TECHNOLOGY LICENSE AND SERVICES AGREEMENT
This Technology License and Services Agreement (the "Agreement") is made
and entered into as this 12th day of February, 1999, by and between
CyberConstruction Company, Inc., a Nevada corporation with offices located at
5412 Pine Bay Drive, Tampa, Florida 33625 ("Cyber") and Powersoft Technologies,
Inc., a Delaware corporation with offices located at 1088--650 West Georgia
Street, Vancouver Centre, Vancouver, British Columbia, Canada V6B 4N8
WHEREAS, Cyber has developed, and will continue to develop, certain
software applications, methods, operating procedures, Internet infrastructure
design, and Internet site template development (collectively, the "Technology")
as more fully described in Exhibit A, attached hereto and made a part hereof;
WHEREAS, Powersoft desires to license the Technology in order to provide
certain services to its customers related to Internet site design and support;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. OBLIGATIONS OF CYBER, GRANT OF LICENSE.
1.1 Technology License. Cyber hereby grants to Powersoft, and Powersoft
accepts, subject to the terms and conditions set forth herein and the
transfer and perfection by Powersoft to Cyber of certain value as
described below, an exclusive (except as to Cyber and any and all
affiliated companies including CyberConstruction Hong Kong and
CyberConstruction China), nontransferable license to use and execute
the Technology in order to support, build, maintain and develop
Internet sites for its customers throughout Hong Kong, Malaysia,
Indonesia, Philippines, Taiwan, Korea, Australia, Now Zealand, Japan,
Vietnam, and Thailand. Additionally, Cyber grants Powersoft a
nonexclusive, nontransferable license to use and execute the
Technology in order to support, build, maintain and develop Internet
sites for its customers worldwide.
1.2 Future Technology. During the term of this Agreement, Cyber will also
grant to Powersoft, under the same terms and conditions described in
Paragraph 1.1 above, licenses to future Technology developed by Cyber
in consideration for the value described below.
1.3 Services. Cyber agrees that during the term of this Agreement, Cyber,
will perform a variety of services described within this paragraph 1.3
(the 'Services'), Cyber will assist Powersoft in identifying and
evaluating third party technologies and software applications that
Powersoft can license and or acquire under similar terms and
conditions contained herein. Furthermore, Cyber will also assist
Powersoft in identifying certain technology companies that may be
acquired by or merged into Powersoft and where appropriate, determine
a fair market valuation as a basis for such acquisition or merger.
Cyber will also assist Powersoft in the identification and recruitment
of executive management.
1.4 Year 2000 Compliant. Cyber agrees that any and all Technology licensed
and transferred to Powersoft pursuant to this Agreement will be Year
2000 complaint. Year 2000 complaint means that the licensed
Technology, when used according to its operating specifications
described in Exhibit A, attached hereto, will operate in accordance
with the contractual terms of this Agreement both before and after
December 31, 1999 (a) by correctly calculating, comparing, sequencing
and accepting dates from, into, and between the 20th and 21st
centuries and managing and manipulating data involving such dates
(including same century and multi-century formulae and leap years);
(b) without causing the programs to abnormally end processing on any
date; and (c) without generating values resulting from such dates with
at least the same level of functionality as would otherwise be
provided in the absence of the Year 2000 date change.
SECTION 2. PAYMENT.
2.1 Payment. In consideration of the Technologies and Services described
in Section 1 above provided by Cyber, Powersoft agrees to grant and
transfer to Cyber, its preferred shares with a face value of ten
million dollars ($10,000,000.00), as part of an issuance of up to
fifty million ($50,000,000.00) of preferred shares. Powersoft intends
to utilize this issuance of its preferred stock to both license
technology and/or acquire technology companies within the United
States in order to meet the growing demand within Asia for access to
2.2 Registration. Powersoft agrees, that upon the sooner of (i) the
licensing or acquisition of technologies or companies utilizing the
fifty million ($50,000,000,00) of the above described issuance of its
preferred equity as its transaction currency; or (ii) the expiration
of twenty-four months from the date first mentioned above; Powersoft
will endeavor to meet the listing requirements of the NASDAQ for the
registration of said preferred equity. Upon the successful completion
of said registration, Powersoft will use its best efforts to ensure
that Cyber's portion of Powersoft's preferred equity will be held by
Cyber without restriction.
SECTION 3. REPRESENTATION AND WARRANTIES OF CYBER.
Cyber makes the following representation and warranty to Powersoft which is
true and correct as of the date hereof and shall remain true and correct
throughout the term of this Agreement, Cyber represents and warrants that the
Technology does not infringe or violate any patent, copyrights, trademarks,
trade secrets or other proprietary rights of any third party.
SECTION 4. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
4.1 Exclusion of Warranties. EXCEPT AS OTHERWISE SET FORTH HEREIN, CYBER
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, AND CYBER GIVES NO IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, AND NO IMPLIED WARRANTY ARISING BY
USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
4.2 Exclusion of Consequential Damages. IN NO EVENT SHALL CYBER HAVE ANY
LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, THE
TECHNOLOGY, THE USE OF THE SERVICES BY POWERSOFT AND/OR THE USE OF THE
TECHNOLOGY BY POWERSOFT, EVEN IF POWERSOFT HAS BEEN ADVISED OF OR
KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 5. REPRESENTATION AND WARRANTIES OF POWERSOFT.
