Exhibit 10.1
LICENSE AGREEMENT
DATED FOR REFERENCE THE 18TH DAY OF JUNE, 2009
BETWEEN
LIFESPAN INC.
6490 W. Desert Inn Rd.
Las Vegas NV 89146
(Hereinafter referred to as "Lifespan" or "Licensor")
OF THE FIRST PART,
AND:
CYTTA CORP.
905 Ventura Way, Mill Valley, CA 94941
(Hereinafter referred to as "CYTTA" or "Licensee")
OF THE SECOND PART,
RECITALS
A. Licensor has acquired a combined exclusive license to
manufacture, distribute
and market unique technology, plans, patents, trade secrets,
trademarks, service
marks, know-how and processes (collectively
"proprietary information") for the
manufacture, distribution and marketing of
various telephony based internet
access and computing Products and
services related thereto. The Product
("License Unit(s)" or "Units"), and the Service Package
("License Service(s)")
(collectively "the System" or "Systems"), are as set out in
Schedule A
B. Licensee desires to obtain an exclusive license to
manufacture, market and
distribute the License Units, License
Services and Systems in the USA in all
markets, utilizing Licensor's
System and proprietary
information and
acknowledges that use of such System and its proprietary
information are subject
to controls and restrictions
established by Licensor for the
purpose of
maintaining a high level of uniform quality and goodwill in the
provision, sale
and operation of License Units, License Services and Systems.
In consideration of the mutual covenants set forth
herein, the parties hereby
agree to the following terms and conditions
ARTICLE ONE
DEFINITIONS
As used in this Agreement, the following terms
have the definition set forth
below:
1.1 "Effective Date" means the
earlier of the date on which this License
Agreement has been
executed by the latter of the parties to do so or the
date set out above.
1.2 "Gross Sales" means the total of all sales of,
transacted at, through or
through the use of, the License Unit(s),
License Services(s) and System(s),
whether such sales are
evidenced by check, cash, credit,
exchange of
otherwise, exclusive of sales tax or
other change imposed on sales by any
government authority. "Gross Sales"
also includes all payments to Licensee
from Sub-Licensees from revenues generated
at, through, or through the use
of License Units, License Services, and
Systems.
1.3 "Net Revenue" shall be Gross Sales less all
reasonable expenses permitted
according to generally
accepted accounting principles,
consistently
applied.
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1.3 "Information Package" means the written
technical information prepared by
the Licensor, including
product manufacturing specifications,
operating
manual and other materials, which
set forth the details of the Product and
System.
1.4 "Territory" means the geographic area consisting of the
USA on an exclusive
basis.
1.5 "Trademarks" means those, trademarks, copyrights, service
marks and patents
set forth in the Information Package.
1.6 "Payments" means payments between Licensor
and Licensee as stated in this
License Agreement and shall be made in the
form of U.S. Dollars.
1.7 "Sub Licensees" means persons and entities
who sub-license any or all of
the rights licensed to Licensee by
Licensor under this Agreement.
ARTICLE TWO
GRANT OF EXCLUSIVE LICENSE
2.1 Licensor grants to Licensee a license to
manufacture, sell, distribute,
operate, sub license and market the
License Units, License Services and the
System and to sell, distribute,
sublicense, use and operate the System in
the Territory, all as more
specifically defined in Schedule B (herein the
"Licensee's Market") and the right to
grant Sub-Licenses in connection with
the marketing, sale, distribution,
sublicense, use and operation of License
Units, License Services, and
the System upon the terms and subject to the
provisions of this
Agreement. The grant of the above license
shall be
exclusive in the Territory for the
Licensee's Market.
2.2 Licensor grants to Licensee
a license to use and display Licensor's
Trademarks in the Territory
in connection with the operation of License
Units, License Services and the Systems
and with regard to the Sub-Licenses
granted by Licensee, upon the terms
and subject to the provisions of this
Agreement.
2.3 Licensee shall have the right but not the
obligation to use the trademark
"ScreenPhone," "TaskStation"
"WebTel," "MyWebTel" or "Lifespan" in its
advertisements, its daily operations
and specifically represent and refer
to itself as the
Licensee for the Territory for
"Lifespan Inc" and
"LifespanInc.com."
