Pet Technologies, Inc. v. Jema Media, LLC et al

Filing 28

CONSENT JUDGMENT. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PET TECHNOLOGIES, INC.,
Plaintiff,

Case No. 2:14-cv-10902
Hon. Matthew F. Leitman

v.
JEMA MEDIA, LLC, et al.,
Defendants.
__________________________________________________________________/
CONSENT JUDGMENT
Plaintiff, PET TECHNOLOGIES, INC., and Defendants, JEMA MEDIA,
LLC, SERO MEDIA, LLC, and JEFFREY W. LONG, have settled the abovecaptioned action and request entry of this Consent Judgment.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1.

This Court has jurisdiction over the Parties to this Consent Judgment

and over the subject matter of the above-captioned action.
2.

Definitions.
(a)

As used in this Consent Judgment, “inMotion” shall mean and

include Plaintiff, Pet Technologies, Inc., in the above-captioned action.
(b)

As used in this Consent Judgment, “Jema” shall mean and

include Defendant, Jema Media, LLC, in the above-captioned action and, in the
event Jema Media, LLC, changes its legal name, that newly-named company.
1 

(c)

As used in this Consent Judgment, “Sero” shall mean and

include Defendant, Sero Media, LLC, in the above-captioned action and, in the
event Sero Media, LLC, changes its legal name, that newly-named company.
(d)

As used in this Consent Judgment, “Long” shall mean and

include Defendant, Jeffrey W. Long, in the above-captioned action.
(e)

As used in this Consent Judgment, “Parties” shall mean and

include Plaintiff, Pet Technologies, Inc., and Defendants, Jema Media, LLC, Sero
Media, LLC, and Jeffrey W. Long, in the above-captioned action.
(f)

As used in this Consent Judgment, “Defendants” shall mean

and include Defendants, Jema Media, LLC, Sero Media, LLC, and Jeffrey W.
Long, in the above-captioned action.
(g)

As used in this Consent Judgment, “Settlement Amount” shall

mean and include the sum total referenced in Paragraph 1 of the parties’
Confidential Settlement Agreement.
3.

In consideration of the premises and the mutual promises, covenants,

representations and warranties contained herein, payment of the full Settlement
Amount and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto, including their past and present
members, officers, agents, assigns, employees, consultants, servants, attorneys, and

2 

others acting or purporting to act of their behalf, intending to be legally bound by
the terms hereof, covenant and agree as follows:
(a)

inMotion is involved in developing, maintaining, and licensing

software for a scalable advertisement management platform, called the inClick Ad
Server (the “inClick Platform”).
(b)

On or before April 22, 2015, Jema and/or Sero paid to inMotion

the full Settlement Amount in accordance with Paragraph 1 of the parties’
Confidential Settlement Agreement.
(c)

The Source Code and Object Code License that inMotion and

Jema entered into on or about July 10, 2012, and which is the subject of inMotion’s
Count I against Jema for Breach of Contract, is terminated and replaced by the
software license terms contained in Paragraph 3(d) below.
(d)

inMotion hereby grants to Jema a limited, non-exclusive,

non-assignable, non-transferrable, non-sublicensable, royalty-free, perpetual
license: (1) to install the inClick Platform solely on a single domain only (the
“Jema Single Domain”); and (2) to prepare derivative works of the inClick
Platform solely for use by Jema on the Jema Single Domain. All other exclusive
rights belonging to inMotion under Section 106 of the Copyright Act of 1976,
17 U.S.C. § 101 et seq., including, without limitation, the right to distribute copies
of the inClick Platform to any party other than Jema by sale or other transfer of
3 

ownership, or by rental, lease, or lending, and to display the inClick Platform’s
code publicly, remain the exclusive rights of inMotion. As of the date of this
Consent Judgment, the Jema Single Domain is JemaMedia.com. Should Jema
elect to forever surrender and deactivate its then extant Jema Single Domain in
favor of a new single domain, Jema must first certify in writing to inMotion its
election in accordance with Paragraph 3(g), below, in order for the new single
domain to be considered the Jema Single Domain. Except as explicitly set forth
above, Jema is granted no right to install the inClick Platform on any domain other
than the Jema Single Domain or to prepare derivative works of the inClick
Platform for use on any domain other than the Jema Single Domain, whether or not
said domain(s) are also owned by Jema and/or Sero. In the event Jema breaches
any material provision of the license granted in this Paragraph 3(d), and provided
the breach can be remedied, does not remedy such breach within thirty (30) days
after receipt of written notice of such breach, inMotion may thereupon
immediately terminate said license.
(e)

inMotion hereby grants to Sero a limited, non-exclusive,

non-assignable, non-transferrable, non-sublicensable, royalty-free, perpetual
license: (1) to install the inClick Platform solely on a single domain only (the “Sero
Single Domain”); and (2) to prepare derivative works of the inClick Platform
solely for use by Sero on the Sero Single Domain. All other exclusive rights
4 

