COPYRIGHT DEVELOPMENT AND TRANSFER AGREEMENT
THIS AGREEMENT ("Agreement ") is entered into by and between FUSION NETWORKS,
INC. (the "Client" ) and RED COLOMBIA LTDA. (the "Contractor") on the 28TH of
July 1999 (the "Effective Date").
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements set forth herein, the parties agree as follows:
1. Engagement of Services.-
Contractor agrees to perform services for Client according to the specifications
in Exhibit A ("Proposal"). Contractor may not subcontract or otherwise delegate
its obligations under this Agreement without Client's prior written consent.
Contractor agrees to perform the services in professional manner until October
2.1 Fees and Approved Expenses: Client will pay Contractor the fee of
US$182,559.oo for services rendered by Contractor pursuant to this Agreement.
Contractor will not be reimbursed for any expenses incurred in connection with
the performance of services under this Agreement, unless those expenses are
approved in advance and in writing by Client as Reimbursable Expenses.
2.2 Payment Due: Client will review the Work Product (as defined in Section 5)
within five (5) days after receiving it from Contractor to ensure that it meets
the Project requirements stated in Section 1. If Client does not give written
notice of rejection to Contractor within that time period (describing the
reasons for the rejection in reasonable detail), the Work Product will be deemed
to be accepted. Client will pay Contractor for services and will reimburse
Contractor for previously approved expenses as stated in Exhibit B.
3. Independent Contractor Relationship.-
Contractor and Client understand, acknowledge, and agree that Contractor's
relationship with Client will be that of an independent contractor and nothing
in this Agreement is intended to or should be construed to create a partnership,
joint venture, or employment relationship.
4. Trade Secrets and Confidential Information.-
4.1 Third-Party Information: Contractor represents that his performance of all
of the terms of this Agreement does not and will not breach any agreement to
keep in confidence proprietary information, knowledge or data of a third party
and Contractor will not disclose to Client, or induce Client to use, any
confidential or proprietary information belonging to third parties unless such
use or disclosure is authorized in writing by such owners.
4.2 Confidential Information: Contractor agrees during the term of this
Agreement and thereafter to take all steps reasonably necessary to hold in trust
and confidence information which he knows or has reason to know is considered
confidential by Client ("Confidential Information"). Contractor agrees to use
the Confidential Information solely to perform the Project hereunder.
Confidential Information includes, but is not limited to, technical and business
information relating to Client's inventions or products, research and
development, manufacturing and engineering processes, and future business plans.
Contractor s obligations with respect to the Confidential Information also
extend to any third party s proprietary or confidential information disclosed to
Contractor in the course of providing services to Client. This obligation shall
not extend to any information which becomes generally known to the public
without breach of this Agreement. This obligation shall survive the termination
of this Agreement.
5. Ownership of Work Product.-
5.1 Definition: Work Product means the works of authorship conceived or
developed by Contractor while performing the Project services.
5.2 Assignment: Contractor hereby irrevocably assigns, conveys and otherwise
transfers to Client, and its respective successors and assigns, all rights,
title and interests worldwide in an to the Work Product and all copyrights,
contract and licensing rights, and claims and causes of action of any kind with
respect to any of the foregoing, whether now known or hereafter to become known.
In the event Contractor has any rights in and to the Work Product that cannot be
assigned to Client, Contractor hereby unconditionally and irrevocably waives the
enforcement of all such rights, and all claims and causes of action of any kind
with respect to any of the foregoing against Client, its distributors and
customers, whether now known or hereafter to become known and agrees, at the
request and expense of Client and its respective successors and assigns, to
consent to and join in any action to enforce such rights and to procure a waiver
of such rights from the holders of such rights. In the event Contractor has any
rights in and to the Work Product that cannot be assigned to Client and cannot
be waived, Contractor hereby grants to Client, and its respective successors and
assigns, an exclusive, worldwide, royalty-free license during the term of the
rights to reproduce, distribute, modify, publicly perform and publicly display,
with the right to sublicense through multiple tiers of sublicenses, and the
right to assign such rights in and to the Work Product including, without
limitation, the right to use in any way whatsoever the Work Product. Contractor
retains no rights to use the Work Product except as stated in Exhibit B and
agrees not to challenge the validity of the copyright ownership by Client in the
5.3 Power of Attorney: Contractor agrees to assist Client in any reasonable
manner to obtain and enforce for Client's benefit copyrights covering the Work
Product in any and all countries. Contractor agrees to execute, when requested,
copyright, or similar applications and assignments to Client, and any other
lawful documents deemed necessary by Client to carry out the purpose of this
Agreement. Contractor further agrees that the obligations and undertaking stated
in this Section 5.3 will continue beyond the termination of Contractor s service
to Client. If called upon to render assistance under this Section 5.3,
Contractor will be entitled to a fair and reasonable fee in addition to
reimbursement of authorized expenses incurred at the prior written request of
Client. In the event that Client is unable for any reason whatsoever to secure
Contractor's signature to any lawful and necessary document required to apply
for or execute any patent, copyright or other applications with respect to any
Work Product, Contractor hereby irrevocably designates and appoints Client and
its duly authorized officers and agents as his agents and attorneys-in-fact to
act for and in his behalf and instead of Contractor, to execute and file any
such application and to do all other lawfully permitted acts to further the
prosecution and issuance of copyrights or other similar rights thereon with the
same legal force and effect as if executed by Contractor.
