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TRANSITION AGREEMENT
This TRANSITION AGREEMENT (the " Agreement
"), is made as of December 15, 2006, by and between Das Family
Holdings, a California corporation (" Licensor "), and
BPOMS/HRO, Inc., a Delaware corporation (" Licensee
").
R E C I T A L S:
A. Immediately prior
hereto, Licensor purchased BPO Management Services, Inc.’s
interest in Research Engineers, Ltd. and certain other assets
including, without limitation, the Internet domain name set forth
on Exhibit A hereto (the " Domain Name ") and
trademark set forth on Exhibit A hereto (the " Mark "
and collectively with the Domain Name, the " Marks ")
pursuant to the terms and conditions of that certain Purchase
Agreement dated August 29, 2006, as amended (the " Purchase
Agreement "), between Licensor and BPO Management Services,
Inc. (formerly netGuru, Inc.), a Delaware corporation
("Parent").
B. Licensee is a
wholly-owned subsidiary of Parent.
C. Licensee intends
to continue to market and sell (i) certain engineering business
process outsourcing services for the architecture, engineering, and
construction (A/E/C) industry, (ii) document/project collaboration
software/solutions for A/E/C companies, enterprise software
providers, software integrators, and other businesses engaged in
document/project-centric operations, and (iii) technical services
and support (collectively, the " Business ").
D. Licensee desires
to obtain from Licensor and Licensor desires to grant to Licensee a
temporary license to use the Marks in connection with the Business
during the Term (as defined in Section 7 below), on the terms and
subject to the conditions set forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual
covenants herein and for other good and valuable consideration, the
receipt and sufficiency of each of which are hereby acknowledged,
the parties hereby agree as follows:
1. Grant of
License . Licensor hereby grants to Licensee, and Licensee
hereby accepts, an exclusive, non-transferable, royalty-free
license (the " License ") to use and display the Marks, and to
use the Domain Name for the purpose of promoting the Business and
directing customers or potential customers to an Internet web site
or other computer server accessible via the Internet in connection
with the Business, during the Term and subject to the restrictions
on use set forth in Section 2 below. Licensee shall have no right
to grant sublicenses of the Marks or to assign its rights hereunder
to any other party except as expressly provided in Section 11(d)
hereof.
2. Restrictions
on License of Marks; Likelihood of Confusion .
(a) Licensee shall
only use the Marks in connection with the operation and promotion
of the Business in a manner consistent with its usage prior to the
date hereof and for no other purpose whatsoever.
(b) Licensee shall
not adopt or use any word, name, mark or other designation that is
likely to cause confusion with the Marks and shall not make any
unlicensed use or file any application for registration of the
Marks or any mark confusingly similar thereto anywhere in the
world. Licensee shall not use or advertise the Marks in a manner
which is likely to cause third parties to believe that Licensee is
related to Licensor in any way other than as a holder of a license
to the Marks. In the event that Licensor reasonably believes an
action or practice undertaken by Licensee is likely to be confusing
to third parties, Licensor may, in its sole discretion, require
Licensee to cease and desist use of the Licensee in that manner,
and Licensor and Licensee shall work together in good faith to
modify such action or practice so as to comply with this
Agreement.
3. Consideration . The grant of the License hereunder is a
requirement and inducement for Parent to consummate the
transactions contemplated by the Purchase Agreement and, as such,
the parties agree that this constitutes adequate consideration.
Accordingly, Licensee shall not be required to pay a separate
royalty or other charge for the License.
4. Title in
Licensor . Licensee acknowledges Licensor’s use of the
Marks and agrees that Licensee shall not acquire any right, title
or interest in or to the Marks by virtue of the License or through
Licensee’s use of the Marks other than the right to use such
Marks to the extent expressly provided under this Agreement.
Licensee agrees that it shall not (a) assert any claim to the Marks
other than as a licensee as expressly provided herein, (b) contest
in any way Licensor’s ownership of or right to use such
Marks, or (c) take any action or any position inconsistent with
such ownership.
5. Quality
Control . Licensee agrees to use the Marks only in
connection with the purpose for which they are intended, which
purpose shall not reflect adversely upon the good name of Licensor
or the goodwill and reputation associated with the Marks.
6. Infringement
by Third Parties . If Licensee learns of any infringement of
the Marks or of the existence, use or promotion of any mark or
design that is confusingly similar to the Marks by any third party,
or believes that any third party may be so infringing the Marks or
using or promoting any such confusingly similar mark or trade name,
Licensee shall promptly give Licensor notice in accordance with
Section 11(c). If Licensor elects to take action against any
infringement, Licensee shall, at Licensor’s cost, render all
reasonable assistance to Licensor in connection therewith.
7. Term .
The term of this Agreement (the " Term ") shall be for a period
commencing on the date hereof and expiring on March 31, 2007,
except in the event that (a) the parties hereto mutually agree to
terminate this Agreement in which event the Term shall terminate at
such agreed upon time, (b) Licensee materially breaches this
Agreement in which case the Agreement shall terminate immediately,
(c) Licensor materially breaches this Agreement in which case the
Agreement may be terminated at the election of Licensee, (d) an
Event of Default occurs under that certain secured promissory note
in principal amount of $125,000 made in favor of Licensor dated the
same date hereof, in which case the Agreement shall terminate
immediately, or (e) Licensee is no longer a wholly-owned subsidiary
of Parent, Licensee discontinues its business, makes an assignment
for the benefit of creditors, files a petition under Section 11 of
the United States Bankruptcy Code (or any successor thereto), is
adjudicated bankrupt or insolvent, a petition in bankruptcy is
filed against Licensee that is not dismissed within sixty (60)
days, a receiver or trustee is appointed for Licensee’s
business or property or there is a permanent cessation of business
by Licensee, in which case the Agreement shall termi
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