MASTER SOFTWARE LICENSING AGREEMENT
THIS Master Software Licensing Agreement (this
“Agreement”), dated April 1, 2007 is entered into by
and between
JOYN Internet Communities Inc. , a corporation organized
under the laws of Canada (the “Licensee”)
AND:
Portlogic Systems Inc., a corporation incorporated under the
laws of Nevada (the “Licensor”)
WHEREAS:
1.
The Licensor is a provider of online portal management
software;
2.
The Licensee is in the business of operating one or more online
interactive community websites or portals and wishes to engage the
services of the Licensor and acquire certain license rights to
facilitate the operation of these websites or portals; and
3.
The Licensor is willing to provide such services and license rights
on the terms and conditions set forth below;
NOW THEREFORE IN CONSIDERATION of the mutual covenants and
agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which is acknowledged
by each party), the Parties, as hereinafter defined, hereby agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 In this Agreement,
“Agreement” means this Agreement, including the
Schedules to this Agreement, as it or they may be amended or
supplemented from time to time, and the expressions
“hereof”, “herein”, “hereto”,
“hereunder”, “hereby” and similar
expressions refer to this Agreement and not to any particular
section or other portion of this Agreement;
“Applicable Taxes” means any federal, state, province,
and local sales, use, value added, excise, duty, tariff and any
other taxes assessed with respect to the Services or Fees payable
under this Agreement, but shall not include taxes based on the
Licensor’s net income;
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“Business Day” means any day except Saturday, Sunday or
any day on which banks are generally not open for business in the
place where the registered office of the Licensor is located;
“Confidential Information” shall have the meaning set
out in Article 5.1 of this Agreement;
“Customer” means any individual Person that has
contracted with or will be contracting with the Licensee or one of
Licensee’s customers to access the Portal Management
Software;
“Customer Information” means personal information
(including names, email addresses, instant messenger
identifications, age, sex, telephone numbers, postal code,
address), descriptions, account balances, transaction histories,
payment information, and any other information provided by or
relating to any Customer;
“Domain Address” means an Internet Protocol
(“IP”) address owned by the Licensee or a Customer that
is used by Customers and the Licensee to access the Portal
Management Software;
“Effective Date” shall have the meaning set out in
Article 10.1 of this Agreement;
“Event of Termination” shall have the meaning set out
in Article 10.2 of this Agreement;
“Fees” means amounts that the Licensee has agreed to
pay the Licensor in consideration for the provision of the
Services, as set forth in Article 4 of this Agreement;
“including” means including without limitation, and
“includes” means includes without limitation;
“Party” and “party” means a party to this
Agreement and any reference to a Party includes its heirs,
executors, administrators, successors and permitted assigns; and
“Parties” means every Party;
“Payment” means the remittance of funds by the Licensee
to the Licensor in accordance with this Agreement;
“Person” is to be broadly interpreted and includes an
individual, a corporation, a partnership, a trust, an
unincorporated organization, the government of a country or any
political subdivision thereof, or any agency or department of any
such government, and the executors, administrators or other legal
representatives of an individual in such capacity;
“Portal Management Software” means all software, HTML
code, web pages, websites, and designs prepared, created, or
integrated by the Licensor under this Agreement for access by the
Licensee and the Customers;
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“Prime Rate” means the rate of interest per annum
quoted by the Bank of America from time to time as its reference
rate for demand loans made in United States Dollars to its
commercial customers in the United States and which it refers to as
its “prime rate”, as such rate may be changed by it
from time to time;
“Services” means one or more of the categories of
services set out in Schedule ‘A’ to this Agreement,
which services are provided by the Licensor to the Licensee;
“Term” means the time during which this Agreement is in
effect, as set out in Article 10.2 of this Agreement; and
ARTICLE 2
SERVICES, DUTIES AND RESPONSIBILITIES
2.1 The Licensor shall provide,
or cause to be provided, to the Licensee the services as more
particularly described in Schedule ‘A’ (collectively
the “Services”). The Licensee acknowledges and agrees
that the scope of the Services provided by the Licensor pursuant to
this Agreement is limited to those services set out in Schedule
‘A’.
2.2 The Licensee hereby agrees to fulfill
all duties set out in Schedule ‘B’.