belonging to inMotion under Section 106 of the Copyright Act of 1976, 17 U.S.C.
§ 101 et seq., including, without limitation, the right to distribute copies of the
inClick Platform to any party other than Sero by sale or other transfer of
ownership, or by rental, lease, or lending, and to display the inClick Platform’s
code publicly, remain the exclusive rights of inMotion. As of the date of this
Consent Judgment, the Sero Single Domain is SeroAds.com. Should Sero elect to
forever surrender and deactivate its then extant Sero Single Domain in favor of a
new single domain, Sero must first certify in writing to inMotion its election in
accordance with Paragraph 3(g), below, in order for the new single domain to be
considered the Sero Single Domain. Except as explicitly set forth above, Sero is
granted no right to install the inClick Platform on any domain other than the Sero
Single Domain or to prepare derivative works of the inClick Platform for use on
any domain other than the Sero Single Domain, whether or not said domain(s) are
also owned by Jema and/or Sero.

In the event Sero breaches any material

provision of the license granted in this Paragraph 3(e), and provided the breach can
be remedied, does not remedy such breach within thirty (30) days after receipt of
written notice of such breach, inMotion may thereupon immediately terminate said
license.

5 

(f)

Within five (5) days of the filing of this Consent Judgment,

inMotion shall dismiss with prejudice and with each Party bearing its own
respective costs and fees, inMotion’s Amended Complaint [Dkt. 21] against
Defendants in the above-captioned action, including all five (5) Counts pled by
inMotion therein.

By entering into this Consent Judgment, no Defendant is

making an admission of liability with respect to any of the five (5) Counts pled in
inMotion’s Amended Complaint [Dkt. 21].
(g)

Any notice or certification which under the terms of this

Consent Judgment must be given to a Party shall be in writing and delivered
personally or by nationally recognized overnight courier service or by U.S.
certified mail, postage prepaid, return receipt requested, or by facsimile or e-mail,
addressed to the Party as set forth below. Such notice or certification shall be
deemed to have been given or made upon receipt if delivered personally, one
business day following delivery to the overnight courier service if delivered by
overnight courier service and three business days following mailing if delivered by
certified mail. Any notice or certification delivered by facsimile or e-mail shall be
deemed to be given on the date that transmission is received in its entirety in
legible form, it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the sender’s

6 

facsimile machine or an automated notice returned to the sender upon the opening
by noticed Party of e-mail.
For notice to inMotion:
Pet Technologies, Inc.
18068 Humber Bridge Drive
Macomb, Michigan 48042
Attention: Irvine Pascual
[e-mail]
fax: [phone]
For notice to Jema:
Jema Media, LLC
7363 E. Adobe Dr. # 115
Scottsdale, AZ 85255
Attention: Jeffrey W. Long
[e-mail]
fax: [phone]
For notice to Sero:
Sero Media, LLC
7363 E. Adobe Dr. # 115
Scottsdale, AZ 85255
Attention: Jeffrey W. Long
[e-mail]
fax: [phone]

(h)

Defendant Jeffrey W. Long acknowledges and agrees that he

has the capacity to execute this Consent Judgment on behalf of, and thereby legally
bind, both Jema and Sero.

7 

(i)

Irvine Pascual acknowledges and agrees that he has the capacity

to execute this Consent Judgment on behalf of, and thereby legally bind, inMotion.
(j)

To the extent permitted by law, this Court retains jurisdiction

over this matter as necessary to enforce the terms of this Consent Judgment.
(k)

This Consent Judgment is a Final Judgment with respect to all

matters pled in inMotion’s Amended Complaint [Dkt. 21].
(l)

The Parties hereto agree to waive any right to appeal from this

Consent Judgment or to challenge it in any way.
IT IS SO ORDERED.
/s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2015

8 

AGREED AS TO FORM AND ENTRY:
SEE ATTACHED SIGNATURE PAGE SEE ATTACHED SIGNATURE PAGE

Irvine Pascual, Vice President of
Pet Technologies, Inc.

Jeffrey W. Long, Chief Executive
Officer of Jema Media, LLC

Dated: _____________, 2015

Dated: _____________, 2015

On Behalf of Pet Technologies, Inc.

On Behalf of Jema Media, LLC

SEE ATTACHED SIGNATURE PAGE SEE ATTACHED SIGNATURE PAGE

Jeffrey W. Long, Chief Executive
Officer of Sero Media, LLC

Jeffrey W. Long, Individually
Dated: _____________, 2015

Dated: _____________, 2015
On His Own Behalf
On Behalf of Sero Media, LLC

FISHMAN, STEWART & YAMAGUCHI, PLLC
/s/ Thomas A. Hallin
Thomas A. Hallin (P29740)
Douglas P. Lalone (P45751)
Krista M. Hosmer (P68939)
39533 Woodward Ave., Suite 250
Bloomfield Hills, MI 48304
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
9