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EXHIBIT 10.60
DMX/MEDIA TOUCH JOINT VENTURE AGREEMENT
This Agreement is made as of March 17, 1998 between DMX, Inc. ("DMX"), a
Delaware corporation, and OMT Technologies, Inc. T/A Media Touch ("OMT"), a
Canadian corporation.
RECITALS
WHEREAS, DMX has developed and markets a multi-format programming music
service known as the DMX Digital File Server Studio ("DFS Studio") for delivery
of audio content to national and international licensees; and
WHEREAS, OMT has developed and is developing custom playback software for
both national and international applications ("OMT Software"), including but
not limited to the software specified in that certain Purchase Agreement
between DMX and OMT dated as of March 17, 1998 (the "Purchase Agreement"); and
WHEREAS, DMX and OMT desire to jointly develop the DFS Studio
(incorporating the OMT Software as provided in the Purchase Agreement) to
provide Licensees (as defined below) with turn-key multi-format programming
solutions utilizing the DFS Studio technologies, as provided in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
DMX and OMT hereby agree as follows:
1. Definitions.
a. "DFS Studio" shall mean the multi-format programming service
established by DMX, as more specifically described in the Purchase
Agreement.
b. "OMT Software" shall mean all playback software necessary in
connection with the DFS Studio, including all software necessary for the
operation of the DFS Studio.
c. "Licensees" shall mean any third party companies licensing the
DFS Studio from DMX in any location throughout the world.
2. Term.
The term of this Agreement (the "Term") shall be for a period of five (5)
years from the date first written above. In addition, DMX shall have the right
to continue to utilize the OMT Software in connection with the DFS Studio after
the Term hereof solely with respect to Licensees who have contracts for
services and equipment covered by this Agreement, if such contracts were
entered into during the Term hereof.
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3. Duties of DMX.
a. DMX will create DFS Studios for Licensees incorporating the OMT
Software exclusively during the Term for the purpose of originating audio
content in the DFS Studio;
b. DMX shall market and sell the DFS Studio to Licensees;
c. DMX shall provide Licensees with the DFS Studio equipment (i.e.,
hardware OMT Software and audio content);
d. DMX shall have sole control and approval over all software
licenses granted in connection with the DFS Studio and has the right to
sub-license any or all of the OMT Software to Licensees for such purposes. DMX
shall have the right in its sole discretion to control such licenses and to
grant and reallocate such licenses to any company or location worldwide;
e. DMX shall be responsible for the installation and servicing of
the DFS Studio equipment for Licensees;
f. DMX shall be responsible for billing and collection from
Licensees for all costs related to the DFS Studio.
4. Duties of OMT
a. OMT shall provide to DMX the OMT Software in a format necessary
for DMX to perform its obligations hereunder, in accordance with the Purchase
Agreement;
b. OMT hereby acknowledges that pursuant to the Purchase Agreement
it has granted an exclusive license to DMX to use certain custom portions of
the OMT Software, and a non-exclusive license to DMX for the remainder of the
OMT Software, in the DFS Studio for all purposes contemplated in this
Agreement, including use for Licensees;
c. OMT shall be responsible to obtain, and pay all sums required for
and/or arising in connection with, all licenses, approvals and consents of any
kind necessary to use OMT Software for all purposes contemplated hereunder,
including without limitation all necessary rights from third party software
owners;
d. OMT shall provide engineering, technical, programming and
software expertise and training on how to use the OMT Software as provided in
the Purchase Agreement and otherwise as mutually agreed upon by DMX and OMT;
e. During the Term, OMT shall not develop and/or sell
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to any person or entity in any manner other than through DMX (i) the custom
portions of the OMT Software or (ii) any multi-format programming software.
OMT shall not provide services to, or utilize, any company other than DMX
for the multi-format programming initiatives worldwide during the Term.
Notwithstanding anything contained herein, OMT shall retain the right to
continue to provide maintenance support for its clients pursuant to
agreements existing as of the date of this Agreement, and to provide
software development and marketing services only to low powered commercial
radio and O.E.M. ("Original Equipment Manufacturer") audio applications
which do not in any manner directly compete with DMX. For purposes of
example only, OMT shall not provide the aforementioned software and/or
services to medium and high powered satellite distribution initiatives
and/or newly emerging broadband technologies.
5. Mutual Duties of DMX and OMT.
DMX and OMT shall have the following mutual obligations with respect to
the DFS Studio:
a. DMX and OMT shall use their best efforts to jointly develop
software solutions to support the Licensee's systems as it pertains to the
DFS Studio;
b. OMT shall assist and support DMX in marketing the DFS Studio to
Licensees upon DMX's request.
6. Fees.
DMX shall pay to OMT the license fees set forth in Schedule "A" attached
hereto.
7. Breach, Cure and Termination.
In the event of a material breach of the Agreement, the non-breaching
party shall provide the breaching party with written notice of the breach, and
if such breach is not cured with thirty (30) days of receipt of such written
notice, the non-breaching party shall have the right to terminate this
Agreement with no further obligation to the breaching party except as expressly
set forth herein. The obligations that shall survive termination under this
Paragraph 7, unless waived by the non-breaching party, are as follows: all
product and service warranties, if any; the obligation to fill orders placed
prior to termination; the obligation to service Licensees which purchased the
DFS Studio prior to termination of this Agreement; the indemnity provisions of
Paragraph 8; the confidentiality provisions of Paragraph 9; and, any other
obligations owed to Licensees under the terms of agreements with such Licensees
signed during the Term hereof. In addition to any other material breach of this
Agreement, it shall
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be deemed a material breach of this Agreement if OMT breaches the terms of the
Purchase Agreement or otherwise fails to provide playback software competitive
of DMX's stated business objectives.