ARTICLE 3
CONDITIONS OF LICENSE AND OWNERSHIP
3.1 Subject to the terms and conditions of
this Agreement, the Licensor hereby grants to the Licensee, and the
Licensee accepts, a non-transferable right and license to use, for
the Licensee’s business purposes, the Portal Management
Software developed by the Licensor in accordance with the terms of
this Agreement . Notwithstanding the previous sentence, the
Licensee has the right to permit access to the Portal Management
Software by the Customers. The Licensee’s rights shall at all
times be subject to the use restrictions and copyright restrictions
contained in this Agreement and required by law.
3.2 The Portal Management Software owned by
the Licensor for use by the Licensee in connection with this
Agreement, and any and all copyrights, trade secret rights,
trademark rights, patent rights and all other intellectual and
industrial property rights of any nature throughout the world
relating to the Portal Management Software, including all web page
designs, graphics, sounds, HTML code, and software provided by the
Licensor under this Agreement and any copies thereof, and all
documentation, code and logic that describes, comprises or is
integrated into the Portal Management Software, shall be the sole
property of the Licensor. The Portal Management Software source
code and executable code shall not be accessible by the Licensee or
the Customers and the Licensee is not permitted to download any
source code and executable code relating to the Portal Management
Software or permit any Customer to do so.
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3.3
For greater certainty, any upgrades or revisions to the Portal
Management Software undertaken by the Licensor, or any Person
acting for or on behalf of the Licensor shall be the property of
Licensor.
3.4 The Licensee’s rights with
respect to the use of the Portal Management Software shall not
extend to or include any Confidential Information of the Licensor,
as set out in Article 5 below. The Licensee acknowledges and agrees
that, except as otherwise expressly provided in this Agreement, it
acquires no title to any Confidential Information of the
Licensor.
3.5 Customer Information, Domain Addresses,
and any individual graphics, images, or other materials that the
Licensee owns and provides shall remain the property of the
Licensee, but the Licensee shall have no property rights in the
websites, web pages, or other content accessible on any Domain
Address that has been developed, created, or integrated by the
Licensor. The Licensee agrees to allow the Licensor to access and
use Customer Information, and to obtain all consents required by
law, contract or otherwise to allow the Licensor to access and use
Customer Information before making such Customer Information
available to the Licensor.
3.6 The Licensee acknowledges that it may
not assign, license or otherwise transfer by operation of law its
rights to use of the Portal Management Software without the prior
written consent of the Licensor. The Licensor may immediately
terminate the Agreement without penalty if the Licensee violates
this Article 3.6.
ARTICLE 4
FEES AND PAYMENT
4.1 The Licensee agrees that in
consideration for the performance of the Services for each
six-month period, US$7,500 (the “Fees”), plus
Applicable Taxes, shall be payable to the Licensor prior to
commencement of the period. Unless otherwise stated in this
Agreement, no Fees shall be refundable after being paid.
4.2
All Payments shall be made by wire transfer or such other method as
is acceptable to the Licensor.
4.3 If any Payment is not received by the
Licensor in full by the specified date for that Payment, the
outstanding Payment amount is subject to interest at an annual rate
equal to the Prime Rate plus 10%, or the highest amount allowed by
law, whichever is lower. Interest shall compound monthly until
Payment is made in full.
ARTICLE 5
CONFIDENTIAL INFORMATION
5.1 The Parties acknowledge that in the
course of performance of their respective obligations pursuant to
this Agreement, each may obtain certain confidential and/or
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proprietary information of the other Party or such other
Party’s affiliates or customers. “Confidential
Information” means confidential, private, or secret
information of a Party in any material form and however fixed,
stored, expressed or embodied and includes all information of or
relating to the Licensor or the Licensee concerning past, present
or future employees, employee benefits, employee relations,
suppliers, customers, finances, contracts between the Licensor and
Licensee, obligations, commitments, pricing, costing, products,
services, marketing and product plans, know how, patents,
copyrights, intellectual property, trade secrets, processes,
techniques, programs, designs, formulae, compositions, drawings,
computer programs, work in progress, ideas, concepts, technical and
other data, together with all notes, analyses, compilations,
forecasts, studies or material that contain or otherwise reflect
any of the foregoing, in each case in oral, written, graphic,
electronic or any other form or medium whatsoever. Notwithstanding
the foregoing, Confidential Information does not include any of the
following:
(a) data or information that has become generally available to the
public other than as a result of a disclosure in breach of this
Agreement;
(b) data or information that is lawfully received on a
non-confidential basis by one of the Parties from a source other
than the other Party or any of its respective directors, officers,
employees, agents, advisors or other representatives and such
source is not prohibited from transmitting or disclosing the data
or information by reason of any contractual, legal or fiduciary
obligation; and
(c) Customer lists and other Customer Information permitted to be
used by the Licensor pursuant to Article 6.4 of this Agreement.
