EXHIBIT 10.6
[Execution Copy]
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is made
this 31st day of March, 2004 ("the
Effective Date"), by and between Natural
Health Trends Corp., a Florida
corporation, ("NHTC"), MV MergerCo, Inc., a
Delaware Corporation (hereinafter
"MergerCo"), and MarketVision Consulting
Group, LLC, a Delaware LLC having a
registered address of 9 East Loockerman
Street, Suite 1B, Dover, Kent County,
Delaware 19901, ("Licensee").
BACKGROUND
Under that certain Agreement and Plan of
Merger dated March 31, 2004 (as the
same may be modified, amended, supplemented
and/or restated from time to time,
the "Merger Agreement"), among Natural
Health Trends Corp., MV MergerCo, Inc.,
and MarketVision Communications Corporation
("MVCC"), the MarketVision Software
(as defined in the Merger Agreement)
developed and owned by MVCC became owned by
MergerCo.
This is the MarketVision Software License
Agreement referred to (and defined as
such) in the Merger Agreement. It is a
condition precedent to the consummation
of the transactions contemplated by the
Merger Agreement that NHTC and MergerCo
execute and deliver this Agreement.
Now, therefore, in consideration of the
premises and mutual covenants and
undertakings herein contained and of each
and every act performed or to be
performed hereunder, NHTC, MergerCo, and
Licensee hereby agree and covenant
as follows:
1.
Definitions.
1.1 Software: means the MarketVision Software in executable and
machine-interpretable form, and any updates
and enhancements thereto made by or
for any party to this Agreement.
1.2 Documentation: means, with respect to a software program of
the
Software, the source code, if applicable
(with comments as may exist), as well
as any pertinent commentary or explanation
prepared by or for, or that is the
property of, the owner, developer, author,
or maintainer, including without
limitation all notes, flow charts,
programmer's and user's manuals.
1.3 Intellectual Property Rights: means patent rights (including
patent
applications and disclosures), copyrights
(including, but not limited to, rights
in audiovisual works), trademark rights
(including but not limited to
trademarks, whether registered or not),
trade secret rights, rights of priority
and any other intellectual property right
recognized in any country or
jurisdiction in the world.
1.4 Trademark: means the service mark and trademark MARKETVISION
in
the goods and services of the development,
distribution, and maintenance of
the Software.
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1.5 Other Definitions: Capitalized terms not otherwise
expressly
defined in this Agreement shall have the
meanings set forth in the
Merger Agreement.
2.
License. Subject to the terms and conditions of this Agreement,
MergerCo grants to Licensee an irrevocable,
exclusive, perpetual, royalty-free,
fully-paid, worldwide, transferable,
sublicensable right and license to use,
copy, modify, distribute, rent, lease,
enhance, transfer, market, and create
derivative works of the Software and
Documentation, and to sue for infringement
of the Software and Documentation for its
own account and without right of
accounting to Licensor. MergerCo further
grants to Licensee an irrevocable,
exclusive, perpetual, royalty-free,
fully-paid, worldwide, transferable,
sublicensable right and license to use the
Trademark in connection with its
development, distribution, and maintenance
of the Software and Documentation.
3.
Limited Rights. Notwithstanding the foregoing, Licensee agrees
that
during the period commencing on the date
hereof and ending on the date upon
which an Event of Default occurs, (i)
subject to Licensor's compliance with
Section 6 below, Licensee agrees to waive
its right to exclusivity granted under
Section 2 above, and to waive its rights to
sublicense, distribute, rent, lease,
transfer, market, and sue for infringement
of, the Software and Documentation,
in order to enable Licensor to use the
Software and Documentation, and to grant
such restricted licenses to the Software
and Documentation to third parties as
are permitted herein. Following the
occurrence of an Event of Default, (a) each
and every element of Licensee's waiver
under this Section 3 of exclusivity and
of rights shall terminate, and (b) Licensee
may exercise and exploit every right
granted to it under Section 2 above, such
rights to be exclusive except as
subject to MergerCo's retention of a
limited right to use the Software and
Documentation for Licensor's (Licensor's
affilate's, or other permitted owner's)
internal use only and not as an application
service provider or service bureau,
and (ii) MergerCo shall not rent, lease,
license, transfer or distribute the
Software or the Documentation without the
prior written consent of Licensee;
provided however, that NHTC, MergerCo or
any of their affiliates or joint
ventures may transfer the ownership of the
Software to any third party in
connection with a sale of all, or
substantially all, of the assets of such
entity, subject in each case to Licensee's
rights, and the acquiring party's
assumption of all obligations, under this
Agreement.
4.
Proprietary Rights. All right, title, interest, ownership and
proprietary rights in and to the Software
and Documentation (including
derivative works, enhancements,
corrections, or improvements made by Licensee,
but only such made prior to an Event of
Default) shall remain in MergerCo, NHTC,
or any affiliate thereof, as the case may
be, subject in each case to Licensee's
rights under this Agreement. MergerCo's
rights under this Section 4 will include
all Intellectual Property Rights in the
Software and Documentation, but shall
exclude any Intellectual Property Rights in
any derivative works, enhancements,
corrections, or improvements that Licensee
may create following the occurrence
of an Event of Default.
5.
Maintenance. During the term of this Agreement, MergerCo and/or
NHTC,
any affilate thereof or other permitted
owner of the Software and Documentation
will, upon written request from Licensee
from time to time, provide Licensee the
following materials and standard
maintenance services for the Software through
electronic download, electronic mail
transmission, or physical delivery: (i) the
Software and Documentation as they exist as
of the date of this Agreement; (ii)
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corrections of substantial defects in the
Software; and (iii) periodic updates
of the Software that may incorporate (a)
corrections of any Software defects,
(b) fixes of any Software bugs, and (c) any
enhancements to the Software,
created, designed, or implemented by
MergerCo, NHTC, and/or their employees,
contractors, and agents. Standard
maintenance services do not include:
(i) custom programming services; (ii)
on-site support; or (iii) hardware and
related supplies.
6.
Restrictions on Licensing of So
