EXHIBIT 10.1
LICENSE AND REVENUE SHARING AGREEMENT
This Agreement ("Agreement") is entered into between BROADCASTDVD, INC., a
California corporation, with offices at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX
00000, ("BDVD") and XXXXXXXXX TECHNOLOGIES CORPORATION, a Delaware corporation,
with offices at 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("XXXXXXXXX").
1. Business Intent
BDVD is a producer and distributor of DVD magazines and DVD motion
pictures. XXXXXXXXX has entered into a License Agreement (the "WAG agreement")
with INFOGRAMES NORTH AMERICA, formerly known as ACCOLADE, INC. ("INFROGAMES"),
an interactive entertainment software developer and publisher, and WARNER
ADVANCED MEDIA OPERATIONS ("WAMO"), a DVD replicator, by which said parties will
develop and distribute Encrypted Game Packs ("EGPs") to Original Equipment
Manufactures ("OEMs"). XXXXXXXXX, INFOGRAMES and WAMO are collectively referred
to herein as "WAG". XXXXXXXXX, through the WAG agreement or otherwise, may also
distribute EGPs through retail channels. By this Agreement, BDVD intends to
furnish mutually agreed upon DVD magazines (such as FILM-FEST) and/or movies and
XXXXXXXXX intends to provide for the placement of such DVD magazines and/or
movies on the EGPs, initially in an unencrypted format, for distribution to OEMs
and/or through retail channels. Revenues for BDVD and XXXXXXXXX will initially
be generated from third party sponsorships or advertising contained in the DVD
magazines or movies. This Agreement further provides exclusivity provisions for
the benefit of BDVD and XXXXXXXXX, distribution milestones, compensation, and
reservation of rights, among other things.
2. Scope
a. General. This Agreement, including attachments, if any, shall constitute
a master agreement under which BDVD shall furnish mutually agreed upon DVD
magazines and/or movies for placement on the EGPs, in coordination with the
release of such EGPs. XXXXXXXXX shall provide notice and details to BDVD of
upcoming EGP production and distribution to the fullest extent allowed by the
WAG agreement or other third party agreements for EGP distribution. BDVD and
XXXXXXXXX shall then agree on the DVD magazines and/or movies to be included on
the EGP and submit the magazine or movie for inclusion on the EGP as provided
herein. The parties shall agree to a "Specification" (as defined herein) at such
time as the parties agree on the DVD magazine and/or movie to be included on the
EGP incorporating any additional terms or conditions and the applicable terms
and conditions hereof in the event of any inconsistency between this Agreement
and the applicable Specification, this Agreement shall control unless expressly
superseded.
b. Specifications. Each Specification shall contain, at a minimum, (i) a
description of the EGP, including a list of all content; (ii) the DVD magazine
or move to be included on the EGP, along with a listing of the sponsors and/or
advertisers for that particular DVD magazine or movie, (iii) the delivery date
for the digital linear tape ("DL7") to be used for replication of the DVD
magazine or movie, and (iv) any other material details needed for the proper
carrying out of the intent of the parties hereto.
3. Licenses
x. Xxxxx of Distribution License.
(i) BDVD grants XXXXXXXXX, pursuant to the terms and conditions of
this Agreement, a worldwide, nontransferable (subject to Paragraph 3.a.(iv) and
Paragraph 14. of this Agreement) license to use, copy and distribute the DVD
magazines and movies included on the EGPs during the term of this Agreement.
This distribution license shall be sublicensable to the extent necessary to
allow XXXXXXXXX'x OEM and retail channels to distribute copies of the DVD
magazines and movies on the EGPs to end- users. This license may be sublicensed
by XXXXXXXXX to WAMO and to entities participating in the WAMO Worldwide
Affiliate Program to the extent necessary to allow such entities to manufacture
the EGPs; provided, however, such entities shall comply with the obligations and
restrictions imposed by this Agreement to the extent applicable.