ARTICLE THREE
SITE LOCATION AND EXCLUSIVE TERRITORY
3.1 The License Units, License Services and the System shall
be manufactured at
such locations as
are chosen by the Licensee, but
such choice of
manufacturer shall require
the Licensee to ensure that all proprietary
aspects of the Product
remain the sole and exclusive property of
the
Licensor. The manufacture and
distribution of the Product shall be located
in or outside of the
Territory at locations ("Site
Locations") to be
selected by Licensee (or
Sub-Licensees) and approved by the Licensor,
subject to subsequent after manufacture
and sale movement.
3.2 Subject to the terms of this Agreement,
Licensor shall not directly or
indirectly sell distribute, use or
operate License Units, License Services
or the System, or license or allow
others to directly or indirectly sell,
distribute, use or operate License
Units, License Services or the System,
within the exclusive Territory, in
the Licensee's Market, during the term
hereof.
ARTICLE FOUR
TRADEMARKS
4.1 Licensee has no right, title or interest in
or to any of the proprietary
information and
Trademarks, except for Licensee's privilege and
license
during the term hereof to display and use
the same. Licensee shall not do
or permit any act or thing to be done in
derogation of any of the rights of
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Licensor in connection with the
Trademarks, whether during the term of this
Agreement or after. Licensee shall use the
Trademarks only for the uses and
in the manner licensed under and as
provided in, this Agreement. During or
after the term of this Agreement,
Licensee shall not in any way dispute or
impugn the validity of the
Trademarks, or the rights of Licensor to them,
or the rights of Licensor or other
licensees of Licensor to use them.
4.2 Licensee may utilize and physically affix
signs containing the Trademarks
at such places within or without the
License Units, License Services, and
the System as shall be
designated by Licensor in its Technical
Manual.
Except as expressly permitted in the
Technical Manual, Licensee shall not
erect or display any
other signs, or display any
other trademarks,
logo-types, symbols or service marks
in, upon, or in connection with the
License Units, License
Services and the System without Licensor's prior
written approval, this excludes off-site
advertising. Upon the termination
of this Agreement for any reason,
Licensee forthwith shall either deliver
and surrender up to
Licensor each and all of the Trademarks,
and any
physical objects bearing or containing any
of the Trademarks; or obliterate
or destroy any
Trademarks in Licensee's possession.
Where required,
Licensee or
Sub-Licensees shall obtain governmental
approval to use
Trademarks, or register
same and shall do so solely in the name of the
Licensor.
4.3 Licensee agrees promptly to notify Licensor
and Licensor agrees to notify
Licensee, in writing, of the institution
of any suit or action or any claim
of infringement against Licensee or
Licensor for infringement based on use
of the Trademarks and proprietary
information.
ARTICLE FIVE
TRAINING
5.0 Licensee shall have the exclusive
obligation and right to train and
otherwise educate all
Sub-Licensees throughout the Territory.
Licensee
shall have the right
to charge Sub-Licensees for said
training and
education.
5.1 Licensor will provide an initial training
program for up to 3 individuals
to be designated by
Licensee, at a time and place to be designated
by
Licensor, so that they will
be trained in the complete operation
and
management of the License Units,
License Services, and the System. These
individuals must sign a
confidentiality agreement approved by Licensor.
This training program shall provide basic
guidance on all aspects of System
implementation and operation.
5.2 At Licensee's expense during the
initial start up period for the initial
License Units, License
Services, and the System shipped to the Territory,
the Licensor shall
provide, if requested by
Licensee, a qualified
representative to train and/or install the
License Units, License Services,
and the System at
the corporate headquarters of
Licensee or at site
locations as deemed appropriate by
Licensor and Licensee.
5.3 The cost of the initial training program
instruction and assistance except
for personal meals,
travel, lodging, and other personal
expenses of
individuals receiving training shall be
paid by the Licensor.
5.4 Should Licensee request additional assistance at site
locations at any time
during the term of this
Agreement following start-up, Licensor
shall
provide a qualified
representative at such times and places as
may be
reasonable necessary and
mutually convenient. Licensee shall pay
all
reasonable personal
expenses, plus $300.00 per day
for each such
representative.
5.5 Licensor shall have the right from time to time to
request Licensee and/or
its manager to attend and complete
additional training courses or programs.
Licensee shall bear the cost of
all expenses of such trainees. Licensor
shall determine the time and place of such
training in its sole discretion,
except that Licensee shall
have the option to have training at Licensee's
headquarters at Licensee's expense.