8. Indemnification.
DMX hereby agrees to indemnify and hold OMT and its agents, employees,
representatives, successors and assigns harmless from and against any and all
claims, suits, actions, liabilities, judgments, losses and costs (including
reasonable attorneys' fees) related to wrongful actions by DMX or its agents,
employees or representatives, arising out of or in connection with DMX's
obligations and/or representations hereunder and which are not caused by the
willful or negligent actions of OMT or its agents, employees or representatives.
OMT hereby agrees to indemnify and hold DMX and its agents, employees,
representatives, successors and assigns harmless from and against any and all
claims, suits, actions, liabilities, judgments, losses and costs (including
reasonable attorneys' fees) related to wrongful actions by OMT or its agents,
employees or representatives, arising out of or in connection with OMT's
obligations and/or representations hereunder and which are not caused by the
willful or negligent actions of DMX or its agents, employees or representatives.
9. Confidentiality.
Without the prior consent of the other, neither OMT nor DMX shall disclose
to any third party (other than its respective employees, in their capacity as
such, who have a need to know in the performance of their ordinary employee
functions, or Licensees which need to know as part of the use of the DFS
Studio, provided in either case, such employees and parties agree to be bound
by the provisions of this paragraph) including, without limitation, any
municipality or other governmental entity, any information with respect to the
terms and provisions of this Agreement, or any information obtained from the
other in connection with this Agreement or the performance hereof, except: (i)
to the extent necessary to comply with law or the valid order of a court of
competent jurisdiction, in which event the party making such disclosure shall
so notify the other as promptly as practicable (and, if possible, prior to
making such disclosure) and shall seek confidential treatment of such
information; (ii) as part of its normal reporting or review procedure to its
auditors or its attorneys; (iii) in order to enforce its rights pursuant to
this Agreement; or (iv) as to any information which is in the public domain or
which is properly obtained from a third party.
10. Miscellaneous Provisions.
a. Representations and Warranties.
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DMT and OMT each hereby represent and warrant that it has the authority
and is free to enter into this Agreement and that neither the execution of this
Agreement nor the performance of its obligations hereunder will interfere with
or cause the breach of any agreement between it and a third party. OMT
represents and warrants that it has secured all rights in the OMT Software as
are necessary for the parties to perform all obligations hereunder.
b. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws
of the State of California, and all such actions or proceedings shall be
submitted to the exclusive jurisdiction of the courts in Los Angeles,
California.
c. Integration and Modification.
This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior understandings,
whether written or oral, related to the matters set forth herein. This
Agreement is not intended, and shall not be deemed, to supercede this Purchase
Agreement. This Agreement may be modified only in a writing signed by the party
to be charged.
d. Severability.
If any provision of this Agreement should become or be deemed illegal,
unenforceable or void, then the remainder of this Agreement shall remain valid
and enforceable according to its terms.
e. Waiver.
The failure of either party to insist upon the performance of any of the
provisions of this Agreement shall not be considered a waiver or relinquishment
of future compliance therewith, nor shall a waiver by either party of
any breach at one time of any provision operate as a waiver of any other
provision or as a continuing waiver of such provision.
f. Binding Effect; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties thereto and their respective heirs, successors and assigns; provided,
however, that neither party may or shall assign this Agreement, without the
express written authorization of the other, except to an entity that is related
to the assigning party by virtue of at least fifty
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percent (50%) common ownership, or to an entity purchasing all or substantially
all of the assets of the assigning party.
g. Headings.
Headings used in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation hereof.
h. No Agency.
The relationship between the parties shall be that of independent
contractors, and nothing contained in this Agreement shall create the
relationship of principal and agent or otherwise permit either party to incur
any debts or liabilities or obligations on behalf of the other party (except as
specifically provided herein).
i. Fully Negotiated.
This Agreement shall be construed as having been fully and completely
negotiated, and neither the Agreement nor any provision thereof shall be
construed more strictly against either party.
j. Notices.
Any notice or report given or required to be given under this
Agreement shall be in writing, shall be sent postage prepaid by registered or
certified mail, return receipt requested or by hand or messenger delivery, or
by Federal Express or similar overnight delivery service, or by facsimile
transmission, to the other party, at the following address (unless either party
at any time or times designates another address for itself by notifying the
other party thereof by certified mail, in which case all notices to such party
thereafter shall be given at the following or at such address as either party
may supply to the other in writing):
To OMT: OMT Technologies Inc. T/A Media Touch
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
Facsimile transmission: _____________________
Attention: President
To DMX: DMX Inc.
11400 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile transmission: (000) 000-0000
Attn: President
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With copy to:
Xxxxx Xxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxxxx, LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile transmission: (000) 000-0000
Any notice or report given by personal delivery shall be deemed given on
delivery. Any notice or report given by mail shall be deemed given on the
earlier to occur of actual receipt thereof or on the third day following
mailing thereof. Any notice or report given by Federal Express or similar
overnight delivery service shall be deemed given on the next business day
following delivery of the notice or report to such service with
instructions for overnight delivery. Any notice or report given by
facsimile transmission shall be deemed given on the date of confirmed
transmission.
WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST
WRITTEN ABOVE.
OMT TECHNOLOGIES INC. T/A MEDIA TOUCH
By: /s/ XXXXX XXXX
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Xxxxx Xxxx, Vice President
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(print name and title)
DMX INC.
By: /s/ XXX XXXXXX
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Xxx Xxxxxx, President
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(print name and title)
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EXHIBIT A
JOINT VENTURE AGREMENT
1st 120 licenses [*]
121-170 [*]
171-220 [*]
221-270 [*]
271-320 [*]
321-370 [*]
371-420 [*]
421-470 [*]
471-520 [*]
License fees will not be discounted under [*] and are a one-time fee.
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* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the Commission pursuant to Rule 24b-2.