(ii) This license shall be exclusive in that BDVD agrees that it shall
not grant any other licenses to use, copy or distribute its DVD magazines or
movies on encrypted or partially encrypted game discs to be given away in OEM
and retail channels. This license shall remain exclusive for a term of three (3)
years from the Effective Date or for as long as WAG or XXXXXXXXX is producing or
distributing EGPs, whichever is shorter. Nothing in this Agreement shall
preclude BDVD from licensing, distributing or otherwise exploiting its DVD
Magazines or movies, which are not a part of encrypted game discs, by any means
whatsoever including, but not limited to, OEM distribution, rentals and retain,
mail-order and/or online sell-through markets. Xxxxxxxxx will have the right of
first refusal on placement of BDVD's magazines or movies onto it's EGP's. If the
magazines or moves that BDVD presents to Xxxxxxxxx are not accepted and placed
on EGP's within a commercially reasonable time, nothing shall preclude BDVD from
licensing, distributing or otherwise exploiting those DVD Magazines or movies,
by any means whatsoever.
(iii) During the term of this Agreement, XXXXXXXXX agrees that it will
not put any other third party DVD magazines on its EGPs, and that on each of its
EGPs XXXXXXXXX will include a mutually agreed upon unencrypted BDVD DVD magazine
or movie, as long as BDVD furnishes agreed upon DVD magazines or movies for
inclusion on each EGP project of XXXXXXXXX'x. In the event that XXXXXXXXX and
BDVD fail to agree, after meaningful and good faith discussions between the
parties, upon a DVD magazine or movie for inclusion on any particular EGP
distributed by XXXXXXXXX, or in the event BDVD fails to furnish a particular
agreed to DVD magazine or movie for inclusion on any particular EGP as required
by the applicable Specification, then XXXXXXXXX shall be entitled to terminate
the exclusivity requirement contained in this paragraph (iii) and shall be free
to use any alternate third party DVD magazine and/or movies on the particular
EGP for which the parties failed to agree on a DVD magazine or movie. Nothing
contained in this paragraph (iii) shall terminate the exclusivity requirement
contained herein with respect to any subsequent EGPs unless similar failure by
the parties occurs on such subsequent EGPs.
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(iv) In the event that XXXXXXXXX or BDVD assigns this Agreement
incident to the sale of substantially all of its assets, or pursuant to any
manner, consolidation or reorganization, the exclusivity provisions contained in
Subsections (ii) and (iii) of this Section shall not apply to the business
activities of the acquiring, parent, or affiliated company and shall only apply
to the specific products referenced in this Agreement.
b. Restrictions on Use. XXXXXXXXX shall not permit any parent,
subsidiaries, affiliated entities of third parties to use or copy the DVD
magazines or movies provided by BDVD, other than as contemplated in this
Agreement.
c. Proprietary Notices. XXXXXXXXX shall ensure that all copies of any EGPs
which include a BDVD magazine or movie shall include BDVD's proprietary notices,
if any, substantially in the form of the text attached hereto as Schedule A.
d. Modifications. XXXXXXXXX shall not modify or edit any agreed upon BDVD
magazine or movie which is to be included on an EGP. Notwithstanding any other
provision or terms of this Agreement, XXXXXXXXX shall not repurpose or
redistribute any DVD magazine or movie provided by BDVD to XXXXXXXXX for
inclusion on any EGP issued subsequent to that EGP for which BDVD had
specifically provided such DVD magazine or movie, without the express written
consent of BDVD.
e. Reserved Rights. All rights in the BDVD magazines and movies furnished
by BDVD, not expressly granted to XXXXXXXXX or its sublicenses as set forth in
this Agreement are reserved by BDVD. All rights not expressly granted to BDVD by
XXXXXXXXX in this Agreement are reserved by XXXXXXXXX.
