Memorandum of Understanding Joint Venture Agreement between FEMATA.com and ipowerUpSoftware, LLC dated April 30, 2007

13.

 

I.

If FEMATA.com et. al. shall be declared insolvent or bankrupt; if a petition is filed in a court of competent jurisdiction that declares FEMATA.com bankrupt or institutes a reorganization of FEMATA.com et. al. under bankruptcy law or any similar law and such petition is not dismissed within ninety (90) days; or if a trustee in bankruptcy or a receiver or similar entity is appointed for FEMATA.com et. al;

 

ii.

if there occurs a majority change of ownership in FEMATA.com or;

 

iii.

if FEMATA.com otherwise materially breaches this Agreement, and such breach is not cured within thirty (30) days after written notice of such breach is given to FEMATA.com.

 

i.

if ipowerUpSoftware, LLC shall be declared insolvent or bankrupt; if a petition is filed in a court of competent jurisdiction that declares ipowerUpSoftware, LLC bankrupt or institutes a reorganization of ipowerUpSoftware, LLC under bankruptcy law or any similar law and such petition is not dismissed within ninety (90) days; or if a trustee in bankruptcy or a receiver or similar entity is appointed for ipowerUpSoftware, LLC;

 

ii.

if there occurs a majority change of ownership in ipowerUpSoftware, LLC. Or

 

iii.

if ipowerUpSoftware, LLC otherwise materially breaches this Agreement, and such breach is not cured within thirty (30) days after written notice of such breach is given to ipowerUpSoftware, LLC.

14.

 

a)

By ipowerUpSoftware, LLC:

 

i.

ipowerUpSoftware, LLC is a legal limited liability company duly organized, validly existing, and in good standing under the laws of Florida whose Managing Director is Kristofer Valentine.

 

ii.

ipowerUpSoftware, LLC has all necessary and requisite power and full authority from any and all applicable legal and/or governmental authorities to enter into and perform its obligations under this Agreement. This Agreement constitutes the legal, valid and binding obligation of ipowerUpSoftware, LLC, enforceable against ipowerUpSoftware, LLC in accordance with the terms herein.

 

iv.

The execution, delivery or performance of this Agreement by ipowerUpSoftware, LLC does not conflict with any provision of the articles of incorporation, bylaws, shareholders agreement, regulations, operating agreement and/or any other corporate agreement of or pertaining to ipowerUpSoftware, LLC; violate any order, writ, injunction or decree of any court, administrative agency or governmental body; or constitute a default under any contract, mortgage, lease or any other agreement, regulation, law or code to which ipowerUpSoftware, LLC is a party or by which ipowerUpSoftware, LLC business may be bound.

 

v.

ipowerUpSoftware, LLC is the distributor of, and has all necessary right, authority and power to grant a Sub-License of the Concurrent Software to FEMATA.com, and to confer on FEMATA.com the necessary rights to grant Mirrored Sub-Licenses of the Concurrent Software to Network Distributors and others within the Network, all as set forth in this Agreement.  Furthermore, ipowerUpSoftware, LLC has all necessary rights, authority and power to setup and manage the “ipowerFEMATA.com” Concurrent Software Joint-Venture and to grant a Sub-License thereof in and to any entity so designated by its managing director, including to FEMATA.com as provided herein. The sub-licensing interface technologies and services and the Trademarks of ipowerUpSoftware, LLC and/or Star Link Investments, Inc are claimed, represented, asserted or reasonably inferred by ipowerUpSoftware, LLC, which has the right and authority to grant concurrent Sub-Licenses to use such Trademarks, and has not knowingly restricted or affected the rights granted to FEMATA.com hereunder.

 

vi.

ipowerUpSoftware, LLC has, to the best of its knowledge, complied in all material respects with all laws, regulations and orders applicable to ipowerUpSoftware, LLC’s business, its sub-licensing interface technologies and services, the Concurrent Software and its Trademarks, and has, to the best of its knowledge, all required authorizations, licenses, sub-licenses, certifications and permits relating thereto. ipowerUpSoftware, LLC has not received and has no knowledge of any notice(s) of violations of any of the foregoing.

 

vii.

There is not pending or, to the best of ipowerUpSoftware, LLC’s knowledge, a threatened civil suit, action, arbitration or legal proceeding, or governmental investigation, against or affecting ipowerUpSoftware, LLC, ipowerUpSoftware, LLC’s business, its sub-licensing interface technologies, the Concurrent Software or its Trademarks and/or parent companies.