5.2 Each of the Licensor and the Licensee
acknowledges and agrees that the other Party’s Confidential
Information is confidential and proprietary to the other Party and
includes commercially valuable copyrighted works and trade secrets
of the other Party and/or is copyrighted and proprietary property,
which the other Party has the right to sell and distribute, and
that, except as otherwise expressly provided in this Agreement, it
acquires no title to any of the other Party’s Confidential
Information. Without the other Party’s prior written consent,
each of the Licensor and the Licensee agree not to use any of such
Confidential Information of the other Party for any purpose other
than as permitted or required under this Agreement. Without the
other Party’s prior written consent, each Party to this
Agreement further agrees not to disclose or provide any of such
Confidential Information to any third party. This obligation of
non-disclosure and confidentiality shall survive the expiry or
termination of this Agreement.
5.3 Each Party agrees to take all reasonable
steps, including but not limited to contractual and other legal
means, to preserve the secrecy and confidentiality of the
Confidential Information of the other Party.
5.4 The foregoing obligations of confidence
and non-disclosure shall not apply to Confidential Information that
must be disclosed pursuant to the requirements of law, provided
that the Party required to disclose provides prompt written notice
to the other
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Party so that the other Party may seek a protective order or other
appropriate remedy or waive compliance with the requirements of
this Agreement. In the event that such protective order or other
remedy is not obtained, or the Licensor or the Licensee, as the
case may be, does not waive compliance with the requirements of
this Agreement, the Party required to disclose will only furnish
that portion of the Confidential Information that it is advised by
its legal counsel in writing that it is legally required to
disclose and will exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded to such
Confidential Information.
5.5 Each Party undertakes and agrees to
return all documents and other materials relating to or concerning
the other Party’s Confidential Information forthwith,
including any copies of those documents and materials then in
existence, upon the occurrence of any of the following events:
(a) On demand by the other Party;
(b) Without demand as soon as the documentation is no longer
required; and
(c) Upon termination of this Agreement.
ARTICLE 6
NON-EXCLUSIVITY AND COMPETITION
6.1 The Licensee acknowledges that this is
not an exclusive agreement and that the Licensor may license
software similar to the Portal Management Software to other Persons
that may be competing with the Licensee. Nothing in this Agreement
shall limit the Licensor from entering into similar licensing
consulting or service agreements with third parties who are similar
to or competitive with the Licensee.
6.2 In the absence of prior written
permission from the Licensor, the Licensee will not during the Term
of this Agreement and for a period of one (1) year after the
termination of this Agreement, use any Confidential Information or
any of the database and other information maintained by the
Licensor to directly or indirectly solicit, interfere with or
endeavour to direct or entice away customers from the Licensor.
6.3 In the absence of prior written
permission from the Licensee, the Licensor will not, during the
Term of this Agreement and for a period of one (1) year after the
termination of this Agreement, directly or indirectly solicit,
interfere with or endeavour to direct or entice away from the
Licensee any Customer, except in the case of a breach of the
Agreement by the Licensee pursuant to Article 10.2 (e), in which
case the Licensor may, without penalty, solicit any individual who
was a Customer of the Licensee during the Term of the
Agreement.
6.4 Subject to any applicable
law, the Licensor shall have the right to utilize the Customer
Information for any purpose that does not conflict with the
Licensee’s marketing of the businesses that the Portal
Management Software is associated with or
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used in connection with. In the absence of prior written permission
from the Licensee, the Licensor shall not utilize the Customer
Information in the marketing of any site being operated by the
Licensor, or one of its parent companies, subsidiaries, or
affiliates, except in the case of a breach of the Agreement by the
Licensee pursuant to Article 10.2 (e), in which case