4. Notice, Delivery and Installation
a. Notice by XXXXXXXXX. XXXXXXXXX shall be responsible for notifying BDVD
of the project schedule for each EGP project as soon as said project schedule
becomes available to XXXXXXXXX.
b. Agreement on DVD magazine and/or movie and Specification. Within a
commercially reasonable time after notification of each EGP project schedule,
BDVD and XXXXXXXXX shall agree on the DVD magazine and/or movie to be a part of
the EGP project and the details of the Specification referenced in paragraph 2.b
above.
c. Delivery by BDVD. BDVD shall provide XXXXXXXXX with a DLT for
replication in accordance with the Specification.
d. Installation by XXXXXXXXX. XXXXXXXXX shall cause the DVD magazine and/or
movie to be included on the EGPs as agreed in the Specification. Any and all
costs incurred by XXXXXXXXX in the process of including/installing the agreed
DVD magazines and/or movies on the EGPs shall be the sole responsibility of
XXXXXXXXX.
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5. Ownership
a. Title to DVD magazines and movies. BDVD and XXXXXXXXX agree that as
between BDVD and XXXXXXXXX, BDVD (i) owns all proprietary rights, including
patent, copyright, trade secret, trademark and other proprietary rights, in and
to the content of the DVD magazines it furnishes to XXXXXXXXX, and (ii)
possesses the lawful right to distribute the content of the DVD magazines or
movies it furnishes to XXXXXXXXX.
b. Title to EGPs and Their Individual Components. The parties agree that,
as between BDVD and XXXXXXXXX, XXXXXXXXX owns all propriety rights, including
patent, copyright, trade secret, trademark and other proprietary rights, in and
to the EGPs, and each of the components which comprise the EGPs, both before and
after inclusion of BDVD's magazines or movies, other than the content of the DVD
magazines and movies furnished by BDVD.
c. Transfers. Under no circumstances shall XXXXXXXXX sell, license,
publish, display, distribute, or otherwise transfer to a third party the content
or any copy thereof, in whole or in part, of the DVD magazines or movies
furnished by BDVD without BDVD's prior written consent, unless in accordance
with this Agreement.
6. Production, Distribution and Promotion
a. Production and Distribution. After delivery of the DLT as called for in
paragraph 4.c above, XXXXXXXXX shall be responsible at the sole cost and expense
of XXXXXXXXX for reproduction of the DVD magazines and/or movies for inclusion
on the EGPs, for delivery to OEMs and/or through retail channels as contemplated
by this Agreement.
b. Promotion. BDVD understands that as a part of the WAG agreement,
INFOGRAM is solely responsible for marketing and selling EGPs to CEMs, but that
XXXXXXXXX and WAMO agree to provide reasonable cooperation and assistance to
INFOGRAM as requested by INFOGRAM. BDVD agrees to work with XXXXXXXXX as
requested by XXXXXXXXX to assist in the promotion and marketing of the EGPs, but
that as to distribution to OEMs, same must be done in conformity with the WAG
agreement. XXXXXXXXX and BDVD shall enter into good faith consultation with each
other with respect to packaging design, cover art and art design for each EGP
that contains a BDVD magazine or movie provided, however, that as between the
parties hereto XXXXXXXXX shall have final right of approval over all such design
and art matters.
c. Press Releases. The parties agree to cooperate with one another in
issuing press releases relating to this Agreement and that the content of such
press releases shall be subject to the mutual agreement of the parties,
realizing same must be done in conjunction with, or with the approval of, the
WAG parties.
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7. Demographic Information
The parties understand that demographic information regarding the end-users
of EGPs is currently governed by the WAG agreement and that BDVD will not have
access to any such information without the express approval of the WAG parties.
