ASSIGNMENT OF PROPERTY AGREEMENT

NOW, THEREFORE, in consideration of the following covenants and conditions, and for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

1.  Assignment and Transfer of Property.  The Company hereby assigns, grants, conveys and transfers to Banister all of the Company’s right, title and interest in and to the Enginet web properties of the Company described in Schedule A hereto, including, without limitation, all source codes, documentation, related URLs, intellectual property rights and other rights related thereto (the “Property”), subject to the terms hereof.

 

2.  Mutual Representations and Warranties. Each party represents and warrants to the other party that the representing and warranting party, to its best knowledge is free to enter this Agreement and in so doing it will not violate any other agreement to which it is party or subject.

3.  No Other Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND THE PARTIES DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY.

 

4.  Entire Agreement.  This Agreement does not constitute an offer by the Company and it shall not be effective until signed by all of the parties hereto.  This Agreement constitutes the entire agreement between the parties with respect to its subject matter and merges all prior and contemporaneous communications.

 

 

5.  Miscellaneous.

5.1 Neither this Agreement nor any provisions hereof shall be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

5.2  Any notice or communication under this Agreement must be in writing and sent (i) by mail, postage prepaid and registered or certified with return receipt requested, (ii) by overnight courier, (iii) by facsimile or email, or (iv) by delivering the same in person.  Notices shall be sent to the last known addresses of the parties or to such other address or addresses as any party may designate by notice as provided above.

5.3  Each party to this Agreement shall perform any and all acts and execute and deliver any and all documents as may be necessary and proper under the circumstances in order to accomplish the intents and purposes of this Agreement and to carry out its provisions.

5.4  This Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

5.5  This Agreement shall be governed and construed under the laws of the State of Delaware.

5.6  If any provision or any portion of any provision of this Agreement shall be held to be void or unenforceable, the remaining provisions of this Agreement or the remainder of the provision held void or unenforceable in part shall continue in full force and effect.

5.7  No waiver by any party, whether express or implied, of any provision of this Agreement, or of any breach or default, shall constitute a waiver or a breach of a similar or dissimilar provision or condition at the same time or any prior or subsequent time.

5.8  Each of the parties hereto represents, warrants and covenants that it has had ample opportunity to consider entering into this Agreement and has had an opportunity to consult with counsel regarding this Agreement prior to executing the same.  Banister understands and agrees that Kaye Cooper Fiore Kay & Rosenberg, LLP, the draftsperson of this Agreement, has prepared this Agreement on behalf of the Company and is not representing Banister in an individual capacity in the negotiation and consummation of the transactions hereunder. The parties further agree that any rule that provides that an ambiguity within a document will be interpreted against the party drafting such document shall not apply.

5.9  This Agreement may be executed in counterparts, each of which shall be considered an original instrument, but all of which together shall be considered one and the same agreement.  The counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (.pdf).