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 .
|
1.1.
|
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
|
|
1.2
|
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.
|
|
1.3
|
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.
|
|
1.4
|
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..
|
|
1.5
|
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.
|
|
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.
|
|
1.7.
|
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.
|
|
2
|
REPRESENTATIONS, WARRANTIES AND
COVENANTS.
|
|
2.2
|
Licensor hereby
represents, warrants and covenants to Licensee that:
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
Licensor has no
contractual commitment that may prevent or interfere with the
performance of Licensor's obligations under this
Agreement.
|
|
|
Licensor's
development work anticipated to be performed pursuant to this
Agreement will be original,
|
|