8. Confidential Information
a. Protection of Confidential Information. Each party acknowledges that,
during the term of this Agreement, it will have access to proprietary
information ("Confidential Information") of the other party. Each party will use
its best efforts to protect the Confidential Information of the other party in
the same manner in which it protects its own Confidential Information (but in no
event less than reasonable care), and will not use or disclose such Confidential
Information, except to those employees or agents with an absolute need to know
such information provided that those employees and agents shall also be bound by
the terms and conditions of this Agreement.
b. Exceptions to Confidential Treatment. The obligations of confidentiality
and non-use required by Section 8a will not apply to any confidential or
proprietary information of one party which
(i) was known by the receiving party prior to the date of this
Agreement and not obtained or derived, directly or indirectly, from the
disclosing party or its affiliates, or if so obtained or derived, was lawfully
obtained or derived and is not held subject to any confidentiality or non-use
obligations;
(ii) is or becomes public or available to the general public, the
computer software industry or the magazine or movie industries, other than
through any act or default of the receiving party;
(iii) is obtained or derived prior or subsequent to the dates of this
Agreement from a third party which, to the best knowledge of the party acquiring
such information, is lawfully in possession of such information and does not
hold such information subject to any confidentiality or non-use obligations;
(iv) is independently developed by the receiving party without use of
the disclosing party's Confidential Information, or
(v) is required to be disclosed by the receiving party pursuant to
applicable law or under a government or court order, relating, in whole or in
part, to the Title or any other subject matter of this Agreement, provided,
however, that (i) the obligations of confidentiality and non-use will continue
to the fullest extent not in conflict with such law or order, and (ii) if and
when a party is required to disclose such confidential or proprietary
information pursuant to any such law or order, such party will use its
reasonable efforts to obtain a protective order or take such other actions as
will prevent or limit, to the fullest extent possible, public access to, or
disclosure of such Confidential Information.
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c. Continuation of Obligations. The parties' obligations under this Section
will extend for three (3) years following the expiration or termination of this
Agreement.
9. Compensation
a. In General. The parties at present do not anticipate nor plan on
generating revenue from the sale of the EGPs that contain the DVD magazines or
movies to be provided to XXXXXXXXX by BDVD. The parties intend to generate
revenues from third party sponsorships or advertising, and BDVD agrees to pay a
certain portion of such revenues to XXXXXXXXX in consideration of the services
rendered by XXXXXXXXX. The parties may in the future develop a revenue sharing
arrangement for encrypted magazines or movies.
x. XXXXXXXXX fees. BDVD shall pay XXXXXXXXX fees in the amount of thirty
percent (30%) of all revenues received by BDVD from sponsorships or advertising
generated or derived directly from the BDVD DVD magazines and movies included on
the EGPs.
c. Payment Terms. All monies owing by BDVD to XXXXXXXXX shall be paid by
the 10th of the month following BDVD's receipt of same from the sponsors and
advertisers.
d. Accounting. BDVD shall account to XXXXXXXXX with regard to XXXXXXXXX'x
compensation hereunder on a quarterly basis. The quarterly periods shall end on
March 31st, June 30th, September 30th and December 31st of each year; provided
that no accounting need be rendered for any quarterly period in which no
compensation accrues to XXXXXXXXX, provided BDVD furnishes a statement to that
effect to XXXXXXXXX. Accountings shall be render on or before the date thirty
(30) days following the conclusion of each accounting period. In the event
XXXXXXXXX has an objection to a quarterly accounting, XXXXXXXXX shall notify
BDVD of such objection within sixty (60) days after XXXXXXXXX'x receipt of the
subject accounting. Upon BDVD's receipt of an objection, BDVD shall deliver same
to BDVD's independent accounting firm ("CPA") regularly employed by BDVD. The
CPA's determination as to the proper amount payable in accordance with this
Agreement shall be conclusive and binding on all parties hereto. In the event no
timely objection is made with regard to a quarterly accounting such accounting
shall be deemed conclusive and not subject to further contest with respect to
matters therein. Notwithstanding the foregoing, XXXXXXXXX does not waive any
rights in the event of fraud, misrepresentation or illegal conduct.
e. Sales Taxes. Since the DVD magazines and movies are being given away as
a part of the EGPs, there should be no sales tax attributable to such
transactions, and the WAG parties, pursuant to the WAG agreement will be
responsible for any sales taxes due related to the EGPs.
f. Other Taxes. Each party hereto shall be responsible for its respective
taxes, whether federal, state or otherwise, however designated, which are levied
or imposed by reason of the transactions contemplated by this Agreement, other
than sales taxes.
