenants herein would result in irreparable harm to Globalmedia and that
Globalmedia could not adequately be compensated for such harm by monetary award.
Accordingly, in the event of any such breach or threatened breach, in addition
to all other remedies available to Globalmedia at law or in equity, Globalmedia
shall be entitled, as a matter of right, to apply to a court of competent
equitable jurisdiction for such relief by way of restraining order, injunction,
decree or otherwise, as may be appropriate to ensure compliance by Magnitude
with the provisions of this Agreement without the necessity of proving actual
damage to Globalmedia. Upon termination of this Agreement for any reason,
Magnitude shall immediately deliver up to Globalmedia or destroy all copies of
any Confidential Information then in the possession or control of Magnitude, any
Magnitude Affiliate and any other party that Magnitude is legally responsible
for and Magnitude shall not retain any Confidential Information in any form or
media. For the purpose of this Agreement "Confidential Information" does not
include information that: (1) is, at the time of disclosure, publicly available
or subsequently becomes publicly available (other than as a result of a breach
of this Agreement by Magnitude), or (2) information that Magnitude can prove,
through written records, was lawfully obtained by it from other persons who are
not themselves obligated to keep such information confidential or did not impose
any nondisclosure obligations on Magnitude with respect to such information, or
(3) is independently developed by Magnitude without reference to any
Confidential Information, or (4) is required to be disclosed by Magnitude to
comply with applicable laws or governmental regulations, in which case Magnitude
shall take reasonable and lawful actions to minimize the extent of such
disclosure.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
MAGNITUDE NETWORK, INC.
By: /s/ Todd I. Schmidt
--------------------------
Name: Todd I. Schmidt
Title: President
GLOBALMEDIA.COM
By: /s/ Winston Barta
-------------------------
Name: Winston Barta
Title: Executive V.P.
Signature Page to License Agreement between Magnitude Network, Inc. and
Globalmedia.com dated as of August 3, 2000.
EXHIBIT A
Magnitude
Network, Inc.
Software
Prepared:
7/20/00
Application Description:
- --------------------------------------------------------------------------------
Now Playing Application which displays, in real-time, the song and artist
information for what is on a specific radio station; tied into
station's automation system
- --------------------------------------------------------------------------------
MagBox, v 1.0 Equipment and software for streaming audio (over a T-1)
directly from a radio station's soundboard over the Internet;
required on-location engineer setup and configuration, offered
limited connections
MagBox, v 2.0 Equipment and software for streaming audio directly from a
radio station's soundboard over the Internet; required no
engineer visit (plug-and-play); complete remote administration;
offers unlimited connections; self-monitoring system
prevented any signal outages
MagBox, v 3.0 Research upgraded hardware/software to improve sound quality;
added both Windows Media Technology and RealAudio support; wrote
stream "keep-alive" scripts to auto-reboot encoders under
Windows NT
- --------------------------------------------------------------------------------
Store, v 1.0 On-line music and movies store, basic order functionality and
outsourced fulfillment
Store, v 2.0 "Facelift" to old store offered improved user interface,
product features by station, product couponing by station,
Consumer order tracking system
Store, v 3.0 Behind-the scenes re-design of entire application, offering
automatic EDI ordering; customer email status updates;
newsletters; support for multiple fulfillment houses;
"custom" stores for individual radio stations
Store, v 4.0 Create branded store with advanced functionality; complete
discography; "smart cart"; "wish list"; couponing; complete
re-design of user interface; product pricing by station;
personalized store; automated financial systems; and sound
samples
- --------------------------------------------------------------------------------
Website admin
system, v 1.0 Individualized administrative system for website content update
Website admin
system, v 2.0 Combined administrative system for all website content update;
also functionality for tracking website activity
Website admin
system, v 3.0 Completely modular website system; list of website "objects"
that can be added to any part of website; centralized
administration; improved user interface; on-line help files
- --------------------------------------------------------------------------------
Radio Events
Audio Streaming Completely self-contained equipment and configured software
for streaming live events on-location for minimal cost;
offering unlimited connections; no on-site engineer necessary
(plug-and-play)
- --------------------------------------------------------------------------------
Browser-based
player Create embedded player to provide branding opportunities to
sponsors and radio stations.
- --------------------------------------------------------------------------------
Web Site
Traffic Data
Application, v 1.0 Custom web visiting measurement and reporting application by
"hits," page views, and unique visitors
Web Site Traffic
Data Application,
v 2.0 Created new GUI for web visiting measurement and reporting
application by "hits," page views, and unique visitors
- --------------------------------------------------------------------------------
Custom Page
Creation
Application, v 1.0 Customized web page and graphics auto-creation tools built on
Cold Fusion platform allowing radio stations to create new
pages with text and graphics without knowing HTML
Custom Page
Creation
Application, v 2.0 New custom web page and graphics tools to replace limited
tools built on Cold Fusion platform and expand ability of
radio station staffs to create pages without knowing HTML
- --------------------------------------------------------------------------------
Radio Message Custom administrative application enabling radio station staff
Board to edit or delete messages posted on web site message board
Application v1.0 page
Radio Message Custom administrative application enabling radio station staff to
Board edit or delete messages posted on web site message board page
Application v
2.0
- --------------------------------------------------------------------------------
Radio Contest
Application v1.0 Custom administrative application enabling radio station staff
to create contests using text, graphics, and e-mail entry forms
without knowing HTML
- --------------------------------------------------------------------------------
Integrated Playlist
Application Custom administrative application enabling radio station staff
to create playlists of station's music and link song titles to
purchase of CDs without knowing HTML
- --------------------------------------------------------------------------------
"Hotlinks" Custom administrative application enabling radio station staff to
Application create text descriptions and links to favorite or featured web
sites without knowing HTML
- --------------------------------------------------------------------------------
Radio Events Custom administrative application enabling radio station staff to
and Remotes edit events and post schedules of air talent appearances without
Application knowing HTML