5.6 Licensor shall make itself available at its
office for consultation and
guidance of Licensee in the operation
and management of the License Units,
License Services and the System.
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5.7 Each party shall be
responsible for obtaining all visas
and other
immigration or travel documents required
for their respective personnel in
the provision of
training and assistance to License pursuant
to this
Article 5.
5.8 During the term of this Agreement, the
Licensor shall provide, software
technical support during normal business
hours at Licensor's expense.
ARTICLE SIX
LICENSOR'S PRODUCT SPECIFICATIONS AND TECHNICAL MANUAL
6.1 Licensor shall provide to Licensee, upon
execution of this agreement, 2
copies of Licensor's Product
specifications and existing Technical Manuals.
At all times the Product
specifications and Technical Manual shall be the
property of the Licensor and may not be
disseminated, duplicated or copied
by Licensee.
6.2 Licensor retains the right to
modify the Product specifications and
Technical Manual at
Licensor's expense. Such modifications
shall be
delivered to Licensee, and become
effective and binding on Licensee 30 days
after delivery thereof to Licensee.
6.3 Licensee agrees to maintain the
confidentiality of the contents of the
Product specifications and Technical
Manual pursuant to Article 18 of this
Agreement. Licensee
shall return to Licensor all copies of the
Product
specifications and Technical
Manual in its possession upon termination or
expiration of this
Agreement. Additionally Licensee may make at its
own
expense any and all
modifications, design changes or
upgrades to the
Product it deems
appropriate, provided that all
modifications, design
changes or upgrades shall become the
property of the Licensor at the end of
the License term.
ARTICLE SEVEN
ADVERTISING
7.1 Licensee shall be responsible for its
own advertising program and shall
bear the cost of same. In the event
that in the future a mutually agreed
advertising program is established a
separate agreement will be executed.
7.2 Licensee shall be responsible for providing the proper on
site advertising.
This advertising shall include but not be
limited to promotional personnel
(at Licensee's
discretion to maximize sales), collateral
material and
brochures.
7.3 Licensee shall have the exclusive right
to initiate and maintain all
advertising relating to its license in all
areas of the Territory.
7.4 Licensor shall furnish to
Licensee all advertising and
promotional
materials or artwork used by Licensor in
its advertising at the best price
Licensor charges to others for such
materials. Further, Licensee and Sub
licensee's shall have the express right to
use for their advertising at the
best price Licensor
charges to others for such materials
all of the
Licensor's copyrighted
materials, promotional materials, patents,
any
brochures, signage,
decals and the like materials.
Licensor shall
immediately make all said
materials available to the Licensee upon the
execution of this Agreement and upon any
change, modification or addition
to materials, including all of the
above listed items. Existing artwork,
brochures, collateral and
promotional material in small quantities (less
than 25 each) will be provided
free of charge. On orders over 25, a best
price shall be given. Licensor at its sole
discretion, shall make available
to Licensee when possible, camera ready
artwork, copy, film and negatives.
7.5 Licensee shall have the
right to charge Sub-Licensees
a fee for
Advertisement.
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ARTICLE EIGHT
GENERAL RESPONSIBILITIES OF LICENSEE
8.1 The site locations utilized by Licensee shall conform to
the specifications
for the Licensed Units,
License Services and System as set out in the
Technical Manual of the Licensor.
8.2 All equipment, fixtures, inventory, and
supplies utilized in connection
with the License Units shall conform to
applicable specifications set forth
in the Technical Manual, and
Licensor shall have the right to inspect such
items during normal business hours
for the purpose of ensuring compliance
with such specifications.
8.3 Licensee shall purchase and, at all times during the term
hereof, maintain
policies of insurance with such
minimum standards, coverages, and limits
(or such additional limits or
types of coverage) as Licensee and Licensor
may from time to time agree is
appropriate to the risks ensuing from the
Licensees use of the Licensed Units,
License Services and System.
8.4 If Licensee has leased the premises for the
License Units: (i) the lease
shall not grant to the
landlord under the lease any
rights against
Licensor, nor agree to any
other term, condition or covenant
that is
inconsistent with any provision of this
Agreement. Licensee shall duly and
timely perform all of the
terms, conditions, covenants and
obligations
imposed under the lease.
8.5 Licensee shall prepare and file all necessary
tax returns, and shall pay
any and all local,
state/provincial and federal/national sales and
use
taxes imposed or incurred, or levied
or assessed by any governmental body,
in connection with any part of this
Agreement, relating to any period prior
to closing date, or any of the
goods and services sold or furnished by
Licensee in connection with the License
Unit or License Services, promptly,
in full, when due, and before any
delinquency.