Powersoft makes the following representation and warranty to Cyber which is
true and correct throughout the term of this Agreement. Powersoft represents and
warrants that Powersoft has all right, title, interest, and authority to effect
the transfer of the Preferred Equity, described in Section 2 above, and it will
take all reasonable and necessary measures to perfect Cyber's interest in the
SECTION 6. TERM AND TERMINATION.
6.1 Term. The term of this Agreement shall continue until terminated by
either party for cause as described below in Paragraph 6.2 below or by
mutual consent of both parties. This Agreement may be terminated with
the mutual written consent of both parties hereto, under terms and
conditions agreeable to both parties.
6.2 Termination. Either party may terminate this Agreement should the
other party breach any provision of this Agreement sixty (60) days
after providing written notice of such breach, if such breach has not
been cured within said sixty (60) day period.
6.3 Effects of Termination. In the event of termination for failure of
Powersoft to meet any of its obligations described in Section 2 above,
Powersoft shall be liable to Cyber for the reasonable payment for
services rendered and shall be required to return all Technology to
Cyber on the date of termination, or as soon thereafter as is
commercially reasonable. Powersoft shall return to Cyber all
originals, copies and digital files and copies of all Technology,
provided that if any Technology has become integrated into any active
Internet sites of customers of Powersoft, Powersoft will pay Cyber any
fees it has collected from such customers.
6.4 Survival of Certain Provisions. The following provisions shall survive
the expiration or termination at this Agreement for any reason:
2,3,4,5,7, 8 & 9.
SECTION 7. INDEMNIFICATION.
7.1 Indemnification by Cyber. Cyber will at all times defend, indemnify
and hold harmless Powersoft and its officers, directors, shareholders,
successors and assigns (collectively, the "Powersoft Indemnified
Parties") from and against, and pay and reimburse the Powersoft
Indemnified Parties for, any and all liabilities, obligations, claims,
suits, losses, damages, costs or expenses (including reasonable
attorneys' fees) incurred in connection with, arising out of,
resulting from, or relating to the Technology or any representation or
warranty by Cyber contained herein being untrue in any material
respect, or any act or omission on the part of Cyber, its employees,
or agents in the performance of its obligations set forth in this
7.2 Indemnification by Powersoft. Powersoft will at all times defend,
indemnify and hold harmless Cyber and its officers, directors,
shareholders, successors and assigns (collectively, the Cyber
Indemnified Parties') from and against and pay and reimburse the Cyber
Indemnified Parties for, any and all liabilities, obligations, claims,
suits, losses, damages, costs or expenses (including reasonable
attorneys' fees), incurred in connection with, arising out of,
resulting from, or relating to the Services, or any representation or
warranty by Powersoft contained herein being untrue in any material
respect, or any act or omission on the part of Powersoft its
employees, or agents in the performance of its obligations set forth
in this Agreement.
SECTION 8. CONFIDENTIALITY.
Either party may, during the term of this Agreement have access to
materials, data, systems, business plans and other information of or with
respect to Cyber or Powersoft, as applicable, which may not be accessible or
known to the general public. Such information and any knowledge acquired by
Cyber or Powersoft as applicable, from such materials, data, systems, business
plans or other information, or otherwise acquired, throughout the term of this
Agreement shall be covered by this CONFIDENTIALITY SECTION. Both Cyber and
Powersoft agree not to use any confidential or proprietary information obtained
from the other for any purposes other then the performance of this Agreement.
SECTION 9. GENERAL.
9.1 Relationship of the Parties. Cyber and Powersoft are independent
contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture or agency
relationship between Cyber and Powersoft. Neither party has any
authority to enter into agreements of any kind on behalf of the other
9.2 Force Majeure. Neither part will be liable to the other for any
failure or delay of performance or other consequence which is due to
(i) any act of God, act of government, war, civil disturbance or other
cause beyond their reasonable control and power to remedy; or (ii) any
strike, or other labor dispute, scarcity of supplies or utilities or
unavailability or disruption of transportation.
9.3 Assignment, Binding Effect. Neither party may assign this Agreement or
any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party. Any purported
assignment which is inconsistent with the foregoing shall be null and
9.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without giving
effect to any principles of conflict of laws.
9.5 Waiver. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall
be effective unless made in writing and signed by an authorized
representative of the waiving party.
9.6 Notices. Any notices or other communication required or permitted to
be given hereunder shall be given in writing and delivered in person,
sent by facsimile, mailed or delivered by recognized courier service,
properly addressed and stamped with the required postage, to each
parties President at its address specified as it first appears above
and shall be deemed effective upon receipt. Either party may from time
to time change its address by giving the other party notice of the
change in accordance with this section.
9.7 Severability. In the event any provision of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, the remaining provisions shall remain in full force and
9.8 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute one and same instrument
9.9 Survivability. This Agreement shall survive any and all mergers,
acquisitions (of or by either party), corporate restructuring,
corporate reorganizations of either party to this Agreement, and the
benefits and responsibilities of both parties shall inure to their
successors and/or permitted assigns.
9.10 Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements or
understandings between Cyber and Powersoft concerning the subject
matter hereof, and cannot be amended except by a writing signed by
both parties. No party hereto has relied on any statement,
representation or promise of any other party or of any officer, agent,
employee or attorney for the other party in executing this Agreement
except as expressly stated herein.
9.11 No Third Party Beneficiaries. Nothing in this Agreement is intended or
shall be construed to give any person, other then the parties hereto,
any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
CyberConstruction Company, Inc.
By: /s/ Charles R. Brink
Name: Charles R. Brink
Powersoft Technologies, Inc.
By: /s/ Fai H. Chan
Name: Fai H. Chan