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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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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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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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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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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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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1.6
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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REPRESENTATIONS, WARRANTIES AND
COVENANTS.
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Licensor hereby
represents, warrants and covenants to Licensee that:
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Licensor is an
entity duly organized, validly existing and in good standing under
the laws of the State of Nevada 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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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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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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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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Licensor has no
contractual commitment that may prevent or interfere with the
performance of Licensor's obligations under this
Agreement.
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