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10. Warranties
a. BDVD's Representations and Warranties. BDVD warrants to XXXXXXXXX that
none of the DVD magazines or movies it furnishes to XXXXXXXXX to be included on
EGPs infringes any trade secret, patent, mask work right, copyright, moral
right, intellectual right or contract rights of any third party. BDVD further
warrants that it has the power and authority to enter into this Agreement and to
fully perform its obligations hereunder; that this Agreement has been executed
by its duly authorized representative, and that it is under no contractual or
other legal obligations which would interfere in any way with the full, prompt,
and complete performance of its obligations pursuant to this Agreement.
x. XXXXXXXXX'x Representations and Warranties. XXXXXXXXX represents and
warrants that it has the power and authority to enter into this Agreement and to
fully perform its obligations hereunder; that this Agreement has been executed
by its duly authorized representative; and that it is under no contractual or
other legal obligations which would interfere in any way with the full, prompt,
and complete performance of its obligations pursuant to this Agreement.
Notwithstanding the foregoing, the parties understand that XXXXXXXXX is bound by
the WAG agreement and in the event of a conflict between the WAG agreement and
this Agreement, the WAG agreement is controlling.
11. Limitation of Liability
EXCEPT FOR A WILFUL OR INTENTIONAL BREACH HEREOF OR EXCEPT AS TO THE
INDEMNITY PROVISIONS HEREOF, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR
INDIRECT, SPECIAL INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS), HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION IS
INTENDED TO LIMIT THE LIABILITY OF THE PARTIES AND SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. Indemnification
a. BDVD Indemnity. BDVD shall indemnify and hold harmless XXXXXXXXX and/or
WAG from and against any claims, including reasonable legal fees and expenses,
that the DVD magazines or movies, including, but not limited to the content
thereof, furnished by BDVD for inclusion on EGPs, infringes any third party's
proprietary rights, including, patent, copyright, trade secret, trademark,
intellectual or other proprietary right. XXXXXXXXX agrees to notify BDVD of any
such claim promptly in writing and to allow BDVD to control any proceedings.
BDVD shall defend and settle at its sole expense all proceedings arising out of
the foregoing.
b. General Indemnity.
(i) Each party ("Indemnifying Party") agrees to defend, indemnify and
hold harmless any other party, its officers, directors, employees,
subcontractors, and agents ("Indemnified Parties") against any claims, actions
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or demands, alleging facts which would constitute a breach of the Indemnifying
Party's representations and warranties provided in this Agreement or of the
Indemnifying Party's performance obligations under this Agreement.
(ii) In any case in which indemnification is sought, the Indemnified
Party agrees to (1) give prompt written notice to Indemnifying Party of any such
claim, action or demand, (2) allow Indemnifying Party to control the defense and
related settlement negotiations, and (3) assist in the defense so long as
Indemnifying Party reimburses the Indemnified Party for its reasonable expenses.
The Indemnified Party will invoice Indemnifying Party for such expenses and time
on a calendar quarter basis and Indemnifying Party shall pay such reimbursements
within thirty (30) days after the invoice from the Indemnified Party. The law
firm used by Indemnifying Party to defend the Indemnified Party shall be subject
to the Indemnified Party's reasonable approval. If the Indemnifying Party is
unable to comply with the indemnity obligation set forth above, the Indemnified
Party may defend such suit itself for all Indemnified Parties with counsel of
its choosing and may invoice the Indemnifying Party for all expenses incurred in
defending and/or settling any claim and/or satisfying any resulting judgment.
Any settlement shall be subject to the Indemnified Party's prior written
approval unless the Indemnifying Party has obtained an unconditional release of
all of the Indemnified Parties named in the proceeding.
