RealMedia Architecture Partner Program Agreement with Digital Lava, Inc.
for Corporate Intranet Products and Internet Products
This Agreement is entered into as of April 1, 1998 (the "Effective Date") by and
between Real Networks, Inc., a Washington corporation with a principal place of
business at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 ("RN") and
Digital Lava, Inc., a Delaware corporation with an address at 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000 ("Partner").
WHEREAS, RN has developed and owns all right, title and interest in the
RealMedia Architecture ("RMA", as further defined below), an open platform for
development of streaming media applications and tools, which allows software
developers to build new applications and extend current applications to
inter-operate with a wide variety of datatypes;
WHEREAS, RN has established a licensing program (the "Partner Program") which
would allow a partner participating in the Partner Program to create, market and
sublicense for distribution in corporate intranets and the internet,
applications based on RMA, and to receive other benefits of participating in the
Partner Program; and
WHEREAS, Partner desires to participate in the Partner Program and to receive
the attendant rights and benefits;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 License Key" means the authorization code that is generated by the License
Key Tool and that enables RMA Server Software to stream RealMedia datatypes.
License Keys that generate User-Streams and enable features of a Partner Product
are licensed to a Partner's end-user customers
1.2 "License Key Tool" means the version of the License Key Tool that is
provided to Partner by RN which is specific and unique to the Partner Product.
The License Key Tool is used to generate unique License Keys for a Partner
Product.
1.3 "Licensed Software" means RMA Players, the RealMedia SDK, including
associated RealMedia Libraries, RMA Server Software, in Object Code and/or
Source Code form, as applicable, License Key Tools and License Keys, and related
User Documentation and specifications.
1.4 "New Release" means a new major release of the RMA Servers or the Partner
Products in which major new
functionality has been added in addition to any complement of bug fixes
supplied, and which is designated as a change in the digit to the left of the
decimal point in the product version number [(x).x.x]. "Update" means a minor
release, enhancement, revision, modification or upgrade of the RMA Servers or
Partner Products, designated as a change in the tenths digit in the product
version number [x.(x).x], or in the digit to the right of the tenths digit in
the product version number [x.x.(x)]. By way of clarification, if either party
markets a new and distinct product along with and in addition to an existing
program, then such new and distinct product shall be treated as a New Release,
not an Update.
1.5 "Object Code" means computer code assembled or compiled in magnetic binary
form on software media, which are readable and useable by machines, but not
generally readable by humans without reverse-engineering, reverse-compiling or
reverse-assembly.
1.6 "Partner Product(s)" means the products and applications developed by
Partner which are compatible with Licensed Software, as further described on
Exhibit A hereto. Partner Products shall include:
(a) "Partner Client Software," which means software that contains an RMA Player
as defined in Section 1.7(a), or that utilizes the RMA application programming
interfaces ("APIs");
(b) "Digital Lava Client Software" which means the products listed in Exhibit A
which incorporate the custom COM-component being built by RN under contract to
Partner;
(c) "Partner Tools," which means software tools that may import datatypes and
export datatypes using the RealMedia Libraries; and/or that are used to perform
RMA-related functions including, but not limited to, server administration,
plug-in file systems, server monitoring, and assembly; and
(d) "Partner Server Applications," which means software that interfaces with an
RMA Server and adds datatypes that can be streamed from an RMA Server.
1.7 "RealMedia Architecture" or "RMA' means the software platform developed by
RN that allows for the development of streaming media products and tools, and
which is designed specifically for use in the infrastructure of the internet and
corporate intranets. RMA includes the following components:
(a) "RMA Players," which are stand-alone applications that use an RMA Server or
any components of the RMA Player embedded in other applications of Partner that
play media files.
(b) "RealMedia Datatypes," which are datatypes that can be streamed using RMA
Server APIs and played using RMA Player APIs.
(c) "RealMedia Libraries," which are contained in the RealMedia SDK and are
Object Code implementations of various APIs.
(d) "RealMedia SDK" or "SDK," which contains the tools and information used by
software developers to create tools for use in producing streaming media and to
adapt or build applications that stream from RMA Servers and play in RMA
Players. The SDK contains an RMA Player, RMA Player APIs, Server APIs, RealMedia
Libraries, Sample Source Code and RealMedia Server Software.
(e) "RMA Server Software" or "RMA Server" in Object Code form, which streams
files over networks, and which has the capabilities set forth on Exhibit B
hereto.
(f) "Sample Source Code," which provides an example of how to develop an RMA
application.
1.8 "RN Products" means the RealAudio and RealVideo intranet and internet
products.
1.9 "Term" is defined in Section 6.1.
1.10 "Territory" means the world, except as otherwise agreed by the parties.
1.11 "User Documentation" means RN's user manuals, technical manuals, release
notes including advertisements for XXX Xxxxxxx, XXX Players, installation and
operation instructions, and other data and documentation describing the use of
RMA Servers and RMA Players normally supplied to RN's customers.
1.12 "User-Stream" means the stream of media-compatible data necessary to
deliver the media type associated with a Partner Product from an RMA Server to a
single end-user client computer. The number of User-Streams being delivered by a
given RMA Server is measured by counting the number of end-users simultaneously
served by User-Streams originating at that RMA Server.