8.6 Licensee shall not, during the
term hereof and for a period of 2 years
following termination of
this Agreement, engage in any business
which
offers any device products
or services which are competitive with
the
License Unit, either as
a proprietor, partner, investor,
shareholder,
director, officer, employee, principal,
agent, advisor or consultant.
8.7 Licensor may from time to time suggest
prices for the goods and services
offered by Licensee. Licensee and
Licensor agree that the prices suggested
by Licensor are
recommendations only and are not
mandatory. Nothing
contained in this Agreement shall be
deemed a representation or warranty by
Licensor that the use
of Licensee's suggested prices shall
produce,
increase or optimize profits. Licensee
further agrees to grant the Licensor
the ability to acquire Product from
the Licensee at a price equivalent to
the full manufactured cost plus ten
percent (10%).
8.8 Except as provided in Section 8.18 and
Article 13 below, Licensee shall
protect, defend and indemnify
Licensor, its subsidiaries, affiliates and
designees, and shall hold
them harmless, from and against any and
all
costs, expenses
(including attorney's fees and court
costs), losses,
liabilities, damages, claims
and demands of every kind or nature, arising
in any way out of Licensee's operation of
the License Unit.
8.9 Licensee agrees to use all commercially
reasonable efforts to promote the
distribution, sale, and use of the
Product.
8.10 Licensee agrees to maintain a sufficient inventory
of the Product on hand
that it reasonably believes is need
in order to fill anticipated or actual
orders expeditiously at all times during
the course of this Agreement.
GENERAL RESPONSIBILITIES OF LICENSOR:
8.11 Licensor shall provide all
information necessary for Licensee
to
manufacture the License Units,
License Services and the System that comply
with all applicable
specifications as required to operate Licensed Units,
License Services and the
System as intended. Licensor agrees to assist
Licensee to maintain, and to
manufacturer a sufficient inventory of the
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Licensed Units, License
Services and the System on hand in order to fill
actual orders
expeditiously at all times during the
course of this
Agreement.
8.12 Licensor shall be responsible for
furnishing to Licensee all technical
information necessary to manufacture
the License Units, License Services
and the System with the proper
software and hardware programming for the
Licensees described use and agreed upon
specifications. Licensee shall bear
the costs (if any) of any
modification and variations to the
Licensed
Units, License Services and the
System, which are requested by Licensee to
be shipped and used in the Territory.
8.13 Licensor agrees to use all commercially reasonable
efforts to promote the
distribution, sale and use of the Product
through Licensee.
8.14 Licensor agrees to provide Licensee with
all marketing and sales leads
related to the Licensee market,
which they generate, and to fairly devote
its efforts to making Licensee a
successful venture.
8.15 Licensor agrees to assist Licensee in
arranging sufficient management
assistance to pursue the
manufacturing, marketing and distribution of the
Product.
8.16 Licensor agrees to work with the Licensee in the design of all
contemplated
changes in Licensed Unit and
License Services and the System design and
price.
8.17 Licensor agrees to transfer to Licensee all
rights, title and interest in
and to the "use and marketing"
rights to the various new products and
product variations
and applications currently
being developed or
subsequently developed by Licensor, at no
cost.
8.18 Licensor shall protect, defend and indemnify
Licensee, its subsidiaries,
affiliates and designees, and
shall hold them harmless, from and against
any and all costs, expenses
(including attorney's fees and court costs),
losses, liabilities, damages,
claims and demands of every kind or nature,
arising in any way out of the manufacture
or design of the License Unit.
ARTICLE NINE
TERM AND RENEWAL
9.1 Unless sooner terminated in
accordance with the provisions of
this
Agreement, the term of this
Agreement shall commence on the Effective Date
of this Agreement and shall
terminate 10 years thereafter. If applicable
law in the Territory
requires that Licensor give notice to Licensee with
respect to the expiration of the initial
term, this Agreement shall remain
in effect on a month-to-month
basis after the expiration of the initial
term until Licensor has given
Licensee the notice required by applicable
law.
9.2 If Licensee has in all respects complied with
the conditions set forth in
this Article 9.2, Licensee shall have the
right, but not the obligation, to
enter into a Renewal
Agreement for a term commencing on the day
which
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