13. Term and Termination
a. Effective Date. This Agreement and the license granted hereunder shall
take effect upon the date that the last party executes this Agreement, and be
effective for a term of three (3) years, unless sooner terminated or extended by
mutual agreement of the parties.
b. Termination. Each party shall have the right to terminate this Agreement
and the license granted herein upon the occurrence of any one of the following
events (an "Event of Default"):
(i) In the event the other party violates any material provision of
this Agreement; or
(ii) In the event the other party (A) terminates or suspends its
business, (B) becomes subject to any bankruptcy or insolvency proceeding under
Federal or state statute, (C) becomes insolvent or subject to direct control by
a trustee, receiver of similar authority, or (D) has wound up or liquidated,
voluntarily or otherwise.
c. Notice and Opportunity to Cure. Upon the occurrence of an Event of
Default, a party shall deliver to the defaulting party a Notice of Intent to
Terminate that identifies in detail the Event of Default. If the Event of
Default remains uncured for thirty (30) days after such Notice, the party may
terminate this Agreement and the license granted herein by delivering to the
defaulting party a Notice of Termination that identifies the effective date of
the termination, which date shall not be less than thirty (30) days after the
date of delivery of the Notice of Intent to Terminate.
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d. BDVD Option to Terminate. BDVD will have the right to terminate this
Agreement upon any of the following events: (i) the failure of XXXXXXXXX to
distribute at least 500,000 EGPs which include an unencrypted BDVD magazine or
movie through OEMs and/or retail channels within six months of the Effective
Date of this Agreement; (ii) the failure of XXXXXXXXX to distribute at least
1,000,000 EGPs which include an unencrypted BDVD magazine or movie through OEMs
and/or retail channels within one year of the Effective Date of this Agreement;
or (iii) the failure of XXXXXXXXX to distribute at least 2,000,000 EGPs which
include an unencrypted BDVD magazine or movie through OEMs and/or retail
channels within eighteen months of the Effective Date of this Agreement. For
purposes of paragraph 13.x. Xxxxxxxxx'x failure to distribute the amount of
EGP's pursuant to the terms of subparagraphs (i), (ii), and (iii) shall not be
deemed a breach of this contract by Xxxxxxxxx. XXXXXXXXX shall account to BDVD
with regard to XXXXXXXXX'X distribution levels of EGPs containing a BDVD
magazine or movie as provided herein on a quarterly basis. The quarterly periods
shall end on March 31st, June 30th, September 30th and December 31st of each
year. Accountings shall be rendered on or before the date thirty (30) days
following the conclusion of each accounting period. In the event BDVD has an
objection to a quarterly accounting, BDVD shall notify XXXXXXXXX of such
objection within sixty (60) days after BDVD's receipt of the subject accounting.
Upon XXXXXXXXX'x receipt of an objection, XXXXXXXXX shall deliver same to
XXXXXXXXX'x independent accounting firm ("Xxxxxxxxx-CPA") regularly employed by
XXXXXXXXX. Xxxxxxxxx-CPA's determination as to the actual levels and amounts of
distribution by XXXXXXXXX shall be deemed conclusive and not subject to further
contest with respect to matters therein. Notwithstanding the foregoing, BDVD
does not waive any rights in the event of fraud, misrepresentation or illegal
conduct.
e. The following provisions shall survive termination or the earlier
expiration of this Agreement 3.b., 3.c., 3.d., 3.e., 5, 8, 10, 11, 12, 13.e.,
15, 17 and 18. The license granted in Section 3.a shall also survive to the
extent necessary to allow WAG's OEM and retail channels to distribute EGPs
manufactured before the expiration or termination of this Agreement and to allow
end-users access to the DVD magazines and/or movies distributed before the
expiration or termination of this Agreement. In addition, the compensation
payable by BDVD to Xxxxxxxxx pursuant to paragraph 9 shall survive the
termination or earlier expiration of this contract provided, however, that the
termination of this contract is not due to or the result of Xxxxxxxxx'x breach
of any provision of this contract.
14. Assignment
Except as otherwise provided herein, no party shall assign or otherwise
transfer this Agreement to any third party without the prior written consent of
the other party, except that any assignment incident to the sale of
substantially all of a party's assets, or pursuant to any merger, consolidation
or reorganization, shall not be considered a prohibited assignment for purposes
of this Section.
15. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or
failure of its performance under this Agreement if such delay or failure arises
by any reason beyond its reasonable control, including any act of God, any acts
of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots,
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failures or delay in transportation or communications, or any act or failure to
act by the other party or such other party's employees, agents or contractors;
provided, however, that lack of funds shall not be deemed to be a reason beyond
a party's reasonable control. The parties will promptly inform and consult with
each other as to any of the above causes which in their judgment may or could be
the cause of a delay in the performance of this Agreement.
14. Arbitration
The parties shall settle any controversy arising out of this Agreement by
arbitration in the State of Texas in accordance with the rules of the American
Arbitration Association. A single arbitrator shall be agreed upon by the parties
or, if the parties cannot agree upon an arbitrator within thirty (30) days, then
the parties agree that a single arbitrator shall be appointed by the American
Arbitration Association. The arbitrator may award attorneys' fees and costs as
part of the award. The award of the arbitrator shall be binding and may be
entered as a judgment in any court of competent jurisdiction. All proceedings
shall be conducted in Xxxxxx County, Texas.
17. Notices
All notices under this Agreement are to be delivered by (i) depositing the
notices in the mail, using registered mail, return receipt requested, addressed
to the address below or to any other address as the party may designate by
providing notice; (ii) telecopying the notice by using the telephone number set
forth below or any other telephone number as the party may designate by
providing notice; (iii) overnight delivery service addressed to the address
below or to any other address as the party may designate by providing notice; or
(iv) hand delivery to the individual designated below or to any other individual
as the party may designate by providing notice. The notice shall be deemed
delivered (i) if by registered mail, four (4) days after the notice's deposit in
the mail, (ii) if by telecopy, on the date the notice is delivered, (iii) if by
overnight delivery service, on the day of delivery, and (iv) if by hand
delivery, on the date of hand delivery.
XXXXXXXXX: Xxxxxxxxx Technologies Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxxxxx Xxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy sent to corporate counsel:
Xxx Xxxxxx Xxxx
Attorney at Law
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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BDVD: BroadcastDVD
0000 0xx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
18. General Provisions
a. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and all other
agreements, oral or written, between the parties relating to this Agreement.
b. Year 2000 Compatibility. The parties warrant and agree that all
software, DVD magazines and movies, and obligations in whatever form which are
to be provided by the respective parties shall be Year 2000 compatible.
c. Warranty that Agreement Does Not Contemplate Corrupt Practices. BDVD and
XXXXXXXXX both represent and warrant that all payments and authorizations under
this agreement constitute compensation for services performed or to be performed
and do not constitute an offer, payment, promise or authorization for payment of
any money or gift to any official or other person to influence any act or
decision of an official or person to induce such official or person to affect or
influence any act or decision in favor of BDVD or XXXXXXXXX.
d. Amendment. This Agreement may not be modified, altered or amended except
by written instrument duly executed by both parties.
e. Waiver. The waiver or failure of either party to exercise in any respect
any right provided for in this Agreement shall not be deemed a waiver of any
further right under this Agreement.
f. Severability. If any provision of this Agreement is invalid, illegal or
unenforceable under any applicable statute or rule of law, it is to that extent
to be deemed omitted. The remainder of the Agreement shall be valid and
enforceable to the maximum extent possible.
g. Governing Law. This Agreement and performance hereunder shall be
governed by the laws of the State of Texas and venue shall lie in Xxxxxx County.
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h. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms. Signatures and
initials conveyed by telecopier shall be deemed originals.
AGREED:
BROADCASTDVD, INC. XXXXXXXXX TECHNOLOGIES CORPORATION
BY: BY;
____________________________ __________________________________
Signature XXXXXXXXXXX XXX XXXXXXX, Senior Vice-President
____________________________
____________________________
Office
Date Aug. 26, 1999 Date Aug. 26, 1999
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