2. GRANT OF LICENSES AND DISTRIBUTION RIGHTS.
2.1 License Grants to Partner.
(a) License to Use Real Media SDK to customize Partner Products for use with
Licensed Products. Subject to the terms and conditions of this Agreement, RN
grants to Partner a non-exclusive, non-assignable license to use and install the
RealMedia SDK, whether in Object Code or Source Code form, for the sole purpose
of developing Partner Products that interoperate with Licensed Products. Partner
shall use the SDK on a single computer
or on a computer network. Partner may download associated online documentation
for purposes of using the SDK, but may not make further copies of the
documentation.
(b) License to Distribute Certain Products to Corporate lntranet Customers Only.
(i) License to Distribute Partner Products. Subject to the terms and
conditions of this Agreement, and payment of the applicable License Fees
set forth in Section 5.1, RN grants Partner a non-exclusive, non-assignable
license to market, sublicense, promote and distribute, to end-user
corporate customers only, directly or through authorized distributors who
have agreed to comply with the terms and conditions of this Agreement
("Authorized Distributors"), the version of Partner Products containing any
Licensed Software. The license to any such end-user corporate customer is
limited to such customer's intranet purposes only, and is subject to such
end-user corporate customer signing a XXXX as defined in Section 2.3 (b).
(ii) License to Use and Sublicense the Licensed Software. Subject to
the terms and conditions of this Agreement, and payment of the applicable
License Fees set forth in Section 5.1, RN also grants Partner a
non-exclusive, non-assignable license to market, sublicense, promote and
distribute, to end-user corporate customers only, directly or through
Authorized Distributors, pursuant to an executed XXXX as defined in Section
2.3(b), only Object Code copies of the Licensed Software, and only in
combination with Partner Products, for such customers' intranet purposes
only.
(iii) License to Use and Sublicense the RealAudio and/or RealVideo
Intranet Products. Subject to the terms and conditions of this Agreement,
and payment of the applicable License Fees set forth in Section 5.1, RN
also grants Partner a non-exclusive, non-assignable license to market,
sublicense, promote, and distribute the RealVideo intranet products, to
end-user corporate customers only, directly or through Authorized
Distributors, for such customers' intranet purposes only, and only in
combination with the Partner Products.
(c) License to Distribute RealVideo and RealAudio Internet Products. Subject to
the terms and conditions of this Agreement, and payment of the applicable
License Fees set forth in Section 5.1, RN also grants to Partner a
non-exclusive, non-assignable license to market, sublicense, promote, and
distribute, to internet web site customers, directly or through Authorized
Distributors, and only in combination with the Partner Products, the RealAudio
and/or RealVideo internet products, without the RMA Player.
(d) License to Display an RMA Server. RN grants to Partner and its Authorized
Distributors the non-exclusive, royalty-free right to license and publicly
display an RMA Server with 10 streams for the purpose of: 1) internal
development and testing, 2) demonstration; and 3) marketing.
2.2 License Grant to RN. License to Use Partner Tools, Partner Client Software
and
Partner Server Applications; License to Use and Distribute the Partner Products.
Partner hereby grants RN a non-exclusive, royalty-free license to use and
publicly display the Partner Tools, Partner Client Software, and Partner Server
Applications for internal testing, demonstration and marketing purposes.
2.3 Limitations. The grant of licenses, including Partner's right to sublicense
and distribute the Licensed Software and the RN Products as set forth above, are
subject to the following limitations:
(a) Except as provided in Section 2.1(b), the SDK may be used solely to develop
and test a Partner Product. It may not be used for any commercial,
non-commercial, educational or internal purpose, and may not be used in any way
that allows or causes the transmission of audio, video or other media files
across the Internet an intranet, or any computer network, unless the parties
otherwise agree.
(b) As a condition of receiving the sublicense from Partner to use and/or
distribute any of the Licensed Software and/or RN Products, Partner shall
require its Authorized Distributors and end-user customers to sign RN's standard
end-user License Agreement ("XXXX"), which is contained in RN's product
packaging. The license granted in such XXXX shall be between RN and Partner's
end-users and/or Authorized Distributors. Accordingly, Partner agrees that it
shall promptly provide to RN the names and addresses of all end-users and
Authorized Distributors to whom Partner distributes any Licensed Software or RN
Products, concurrently with the provision of monthly reports, as set forth in
Section 5.2.
(c) Except as expressly provided herein, Partner shall not directly or
indirectly, or allow third parties to, copy, modify, reproduce, display,
decompile, reverse engineer, disassemble, store, translate, sublicense, assign,
sell, lease or otherwise transfer or distribute any of the Licensed Software
(which includes the SDK and components of the Licensed Software) or RN Products,
or any of Partner's rights therein, in whole or in part, nor may Partner use any
of the Licensed Software or RN Products, to clone any client, server or other RN
product. Except as expressly provided herein, no license or right is hereby
granted, by implication or otherwise, with respect to the Licensed Software or
any other RN Products or any rights thereto.
(d) Nothing contained in this Agreement shall be deemed or construed to grant
Partner the exclusive right to develop, or have distributed by RN, Partner
Products for any particular category of datatypes.