6. Return of Client s Property.-
Contractor acknowledges that Client's sole and exclusive property includes all
documents, such as drawings, manuals, notebooks, reports, sketches, records,
computer programs, employee lists, customer lists and the like in his custody or
possession, whether delivered to Contractor by Client or made by Contractor in
the performance of services under this Agreement, relating to the business
activities of Client or its customers or suppliers and containing any
information or data whatsoever, whether or not Confidential Information.
Contractor agrees to deliver promptly all of Clients property and all copies of
Client s property in Contractor s possession to Client at any time upon Client s
7. Warranties. Contractor represents and warrants that:
7.1. The Work Product was created solely by him, his full-time employees during
the course of their employment, or independent contractors who assigned all
right, title and interest worldwide in their work to Contractor.
7.2. Contractor is the owner of all right, title and interest in the tangible
forms of the Work Product and all intellectual property rights protecting them.
The Work Product and the intellectual property rights protecting them are free
and clear of all encumbrances, including, without limitation, security
interests, licenses, liens, charges or other restrictions;
7.3. Contractor has maintained the Work Product in confidence.
7.4. The use, reproduction, distribution, or modification of the Work Product
does not and will not violate the rights of any third parties in the Work
Product including, but not limited to, copyrights, trade secrets, trademarks,
publicity and privacy.
7.5. The Work Product is not in the public domain.
7.6. Contractor has full power and authority to make and enter into this
8. General Provisions.
This Agreement will be governed by and construed in accordance with the laws of
the United States and the State of Florida as applied to agreements entered into
and to be performed entirely within that state between residents of that state.
This Agreement, including any Exhibits to this Agreement, constitutes the entire
agreement between the parties relating to this subject matter and supersedes all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral. The Agreement may not be modified except by
written instrument signed by both parties. No term or provision hereof will be
considered waived by either party, and no breach excused by either party, unless
such waiver or consent is in writing signed on behalf of the party against whom
the waiver is asserted. No consent by either party to, or waiver of, a breach by
either party, whether express or implied, will constitute a consent to, waiver
of, or excuse of any other, different, or subsequent breach by either party.
Contractor may not assign its rights or obligations arising under this Agreement
without Client's prior written consent. Client may assign its rights and
obligations under this Agreement. This Agreement will be for the benefit of
Client s successors and assigns, and will be binding on Contractor's heirs,
legal representatives and permitted assignees. If any dispute arises between the
parties with respect to the matters covered by this Agreement which leads to a
proceeding to resolve such dispute, the prevailing party in such proceeding
shall be entitled to receive its reasonable attorneys fees, expert witness fees
and out-of-pocket costs incurred in connection with such proceeding, in addition
to any other relief to which it may be entitled. All notices, requests and other
communications required to be given under this Agreement must be in writing, and
must be mailed by registered or certified mail, postage prepaid and return
receipt requested, or delivered by hand to the party to whom such notice is
required or permitted to be given. Any such notice will be considered to have
been given when received, or if mailed, five (5) business days after it was
mailed, as evidenced by the postmark. The mailing address for notice to either
party will be the address shown on the signature page of this Agreement. Either
party may change its mailing address by notice as provided by this Section. The
following provisions shall survive termination of this Agreement: Sections 4, 5,
6, 7 and 8.
The Client declares that it currently does not develop activities nor has it any
business in Colombia and that the Work Product will be totally and exclusively
used outside Colombian territory.
As per the provision found under letter e) of article 481 of the Colombian Tax
Statute, this agreement is exempt of value added tax.
This Agreement is effective as of July 28, 1999
By: Red Colombia Ltda. By: Fusion Network Inc.
Luis Fernando Ruiz Hernando Bahamon Typed name
Gerente General CEO
Avda. 13 No 120-12 8115 N.W. 29th Ave.
Santafe de Bogota Miami, FL 33122