 

viii.

ipowerUpSoftware, LLC is not authorized to and shall not act in the name of FEMATA.com or Star Link Investments, Inc without proper authorization.

 

ix.

ipowerUpSoftware, LLC shall have no power to bind FEMATA.com in any way.

 

x.

At no time shall any employee of ipowerUpSoftware, LLC be deemed to be an employee of FEMATA.com, nor shall FEMATA.com be accountable for any and all acts of such employees in any way.

 

xi.

ipowerUpSoftware, LLC shall promptly notify FEMATA.com of any changes in its management and/or majority ownership.

 

xii.

ipowerUpSoftware, LLC shall indemnify and hold harmless Star Link Investments, Inc, a Florida corporation, for any and all actions arising out of the Agreement.

 

c)

By FEMATA:

 

i.

FEMATA.com is a legal company duly organized, validly existing, and in good standing under the laws of Tanzania.

 

ii.

FEMATA.com has all necessary and requisite power and full authority from any and all applicable legal and/or governmental authorities to enter into and perform its obligations under this Agreement. This Agreement constitutes the legal, valid and binding obligation of FEMATA.com, enforceable against FEMATA.com in accordance with the Arbitration Terms herein.

 

iii.

The execution and delivery of this Agreement by FEMATA.com and the performance of all obligations of FEMATA.com hereunder have been duly authorized and approved by the appropriate members, managers, officers and/or executives of FEMATA.com. If requested by ipowerUpSoftware, LLC, FEMATA.com hereby agrees to deliver to ipowerUpSoftware, LLC within one (10) days of the Effective Date a duly executed incumbency certificate and a certified copy of the appropriate corporate resolutions of FEMATA.com authorizing FEMATA.com to consummate the transactions contemplated hereunder.

 

iv.

The execution, delivery or performance of this Agreement by FEMATA.com shall not conflict with any provision of the articles of organization, regulations, operating agreement and/or any other corporate agreement of or pertaining to FEMATA.com; violate any order, writ, injunction or decree of any court, administrative agency or governmental body; or constitute a default under any contract, mortgage, lease or any other agreement, regulation, law or code to which FEMATA.com is a party or by which FEMATA.com or FEMATA.com’s business may be bound.

 

v.

FEMATA.com is the owner of the entire right, title, and interest in and to the Developments and the Trademarks that are claimed, represented, asserted or reasonably inferred to be owned by FEMATA.com and has the sole right and authority to grant licenses or any right to use the FEMATA (aka FEMATA.com) name and/or such Developments and the Trademarks; and has not knowingly granted licenses or any other rights to the name that would conflict with and/or the Developments or to the Trademarks to any other Person that would restrict or affect the rights granted to ipowerUpSoftware, LLC hereunder.

 

vi.

FEMATA.com has, to the best of its knowledge, complied in all material respects with all laws, regulations and orders applicable to FEMATA.com’s business, its Union Activities and Developments and its Trademarks, and has, to the best of its knowledge, all required authorizations, licenses, certifications and permits relating thereto. FEMATA.com has not received and has no knowledge of any notice(s) of violations of any of the foregoing.

 

vii.

There is no pending, or to the best of FEMATA.com’s knowledge, threatened suit, action, arbitration or legal proceeding, or governmental investigation, against or affecting FEMATA.com, FEMATA.com’s business, its Union Activities and Developments or its Trademarks.

 

viii.

FEMATA.com is not authorized to and shall not act in the name of ipowerUpSoftware, LLC. Or on behalf of Star Link Investments, Inc.

 

ix.

FEMATA.com shall have no power to bind ipowerUpSoftware, LLC or Star Link Investments, Inc. in any way.

 

x.

At no time shall any employee of FEMATA.com be deemed to be an employee of ipowerUpSoftware, LLC, nor shall ipowerUpSoftware, LLC be accountable for any FEMATA.com employees in any way.

 

xi.

FEMATA.com shall promptly notify ipowerUpSoftware, LLC of any changes in its management and/or majority ownership.

 

xii.

 

c)

Survival of Representations and Warranties.   In addition to the survival of certain Sections of this Agreement as specifically provided herein, any and all indemnifications, covenants, representations and warranties made by any of the parties to this Agreement shall expressly and conclusively survive the expiration of the Commitment Period and any termination of this Agreement.

15.

Covenants.  Each of the parties hereto, hereby expressly and conclusively agrees not to make any representations or warranties whatsoever on behalf of any other party without their express written consent in connection with or relating to (i) the sub-licensing of the interface technologies; (ii) the Products and/or Mines; (iii) the Technologies and Developments of the other party; (iv) the Trademarks of the other party; (v) any other product or service to be provided by the other party; (vi) the management or operation of the business of the other party; or (vii) any other representation or warranty pertaining to this Agreement.