(e) Partner's end-user license agreements for the Partner Products shall
prohibit further distribution of the RMA Libraries, any RMA files or other
components of RMA by Partner's end-users.
(f) Partner shall include a prominent and valid copyright notice, in the form
requested by RN, in RMA-Compatible Partner Products specifying that components
of such
products are owned by and used under license from RN and its suppliers. Partner
shall not alter or remove any copyright or trademark notices contained in any
Licensed Software, RN Products, or User Documentation or use such copyright or
trademark notices in combination with any other copyright or trademark notices.
In addition, Partner shall prominently display RN's "RMA logo" and the words
"RMA Compatible" on the product packaging and all product manuals and
documentation, in accordance with any Trademark Usage Guidelines provided by RN.
(g) Partner may only distribute Partner Products that have been designed,
developed, and tested to function with an RMA Server. In creating the Partner
Products, Partner shall ensure that such Partner Products will enable any
datatypes to be played in the RMA Player. To ensure that all components of the
Partner Products interoperate properly and are compatible with the RMA Server,
RN may elect to test the Partner Products (excluding 1.6b), or, at RN's option,
will have the Partner Products (excluding 1.6b) tested by a third party testing
lab at Partner's expense. RN shall provide development support to Partner to aid
in Partner's resolution of problems discovered in the testing process, as set
forth in Section 4.1.
(h) Partner agrees to promptly deliver to RN all releases, including beta
releases, of its Partner Products, for use by RN.
(i) Partner or its Authorized Distributors shall market, sublicense and
distribute Object Code copies only of the RMA Server Software or RMA Player
Software and User Documentation to end-user corporate customers for their
internal corporate intranet use only either as (i) bundled with a Partner
Product on the same media (such as CD-ROM or diskette), or (ii) in the same
finished packaging as the Partner Product (a "Bundle").
(j) Partner shall generate License Keys with an authorized, RN-provided License
Key Tool, and duplicate, market and distribute License Keys associated with
Partner Products to end-user customers.
(k) Partner will determine the price at which it or its Authorized Distributors
will license and distribute the Partner Products, RMA Server Software and
License Keys to end-user customers, independent of any License Fee payable by
Partner to RN.
(l) Partner may either: (i) download RMA Servers from a private RN download
site; or (ii) place an order with RN for physical pre-packaged copies of the RMA
Servers. RN will ship all physical product to Partner or Partner's authorized
designee, by shipment method specified by Partner. All orders are shipped F.O.B.
RN's designated fulfillment location. As a convenience, RN may prepay freight
charges, and such charges will be billed to Partner. All risk of loss or damage
in transit will be borne by Partner. Partner shall inspect the RMA Servers upon
receipt at the delivery location. Acceptance shall be deemed to occur unless
Partner provides RN with notice of nonacceptance within three
(3) days of receipt. A Partner may only reject an RMA Server for one of the
following reasons: (i) missing labels or User Documentation, (ii) defective
media, performance.
(m) Partner will deposit with Data Securities International, Inc. (the "Escrow
Agent", a complete and correct set of the Source and Object Code version of the
Partner Products (excluding 1.6b) to be held in escrow (the "Escrow Products")
and shall enter into the Escrow Agent's Master Preferred escrow agreement,
pursuant to which RN shall have the right to require that the Escrow Agent
provide some or all of the Escrow Products to RN or third parties if so required
by a governmental agency or court with jurisdiction over RN; in the event that
Partner undertakes or is subject to any of the actions set forth in Section
6.2(b); or in the event of Partner's material breach of this Agreement. Partner
shall pay any required escrow fee directly to the Escrow Agent.
(n) If Partner or its Authorized Distributors distributes the RMA Server
Software as part of a Bundle, RN's "RMA logo" and the words "RMA Compatible"
shall be prominently displayed on the product packaging and all product manuals
and documentation, in accordance with any Trademark Usage Guidelines provided by
RN.
(o) During the Term, Partner shall make available to RN at no charge, upon
release by Partner, a copy of all Updates and New Releases to the Partner
Products. Each Update or New Release shall, upon release by Partner, be subject
to all of the terms and conditions of the Agreement.
3. MARKETING CONSIDERATIONS
In consideration for participating in the Partner Program, and subject to the
terms and conditions of this Agreement, Partner shall be entitled to receive the
following marketing considerations from RN:
3.1 Trademark License. Partner shall have a non-exclusive non-transferable
license to use RN's trademarks and logos solely in connection with Partner's
user interfaces, packaging, collateral material and website, subject to
compliance with RN's Trademark Usage Guidelines, or as otherwise designated in
writing by RN from time to time. Partner agrees to furnish RN with samples of
any proposed usage of RN's trademarks or logos, and obtain RN's prior approval
for such usage, which approval will not be unreasonably withheld.
3.2 *****1
3.3 Participation in RN Events. RN agrees to feature Partner in the Partner Lab
at RN's RealMedia user conference. From time to time, RN will also include
Partner in RN press releases, and offer Partner the opportunity to participate
in trade shows and
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conference displays as XX xxxxx appropriate.
3.4 Real Developer Program. RN will provide partner a complimentary membership
in the Real Developers program at the "Apps Developer" level for one year from
the Effective Date.
3.5 *****(1)
3.6 No Obligation to Include Partner Products. RN shall not be obligated to
include the Partner Client Software in any special versions of the RMA Player
provided to an RN-third party licensee if such licensee will not accept the
Partner Client Software.
4. SOFTWARE SUPPORT; UPGRADES
4.1 Development Support. RN shall provide complimentary technical support to
Partner in connection with Real Developers program for ninety (90) days from the
Effective Date. Such support includes unlimited telephone support and priority
e-mail support, *****(1)
4.2 Technical Support by Partner. Partner shall be solely responsible for
providing, and agrees that it will provide, all technical and customer support
for any Partner Products licensed by Partner or for any Partner Products
licensed and distributed by RN pursuant to Section 2.2. Partner agrees that it
will provide primary technical and customer support, by telephone and e-mail and
in accordance with RN's minimum support requirements, for any Licensed Software
(excluding the RN Products which are subject to Section 4.3), licensed and
distributed by or for Partner pursuant to Section 2.1. RN will enroll Partner,
without charge, in a one-day RealMedia technical training seminar at RN's
facilities, to train Partner to provide technical support to its end-user
customers for the Licensed Software, excluding the RN Products. Partner shall be
responsible for all out-of-pocket costs it incurs to attend such seminar. RN
shall provide back-up technical support, in the form of telephone and e-mail,
from 8:00 A.M. to 5:00 P.M. PST Monday through Friday to Partner's primary
support contact for the Licensed Software, excluding the RN Products.
4.3 Technical Support by RN. RN will be solely responsible for providing
technical and customer support to those end-user customers to whom Partner has
licensed and distributed any RN Products pursuant to Section 2.1, in accordance
with the terms and conditions of a separate support agreement between RN and
each such end-user customer.
4.4 Updates; New Release. During the Term, each party shall make available to
the other party at no charge, upon public release by the party that created such
Updates
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and/or New Releases, a copy of all corresponding Updates or New Releases, on the
RN or Partner website, as applicable. Each Update or New Release, upon release
to either Partner or RN, shall be subject to all of the terms and conditions of
the Agreement.
5. PAYMENT
5.1(a) License Fees Paid by Partner. In consideration of the rights and licenses
granted herein, Partner agrees to pay RN certain license fees as follows:
(1) Partner shall pay RN the applicable license fees as set forth in
Schedules I and 2 ("License Fees").
(2) *****(1)
(3) RN reserves the right to revise the License Fees set forth above
within thirty (30) days of the start of each calendar year and again upon
the commercial release of each New Release. RN shall provide Partner thirty
(30) days' written notice of any change in the License Fee.
5.2 Payment Terms. Partner will provide RN with a written report by the 20th day
of each month for the preceding calendar month setting forth: (a) the number of
RMA Servers distributed; (b) the number of Partner clients distributed; (c) the
names and address to whom the RMA Servers and/or RealAudio and/or RealVideo
products were distributed; (d) the number of Partner Products distributed; (e)
the number of License Keys distributed; (f) the number of RealAudio and/or
RealVideo products distributed; (g) the type and number of any other RMA-based
products or related licenses distributed; (h) the price per unit charged for
each of the foregoing; (i) gross revenue receivable by Partner (whether or not
actually collected); and (j) the amount due to RN pursuant to Section 5.1 for
the preceding month. The report shall be accompanied by the payment due.
Payments shall be calculated based on sales invoiced by Partner and its
Authorized Distributors, whether or not the revenue is actually collected. All
payments due hereunder shall be made in United States Dollars, without
withholding or offset of any kind. Interest shall accrue on all amounts past due
hereunder at the monthly rate of one and one-half percent (1.5%) or at the
maximum legal rate, whichever is less.
5.3 Books and Records. Partner shall keep books of account with respect to the
amounts due and the calculations required to be made under Section 5.1. Upon
RN's reasonable written request, and no more than once per year of the Term, RN
may audit and inspect all such books of account, through an independent third
party auditor and during normal business hours, provided that such auditor shall
undertake in writing to protect the confidentiality of the business data and
records of Partner. The cost of any
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such audit shall be paid by RN; provided, however, that in the event RN
initiates an audit under this Section 5.3 and it is finally determined that the
amount reported and paid by Partner pursuant to Section 5.1 for the period(s)
audited is, in the aggregate, less than ninety-five per cent (95%) of the
aggregate amount actually due, then Partner shall pay the reasonable costs and
expenses of said audit. If any such audit reveals an underpayment of license
fees, Partner shall make any correcting payment within thirty (30) days. Any
underpayment shall be subject to interest of one and one-half percent (1.5%) per
month or the maximum amount allowed by law, whichever is less. Partner will
maintain the books and records to each reporting period for at least three years
following the close of such period
6. TERM AND TERMINATION
6.1 Term. This Agreement shall commence as of the Effective Date, and terminate
on the earlier of *****(1) from the Effective Date (the "Term"), unless earlier
terminated as provided herein. This Term shall automatically be extended for
additional one year periods (each a "Renewal Term") unless either party notifies
the other of its election not to so extend this Agreement no later than 90 days
prior to the end of the Term or a Renewal Term.