16.

Mutual Indemnifications.  Each of the parties hereto (for purposes of this paragraph, each an “Indemnification grantor”) hereby expressly, conclusively and irrevocably agrees to defend, indemnify, save and hold the other party, its agents, representatives, owners, directors, officers, executives and employees (collectively, the “Indemnified Parties”) free and harmless from and against any demand, claim, injury, loss, liability or expense, including attorneys’ fees (at all tribunal levels, and whether suit be brought or not), arising out of or in connection with or relating to (i) Indemnification grantor’s performance of the terms and conditions of this Agreement; (ii) the sub-licensing interface technologies; (iii) the Products; (iv) the Technologies and Developments of the Indemnification grantor; (v) the Trademarks of the Indemnification grantor; (v) the management, operation and/or business of the Indemnification grantor; (vi) any misrepresentation made or asserted by the Indemnification grantor relating to this Agreement; or (vii) any other wrongful or grossly negligent act committed by the Indemnification grantor.

17.

Confidential Information.  Each of the parties hereto hereby make the following additional representations and warranties to each other party concerning any Confidential Information disclosed in connection with the business finances, operations or affairs of each respective party, the overall layout system, the Concurrent Software, the Software, the Products or otherwise relating in any way to this Agreement:

 

a)

Any and all Confidential Information shall remain the sole and exclusive property of the owner of such Confidential Information.

 

b)

Each party to this Agreement receiving any Confidential Information of, from or concerning the other party agrees to hold all such Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party without the express and prior written consent of the owner of such Confidential Information.  Notwithstanding the foregoing, either party may disclose specific Confidential Information if compelled by a judicial or other governmental order and only then in strict accordance therewith, provided that reasonable written notice is given to the owner of the Confidential Information being disclosed prior to any such disclosure and such disclosing party shall comply with any applicable protective order or equivalent pertaining thereto.

 

c)

Each party hereto shall take all reasonable security precautions, at least as great as the precautions each takes to protect its own confidential information, to keep confidential the Confidential Information which, in the course of managing and operating its business, carrying-out the terms and conditions of this Agreement and/or providing the products and services as contemplated herein, is disclosed to any owner, director, officer, executive, employee, agent or representative of the such party.  Any such Confidential Information that is to be disclosed to any such owner, director, officer, executive, employee, agent or representative shall be strictly disclosed on a “need-to-know” basis only.  When applicable and/or appropriate, the disclosing party shall execute fully binding written agreements with such owner, director, officer, executive, employee, agent or representative sufficient to enable the disclosing party to comply with all of the provisions of this Agreement.

 

d)

Confidential Information may be disclosed, reproduced, summarized or distributed only if such action is authorized by the owner of such Confidential Information and done in pursuance of the business relationship and affairs contemplated hereby among the parties hereto. Each party hereto agrees to segregate all such Confidential Information from its own confidential information and that of others in order to prevent commingling.

 

e)

Upon the expiration or termination of this Agreement, all Confidential Information, including any copies, duplicates, variations or other versions thereof, in the possession of either party shall be immediately and forthwith returned to the owner of such Confidential Information.

19.

 

a)

Attorneys’ Fees. If there is any action (legal or equitable, as applicable) or proceeding between any of the parties hereto arising from or based on this Agreement, it shall be arbitrated in accordance with the recitals herein and that each party shall pay their own legal fees.

 

b)

Notices. All notices, elections and other communications under this Agreement shall be properly given only if made in writing and delivered to the address set forth below for the respective party: (i) by certified registered return receipt U.S. mail, (ii) by a major overnight courier service such as “FedEx” or (iii) by hand delivery.  Notices, elections and other communications shall be sent to the following:

 

c)

Governing Law and Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without reference to its conflicts of laws provisions.  The parties expressly consent to extraterritorial service of process and that venue is proper in Broward County, Florida.

 

d)

Disputes.  In the event of any disputes arising out of or in connection with the terms and conditions of this Agreement, the prevailing party shall be entitled to receive its costs including all legal fees through all arbitration, trial and appellate levels.  Notwithstanding the foregoing, it is understood and agreed by the parties hereto that all disputes arising out of or in connection with this Agreement shall be submitted to binding arbitration for resolution.  If the parties are unable to agree on the selection of the arbitrator(s), then ipowerUpSoftware, LLC shall select one (1) arbitrator and FEMATA.com shall select one (1) other arbitrator, which selections shall take place no later than fifteen (15) days after a claim of arbitration is filed by any party with the American Arbitration Association, Miami Office (the “Filing Date”) and the two (2) selected arbitrators shall mutually agree on the selection of a third arbitrator within thirty (30) days after the Filing Date.  If the two (2) selected arbitrators fail to agree on the selection of a third arbitrator within such period of time, then the director or other appointed representative of the American Arbitration Association, Miami Office, shall select the third arbitrator. The ruling of a majority of the selected arbitrator(s) (hereinafter collectively referred to as the “Arbitrator”) shall prevail and be deemed conclusive in and as to any dispute arising out of or in connection with this Agreement.  Any decision of the Arbitrator shall be final and binding upon the parties hereto and enforceable in any court of competent jurisdiction.

 

e)

Arbitration Provisions.  The following provisions shall otherwise apply to all arbitration proceedings initiated hereunder (a “Claim”):

 

i.

Notice of Claim.  A party asserting a Claim (the “Claimant”) shall deliver written notice to each party against whom the Claim is asserted (collectively, the “Opposing Party”), with a copy to any other parties required to receive copies of such notices as set forth under this Agreement (the “Additional Notice Parties”), specifying the nature of the Claim and requesting a meeting to resolve same.  The Additional Notice Parties shall be given reasonable notice of and invited to and permitted to attend any such meeting.  If no resolution is reached within ten (10) business days after delivery of such notice, the Claimant or the Opposing Party may, within forty-five (45) days after giving such notice, invoke the arbitration procedure provided herein by delivering to each Opposing Party and the Additional Notice Parties a Notice of Arbitration, which shall specify the Claim as to which arbitration is sought, the nature of the Claim, the basis for the Claim, and the nature and amount of any damages or other compensation or relief sought.  Each party agrees that no punitive damages may be sought or recovered in any arbitration, judicial proceeding or otherwise.  Failure to file a Notice of Arbitration within such forty-five (45) days shall constitute a waiver of any right to relief for the matters asserted in the notice of claim.  Any Claim shall be forever barred, and no relief may be thereafter sought, if written notice of such Claim is not made as provided above within one (1) year of the date such Claim accrues.

 

ii.

Documents.  Within thirty (30) days after the receipt of service in connection with a Notice of Arbitration, each party shall afford the other, or its counsel, with reasonable access to documents relating directly to the issues raised in the Notice of Arbitration.  All documents produced and all copies thereof shall be maintained as strictly confidential, shall be used for no purpose other than the arbitration hereunder, and shall be returned to the producing party upon completion of the arbitration.  There shall be no other discovery except that, if a reasonable need is shown, limited depositions may be allowed in the discretion of the Arbitrator, it being the expressed intention and agreement of each party to have the arbitration proceedings conducted and resolved as expeditiously, economically and fairly as reasonably practicable, and with the maximum degree of confidentiality.

 

iii.

Notice in connection with Arbitration.  All written communications regarding the proceeding sent to the Arbitrator shall be sent simultaneously to each party or its counsel, with a copy to the Additional Notice Parties.  Oral communications between any of the parties or their counsel and the Arbitrator shall be conducted only when all parties or their counsel are present and participating in the conversation.

 

iv.

Filings.  Within twenty (20) days after the selection of the Arbitrator, the Claimant shall submit to the Arbitrator a copy of the Notice of Arbitration, along with a supporting memorandum and any exhibits or other documents supporting the Claim.  Within twenty (20) days after receipt of the Claimant’s submission, the Opposing Party shall submit to the Arbitrator a memorandum supporting its position and any exhibits or other supporting documents.  If the Opposing Party fails to respond to any of the issues raised by the Claimant within twenty (20) days after receipt of the Claimant’s submission, then the Arbitrator may find for the Claimant on any such issue and bar any subsequent consideration of the matter.  Within twenty (20) days after receipt of the Opposing Party’s response, the Claimant may submit to the Arbitrator a reply to the Opposing Party’s response, or notification that no reply is forthcoming. Within ten (10) days after the latest submission as provided above, the Arbitrator shall notify the parties and the Additional Notice Parties of the date of the hearing on the issues raised by the Claim.  Scheduling of the hearing shall be within the sole discretion of the Arbitrator, but in no event more than thirty (30) days after the last submission by the parties, and shall take place at a mutually agreeable time and location within Miami-Dade County, Florida.  Both parties shall be granted substantially equal time to present evidence at the hearing.  The hearing shall not exceed one (1) business day, except for good cause shown. Within thirty (30) days after the conclusion of the hearing, the Arbitrator shall issue a written decision to be delivered to both parties and the Additional Notice Parties (the “Final Determination”).  The Final Determination shall address each issue disputed by the parties, state the Arbitrator’s findings and reasons therefore, and state the nature and amount of any damages, compensation or other relief awarded.  The award rendered by the Arbitrator shall be final and non-appealable and judgment may be entered upon it in accordance with applicable law in any and all such court(s) having jurisdiction thereof.