6.2 Termination by Either Party. Either party may terminate this Agreement
immediately upon written notice to the other party in the event of any of the
following:
(a) should the other party fail to perform any material term or
condition of this Agreement, which shall constitute a default of this
Agreement, and such default has not been corrected within thirty (30) days
of written notice from the non-breaching party. In the event of a breach of
Section 9 no cure period need be provided.
(b) should the other party (i) make a general assignment for the
benefit of creditors; (ii)institute proceedings to be adjudicated a
voluntary bankrupt, or consent to the filing of a petition of bankruptcy
against it; (iii) be adjudicated by a court of competent jurisdiction as
being bankrupt or insolvent; (iv) seek reorganization under any bankruptcy
act, or consent to the filing of a petition seeking such reorganization; or
(v) have a decree entered against it by a court of competent jurisdiction
appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in
insolvency covering all or substantially all of such party's property or
providing for the liquidation of such party's property or business affairs.
6.3 Termination by RN. RN may terminate this Agreement immediately upon written
notice to Partner in the event of any of the following:
(a) any attempted transfer or assignment of this Agreement or any
right or
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obligation hereunder, or any sale, transfer, relinquishment, voluntary or
involuntary, by operation of law or otherwise, of any interest in the direct or
indirect ownership or control of Partner without RN's prior written approval;
(b) any failure of Partner to pay, when due, any indebtedness owing by
Partner to RN, unless expressly waived in writing by RN.
6.4 Effect of Termination.
(a) Upon the effective date of termination of this Agreement for a
material breach by Partner, the licenses granted hereunder shall terminate
immediately. Partner will either immediately return all Licensed Software
to RN or certify in writing to RN that all copies of all Licensed Software
have been destroyed. RN may discontinue promotion and distribution of
Partner Products or continue to distribute Partner Products during the
Sell-Off Period, set forth in Section 6.4(b), at its sole discretion.
Notwithstanding anything in this Agreement to the contrary, under no
circumstances may Partner distribute Partner Client Software after the
expiration or termination of this Agreement, for any reason, without RN's
express written consent.
(b) For two (2) months after the expiration or termination of this
Agreement other than by reason of Partner's material breach ("Sell-Off
Period"), Partner may advertise and sell the Partner Products, Licensed
Software, or RN Products, in its inventory or necessary to fulfill orders
confirmed as of the expiration or termination date, and shall pay License
Fees and render statements in the same manner as during the Term. After the
end of the Sell-Off Period, Partner shall return to RN, at Partner's
expense, all copies of the Partner Products, Licensed Software and RN
Products, or RN may instruct Partner to destroy them. Partner shall furnish
RN with affidavits certified by an officer of Partner attesting to such
destruction.
(c ) Any termination of this Agreement shall not release Partner from
paying any amount that may then be owing to RN, or that may become due to
RN in the future.
(d) Notwithstanding any other terms or conditions of the Agreement,
the rights of end-user customers to use any Licensed Software, RN Products
and/or Partner Products distributed by Partner shall survive any
termination or expiration of the Agreement, provided that License Fees for
said Licensed Software or RN Products or Partner Products have been paid to
RN.
7. CONFIDENTIALITY
"Confidential Information" means any trade secret information or information
otherwise designated by a party as being confidential relating to either party's
products, product
plans, designs, computer code, technical information, costs, pricing, financing,
marketing plans, business opportunities, personnel, research and development or
know-how. Confidential Information shall not include information that (i) is or
becomes generally known or available through no fault of the receiving party,
(ii) was known by or disclosed to the receiving party prior to disclosure, (iii)
is independently developed by the receiving party, or (iv) is made generally
available by the disclosing party without any restriction. The parties shall use
reasonable efforts and at least the same care that each uses to protect its own
Confidential Information of like importance, to prevent unauthorized
dissemination or disclosure of the other party's confidential information during
and for three (3) years following the last day of the Term. Neither party will
use the other's Confidential Information for purposes other than those necessary
to directly further the purposes of this Agreement. Neither party will disclose
to third parties the other's Confidential Information without the prior written
consent of the other party, provided, however, that nothing will preclude a
party from making disclosure to a third party for the purpose of due diligence
in a financing transaction, merger, acquisition, business combination or other
similar transaction, or from making any disclosures to any governmental agency
having jurisdiction over the disclosing party, or unless otherwise required by
law, government order or court proceeding. Each party shall return the
Confidential Information to the other party upon termination of the Agreement or
upon the request of the other party. Except as expressly provided in this
Agreement, no ownership or license right is granted in any Confidential
Information.
8. PROPRIETARY RIGHTS
8.1 Partner. Partner shall retain all right, title and interest in and to the
Partner Products, including any copyright, trademarks, patent, trade secret, or
other intellectual property rights therein, subject to RN's underlying ownership
in any Licensed Software or RN Products included therein, and in and to Partner
Confidential Information, regardless of the media or form on or in which the
Partner Products or Partner Confidential Information, or copies thereof, may
exist. Notwithstanding the foregoing, Partner agrees that it shall not register
or attempt to register any copyrights or trademarks, or to seek to obtain any
patents in connection with any Partner Product, including, but not limited to,
in any device, process, method, function or invention included therein or
necessary for the operation thereof, which would in any way interfere with,
limit or prohibit RN's continued use, development or ownership of RMA.