 

v.

Costs of Arbitration. As part of the Final Determination, the Arbitrator shall determine the allocation of the costs and expenses of the arbitration, including the Arbitrator’s fee and both parties’ attorneys’ fees and expenses, based upon the extent to which each party prevailed in the arbitration.  In the event that any relief which is awarded in non-monetary, then such costs and expenses shall be allocated in any manner as may be determined by the Arbitrator.

 

vi.

Satisfaction of Award.  If any party fails to pay the amount of the award, if any, assessed against such party within thirty (30) days after the delivery to such party of the Final Determination, the unpaid amount shall bear interest from the date of such delivery at the lesser of (i) the prime lending rate reported by the Wall Street Journal, and (ii) the maximum rate permitted by applicable law.  In addition, such party shall promptly reimburse the other party for any and all costs or expenses of any nature or kind whatsoever (including reasonable attorney’s fees) reasonably incurred in seeking to collect such award or to enforce any Final Determination.

 

vii.

Confidentiality of Proceedings.  The parties hereto agree that all of the arbitration proceedings provided for herein, including any notice of claim, the Notice of Arbitration, the submissions of the parties, and the Final Determination issued by the Arbitrator, shall be confidential and shall not be disclosed at any time to any Person, other than the parties hereto, their representatives, the Arbitrator and the Additional Notice Parties; provided that this provision shall not prevent the party prevailing in the arbitration from submitting the Final Determination to a court for the purpose of enforcing the award, subject to comparable confidentiality protections if the court agrees; and provided further that the foregoing shall not prohibit disclosure to the minimum extent reasonably necessary to comply with (i) applicable law (or requirement having the force of law), court order, judgment or decree, including, without limitation, disclosures which may be required pursuant to applicable securities laws, and (ii) the terms of contractual arrangements (such as financing arrangements) to which the Company or any Additional Notice Party may be subject so long as such contractual arrangements were not entered into for the primary purpose of permitting disclosure which would otherwise be prohibited hereunder.

 

f)

Effect of Partial Invalidity.  If any one or more of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been made a part hereof.

 

g)

Drafting.  Each of the parties hereto has jointly cooperated and participated in the negotiation, drafting and preparation of this Agreement, and each party’s legal counsel has had equal opportunity to fully review and examine this Agreement to their satisfaction.  Therefore, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no construction, presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any or all of the provisions of this Agreement.

 

h)

Assignment. This Agreement and the rights and obligations created hereunder shall not be assigned, sub-licensed or otherwise transferred by either party without the prior written consent of the other party.

 

i)

Counterparts.  This Agreement may be executed in any number of counterparts, any or all of which may contain the signatures of less than all of the parties, and all of which shall be construed together but as a single instrument, and facsimile counterparts hereof shall be effective for all purposes hereunder, including, without limitation, the execution hereof.

 

j)

Entire Agreement.  This Agreement, including any Exhibits, Schedules or addendum attached hereto, constitutes the entire agreement between the parties with respect to this subject matter and supersedes all previous proposals, negotiations, representations, writings, commitments and other communications, whether oral or written, between the parties.  All understandings and agreements heretofore made between the parties are merged in this Agreement.  There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution of this Agreement in effect between the parties.  No change, amendment or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto.

 

k)

Waiver. The waiver of any of the provisions of this Agreement by any of the parties hereto shall constitute a waiver of that provision, on that occasion only, and shall not, with respect to any other occasion, constitute a future waiver of such term or provision or a waiver of any other term or provision of this Agreement.

 

l)

Survival.  All of the indemnities, representations, warranties and covenants by the parties contained in this Agreement shall survive the termination of this Agreement.

 

m)

Terms.  All personal pronouns used in this Agreement shall include the other genders whether used in the masculine or feminine or neuter gender, and the singular shall include the plural whenever and as often as may be appropriate.

 

n)

Headings.  Section, paragraph, and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning in interpretation of this Agreement.

 

o)

Binding Agreement.  The terms, conditions, obligations, representations and warranties contained in this Agreement shall be binding upon and shall incur to the benefit of each of the parties hereto, their heirs, personal representatives or successors and assigns.