8.2 RN. RN shall retain all right, title and interest in and to the Licensed
Software and RN Products, including any copyright, trademarks, patent, trade
secret, or other intellectual property rights therein, all RN trademarks and in
and to all RN Confidential Information, regardless of the media or form on or in
which the Licensed Software, the RN Products, or the RN Confidential
Information, or copies thereof, may exist. Partner acknowledges and agrees that
the Licensed Software and the RN Products are proprietary to RN, and is
protected by the copyright laws of the United States and international copyright
treaties. Unauthorized copying of the Licensed Software, or the RN Products,
including modification, merger or inclusion with any other software or products,
is expressly forbidden. Partner shall not be deemed, by anything contained in or
done pursuant to this Agreement, including by implication, to acquire any right,
title or interest in any trademark, copyright, patent or other intellectual
property of RN, and shall do nothing to prejudice the value or validity of RN's
rights therein or ownership thereof.
9. LIMITED WARRANTY
9.1 Limited Warranty. RN warrants, solely for the benefit of Partner, that for a
period of ninety (90) days from the date of delivery to Partner: (i) the
Licensed Software, if operated as directed, will substantially achieve the
functionality described in the User Documentation, and (ii) that the media
containing the Licensed Software, if provided by RN, is free in material
respects from defects in material and workmanship; provided, however, that the
foregoing warranty is expressly contingent (and shall be otherwise void) upon:
(1) the use of the Licensed Software strictly in accordance with the
instructions and User Documentation therefor; (2) the absence of misuse or
damage thereto; (3) the absence of any alteration or modification thereto; and
(4) Partner's acceptance of Licensed Software for distribution with knowledge
that the media upon which the Licensed Software are reproduced by Partner may
contain certain defects. RN makes no representation or warranty that the
information or functions contained in the Licensed Software will meet Partner's
requirements or that the use or operation of the Licensed Software will be
uninterrupted, error free or secure, or that any Licensed Software defects are
correctable or will be corrected. THE FOREGOING WARRANTY SHALL NOT APPLY TO THE
SAMPLE SOURCE CODE, WHICH IS PROVIDED TO PARTNER AS IS, WITHOUT WARRANTY OF ANY
KIND.
9.2 NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RN
AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS
FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED, WITH REGARD TO THE
LICENSED SOFTWARE, THE RN PRODUCTS, AND THE USER DOCUMENTATION. THIS LIMITED
WARRANTY GIVES PARTNER SPECIFIC LEGAL RIGHTS. PARTNER MAY HAVE OTHERS, WHICH
VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
9.3 Remedies. RN's entire liability and Partner's exclusive remedy for any
breach of the limited warranty set forth in Section 9.1 shall be, in RN's sole
discretion: (i) to exercise reasonable efforts to replace in a timely manner,
defective media provided by RN to Partner, or defective media that is
sublicensed by Partner to a Partner's end-user corporate customer pursuant to
Section 2.1; or (ii) to advise Partner or Partner's corporate end-user, within a
reasonable period of time after notice is received from Partner of the defect,
how to achieve substantially the same functionality with the Licensed Software
as
described in the User Documentation through a procedure different from that set
forth in the User Documentation. Repaired, corrected or replaced Licensed
Software and User Documentation shall be covered by this limited warranty for
the period remaining under the warranty that covered the original Licensed
Software, or if longer, for thirty (30) days after the date RN either shipped to
Partner the repaired or replaced Licensed Software or RN advised Partner as to
how to operate the Licensed Software so as to achieve the functionality
described in the Documentation, whichever is applicable.
10. INDEMNIFICATION
10.1 *****(1)
10.2 Partner Indemnification. Partner shall defend RN and its directors,
officers, agents, employees and representatives, in any third party action for
infringement by, or alleged infringement by the Partner Products of any
trademark, service xxxx, patent, copyright, or misappropriation of any trade
secret by the Partner Products, and will pay any final judgments awarded or
settlements entered into in any such action. RN agrees that it shall notify
Partner of all threats, claims and proceedings related to any such suit promptly
after such threat, claim or proceeding comes to the attention of RN. Partner
shall have sole control of the defense and/or settlement of any such suit, and
RN shall furnish to Partner, upon request, information available to RN for such
defense, and shall provide Partner with such assistance in defending such suits
as is requested by Partner, at Partner's expense. If RN's use of the Partner
Products under the terms of this Agreement is, or in Partner's opinion is likely
to be, enjoined due to the type of infringement or misappropriation specified
above, then Partner may, at its sole option and expense, either (i) procure for
RN the right to continue using the Partner Products under the terms of this
Agreement; or (ii)replace or modify the affected Partner Products so that it is
noninfringing and substantially equivalent in function to the enjoined Partner
Products. The foregoing obligation of Partner does not apply (i) with respect to
versions of the Partner Products or portions or components thereof: (a)that are
modified after shipment, if the alleged infringement relates to such
modification, and if such modification was not authorized, expressly permitted
or performed by Partner; (b)that are combined with other products, processes or
materials, if the alleged infringement relates to such combination and if
Partner did not authorize or expressly permit the combination; or (c) where RN's
use of the Partner Products is not in accordance with the license granted under
this Agreement; or (ii) for use or distribution of Partner Products or otherwise
not in accordance with the terms and conditions of this Agreement.
11. LIMITATION OF LIABILITY
----------
(1) Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidential Treatment.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL OR PUNITIVE DAMAGE OR LOSS OF ANY NATURE (E.G.,
DAMAGE TO PROPERTY, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS, LOSS
OF USE, LOST OR DAMAGED FILES OR DATA, INJURY TO PERSON, OR ANY CLAIMS OF THOSE
NOT A PARTY TO THE AGREEMENT)WHICH MAY ARISE IN CONNECTION WITH THE USE,
ADAPTATION, MERGER, CORPORATION,DISTRIBUTION, INSTALLATION, REMOVAL OR SUPPORT
OF THE LICENSED SOFTWARE, THE RN PRODUCTS, AND/OR THE PARTNER PRODUCTS PURSUANT
TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN WARRANTY,
CONTRACT, NEGLIGENCE, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. BECAUSE SOME
STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL, DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY, AND
THE PARTIES MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
12. DISPUTE RESOLUTION
12.1 Coverage. Any dispute arising out of or relating to this Agreement shall be
resolved in accordance with the procedures specified in this Section, which
shall be the sole and exclusive procedures for the resolution of any such
dispute. Other than actual or imminent material breaches of Sections 2, 7 and 8,
any dispute between the parties with respect to this Agreement shall be
submitted for structured negotiation. The commencement, and any resolution
reached as a result, of any dispute resolution under this Section shall be
considered Confidential Information and shall be treated as compromise and
settlement negotiations.
12.2 Structured Negotiation. Either party may invoke this procedure by giving
written notice set forth the details of and its position with respect to the
dispute to the other party, and designating therein a corporate officer with
appropriate authority to be its representative in negotiations relating to the
dispute. The other party shall designate a corporate officer with similar
authority within three (3) business days of its receipt of such notice. The
designated officers shall, following whatever investigation each deems
appropriate, but no event later than twenty (20) business days after the
original notice, enter into discussions concerning the dispute. If the
representatives do not resolve the dispute within an additional twenty (20)
business days of their initial meeting, either party may submit the matter to
binding arbitration under Section 12.3.
12.3 Binding Arbitration.
(a) Any dispute not settled by the parties by structured negotiation
(other than actions for injunctive relief including specific performance)
shall be submitted only to binding arbitration. The arbitration will be
conducted in accordance with the procedures
set forth herein and the Arbitration Rules for Commercial Arbitration Rules
of the AAA. In the event of a conflict with such rules, this Agreement will
control.
(b) The arbitration shall take place in Seattle, Washington, before a
panel of three arbitrators appointed as follows: each party shall select a
single arbitrator, and the two (2) selected arbitrators shall mutually
agree upon a third. The arbitrators selected shall have knowledge and
experience in the computer software business. The arbitrators shall rule on
the dispute by issuing a written opinion setting forth findings of fact and
the rationale for their decision within thirty (30) days after the close of
hearings. The decision rendered by the arbitrators shall be final and
binding and may be entered as a judgment in any court of competent
jurisdiction. The arbitrators shall control the scheduling so as to process
the matter expeditiously. The times specified in this Section may be
extended upon mutual agreement of the parties upon a showing of good cause.
The parties may submit written briefs. Discovery shall be controlled by the
arbitrators and shall be permitted as follows: each party may submit in
writing to the other party, and that party shall so respond, to a maximum
of any combination of thirty-five (35) (none of which may have subparts) of
interrogatories, demands to produce documents, and requests for admission.
Unless provided otherwise in the Agreement, the arbitrators may not award
non-monetary or equitable relief of any sort. They will have no power to
award damages inconsistent with the Agreement. In no event, even if any
other portion of these provisions is held to be invalid or unenforceable,
shall the arbitrators have power to make an award or impose a remedy that
could not be made or imposed by a court deciding the matter in the same
jurisdiction.
( c) Any issue concerning the extent to which any dispute is subject
to arbitration, or concerning the applicability, interpretation, or
enforceability of these procedures, including any contention that all or
part of these procedures are invalid or unenforceable, shall be governed by
the Federal Arbitration Act and resolved by the arbitrators. No potential
arbitrator may serve on the panel unless he or she has agreed in writing to
abide and be bound by these.
(d) Each party shall bear its own costs of arbitration. A party
seeking discovery shall reimburse the responding party the costs of
production of documents (to include search time and reproduction costs).
The parties shall equally split the fees of the arbitration and the
arbitrators.
12.4 Provisional Remedies. The procedures specified in this Section shall be the
sole and exclusive procedures for the resolution of disputes between the parties
arising out of or relating to this Agreement; provided, however that a party,
without prejudice to the mandatory procedures of this Section, may file a
complaint for statute of limitations or venue reasons, or seek a preliminary
injunction or other provisional judicial relief, if in its sole judgment such
action is necessary to avoid irreparable damage or to preserve the status quo.
Notwithstanding such action, the parties will continue to participate in good
faith in the procedures specified in this Section.
12.5 Tolling, Statute of Limitations. All applicable statutes or limitation and
defenses based upon the passage of time shall be tolled while the procedures
specified in this Section are pending. The parties will take such action, if
any, required to effectuate such tolling.
12.6 Performance to Continue. Each party agrees, and is required, to continue to
perform its obligations under this Agreement pending final resolution of any
dispute arising out of or relating to this Agreement.
13. GENERAL
13.1 Notice. Any notice or other communication permitted or required under this
Agreement shall be given in writing and shall be deemed effective upon personal
delivery (including courier service), overnight mail delivery, upon confirmed
facsimile transmission, or five (5) days after deposit, postage prepaid, in the
first class mail of the United States properly addressed to the appropriate
party at the address set forth below:
RN: Real Networks, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Point of contact: Xxx Xxxxxx
Facsimile No.: 000-000-0000
With a copy to: General Counsel
Facsimile No.: 000-000-0000
Partner: Digital Lava Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Point of contact: Xxxxx Xxxxx, CFO
Facsimile No.: (000) 000-0000
Either party may from time to time change such address by giving the
other party notice of such change in accordance with this Section.
13.2 Independent Contractors. RN and Partner are independent contractors in all
relationships and actions under and contemplated by the Agreement.
Notwithstanding anything in this Agreement to the contrary, the parties do not
by this Agreement intend to form, nor shall this Agreement be construed to
constitute, a partnership, joint venture, employment, or agency relationship
between them, or to authorize Partner or any Authorized Distributors to enter
into any commitment or agreement binding on RN or to allow one party to accept
service of any legal process addressed to, or intended for, the
other party. Partner and Authorized Partners shall not make any warranties,
guarantees or any other commitments on behalf of RN pursuant to the Agreement.
13.3 No Assignment. Partner shall not assign, transfer or otherwise dispose of
this Agreement or any rights or duties hereunder without the prior written
consent of RN, *****(1)
13.4 Survival. The following provisions shall survive the expiration or
termination of this Agreement: the applicable provisions of Sections 2.3, 5.3,
6.4, and 7 through 12.
13.5 U.S. Government Restricted Rights and Export Restriction. The Licensed
Software, RN Products, and User Documentation are provided with RESTRICTED
RIGHTS. Use, duplication or disclosure by the Government is subject to
restrictions set forth in subparagraphs (a) through (d) of the Commercial
Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in
subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement,
as applicable. Manufacturer is Real Networks, Xxx./0000 Xxxxx Xxxxxx, Xxxxx 000/
Xxxxxxx, Xxxxxxxxxx, 00000. Partner acknowledges that none of the Licensed
Software, RN Products, or underlying information or technology may be downloaded
or otherwise exported or re-exported: (i) into (or to a national or resident of)
Cuba, Iran, Iraq, Libya, North Korea, Syria, Sudan or Angola or any other
country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders.
13.6 Miscellaneous. This Agreement, and any exhibits and schedules attached
hereto and incorporated herein, constitute the complete and exclusive agreement
between RN and Partner with respect to the subject matter hereof, and supersedes
all oral or written understandings, communications or agreements not
specifically incorporated herein. If any provision in this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions will continue in full force without being impaired or
invalidated in any way. No waiver, amendment or modification of any provision of
this Agreement shall be effective unless it is in a document which expressly
refers to this Agreement and is signed by authorized representatives of both
parties. Except as specifically provided herein, failure or delay by either
party in exercising any rights or remedy under this Agreement shall not operate
as a waiver of any such right or remedy. Headings shall not be considered in
interpreting this Agreement. This Agreement shall be governed by the laws of the
State of Washington, without regard to its conflict of laws rules. The United
Nations Convention of Contracts for the International Sale of Goods is expressly
excluded.
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(1) Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidential Treatment.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
REAL NETWORKS, INC. DIGITAL LAVA INC.
By: /s/Xxx Xxxxxx By: /s/ Xxxxxx X.X. Xxxxxxxx
--------------- ----------------------------
Name: Xxx Xxxxxx Name: Xxxxxx X. X. Xxxxxxxx
Title: Senior Vice President MSDIV Title: CEO
Date: 4/13/98 Date: 6 April '98
EXHIBIT A
Partner Products
VideoVisor
vPrism
VideoVisor Publisher
EXHIBIT B
RMA Server
The RMA Server includes the following:
1) installer for the appropriate operating system platform
2) operators manual
3) exposed interfaces to plug-in a monitor, administrator, file system,
datatype or broadcast datatype
4) base-level monitoring tool
5) ability to stream a datatype given a file format plug-in or broadcast
plug-in and license key
6) supports the following platforms: Windows NT; UNIX (Free BSD, Solaris 2.5,
Linux, DEC UNIX, BSDI, HP/UX, SunOS 4.1, IRIX and AIX)
SCHEDULE I
*****(1)
----------
1 Confidential information is omitted by a * and filed separately with the
SEC pursuant to a request for Confidential Treatment.
SCHUEDULE 2
*****(1)
----------
1 Confidential information is omitted by a * and filed separately with the
SEC pursuant to a request for Confidential Treatment.
