Exhibit 10.24
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("Agreement") is entered into in Houston,
Texas, U.S.A., effective as of the 14th day of August, 2002, ("Execution Date")
by and between Dwango North America, Inc. ("DNA"), a Texas corporation with a
principal place of business at 000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, and
DWANGO Company, Ltd., ("DWANGO"), a Japanese corporation with a principal place
of business at Suitengu Xxxxxxxx Xxxx., 0-00-0, Xxxxxxxxxx-Xxxxxxxx-xxx,
Xxxx-xx, Xxxxx, Xxxxx 103-0014.
RECITALS
WHEREAS, DWANGO has developed and owns certain intellectual property
("Licensed Property"), as defined below;
WHEREAS, DWANGO and DNA (collectively the "Parties" and each a "Party")
have previously entered into a license agreement dated January 31, 2002
("Original License Agreement"), wherein DWANGO licensed certain trademarks and
technology to DNA, under the terms and conditions set out at length in the
Original License Agreement;
WHEREAS, DWANGO and DNA wish to amend and replace the Original License
Agreement in its entirety with this Agreement and a trademark license agreement
being entered into simultaneously herewith;
WHEREAS DNA desires a license of the Licensed Property to use the Licensed
Property in its current form and/or in order to develop new applications of the
Licensed Property for Wireless Technology ("DWANGO Related Technology"), and not
to use the Licensed Property or the DWANGO Related Technology outside the
Territory;
WHEREAS, DWANGO desires to license the Licensed Property to DNA; and
WHEREAS DWANGO and DNA desire to formally document their complete agreement
regarding the license of the Licensed Property to DNA;
NOW THEREFORE, for and in consideration of the mutual promises contained in
this agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned parties hereby
agree as follows:
1. DEFINITIONS: As used in this Agreement, the Parties agree the words
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set forth below shall have the meanings thereby specified:
a. "Confidential Material" shall mean corporate information, including
contractual licensing arrangements, plans, strategies, tactics,
policies, resolutions, patents, trademark and tradename applications,
and any litigation or negotiations; marketing information, including
sales or product plans, strategies, tactics, methods, customers,
prospects, or market research data; financial information, including
cost and performance data, debt arrangement, equity structure,
investors, and holdings; operational and scientific information, and
documentation for all such software, drawings and designs; and
personnel information, including personnel lists, resumes, personnel
data, and performance evaluation, as known and disclosed by either
party to the other, to the full extent to which such information may
legally be regarded as Confidential Material under the laws of the
United States or Japan, including but not limited to the Trade Secret
law of Japan. Confidential Material specifically includes all orally
disclosed confidential information, if such information is identified
as proprietary, confidential, or private upon disclosure.
b. "Gross Revenue" shall mean all revenue, fees, proceeds and/or income
of whatever type or character, and from whatever source, that DNA may
collect or receive from or as a result of Wireless Technology and/or
any technology that is designed for use or may be used over any
wireless network and/or that supports or may be used to support any
wireless application, including, without limitation, all client
applications, all server applications, all transmission applications,
all ringtone applications, all browser applications, all software
development applications and all source and object code related
thereto.
c. "DNA Developed Technology" shall mean all software written and/or
technology developed by or for DNA, which does not contain any portion
of the Licensed Property.
d. "DWANGO Related Technology" shall mean all software and/or technology,
which contains some portion of the Licensed Property, or has been
co-developed by DWANGO and DNA.
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e. "Licensed Property" shall mean all intellectual property rights,
excluding the trademark DWANGO(R) and all other product names and
related trademarks owned and registered, now or in the future, by
DWANGO for Wireless Technology (for purposes of this definition only,
the term DWANGO to include DWANGO Company, Ltd., and any subsidiary,
division or other entity owned and/or controlled by DWANGO Company,
Ltd.), including any DWANGO modifications, additions, enhancements and
upgrades thereto. Title to and all ownership rights of, in and to the
Licensed Property, and the copyrights, trademarks, patents and other
intellectual property rights related thereto, are and will remain the
property of DWANGO, which shall have the exclusive right to protect
the same by copyright, trademark, patent or otherwise.
f. "Reasonable Access" shall mean access to the source code and object
code (collectively the "Code") for the Licensed Property, as DNA may
reasonably request, such as to allow DNA to make reasonable and
effective use of the Licensed Property. Reasonable Access to the Code
for the Licensed Property shall include perpetual online access via
virtual private network, the designation by DWANGO of a qualified
DWANGO employee to respond to DNA inquiries concerning the Code and
the Licensed Property, and such other access and information as is
necessary to allow DNA to make reasonable and effective use of the
Licensed Property.
g. "Territory" shall mean the USA, Canada and Mexico.
h. "Wireless Technology" shall mean all technology owned by DWANGO now or
in the future that is designed for use or may be used over any
wireless network and/or that supports or may be used to support any
wireless application, including, without limitation, all client
applications, all server applications, all transmission applications,
all ringtone applications, all browser applications, all software
development applications and all source and object code related
thereto, and also including any technology which DWANGO uses under
license to the extent contained in any of the foregoing, but only to
the extent that DWANGO'S license entitles DWANGO to sublicense this
technology to DNA.
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2.1. THE DNA LICENSES: DWANGO hereby grants and DNA hereby accepts,
subject to the terms, provisions and conditions hereof, an exclusive,
non-transferable license, within the Territory, to (a) reproduce, distribute,
publicly perform, publicly display, create derivative works from, and (b)
market, sell, make and have made products and services under patent and
trademark using the Licensed Property for a term of eight (8) years commencing
on the Execution Date ("DNA License"). The DNA License shall include all Code to
the extent that it is used in the creation of or incorporated into any Dwango
Related Technology, subject to the confidentiality provisions of the Agreement.
DNA may sublicense the Licensed Property to the extent that such sublicense is
appropriate for DNA's commercial exploitation of the Licensed Property. However,
DNA may not otherwise transfer the Licensed Property for commercial exploitation
of the Licensed Property by a third party, independent of any other involvement
by DNA in the transaction.
The parties acknowledge that DWANGO intends to enter into transactions
whereby DWANGO shall develop for and/or provide to non-affiliated third parties
(for purposes of this provision, non-affiliated third parties are entities
owning less than a 20% interest in DWANGO and/or DWANGO owning less than a 20%
interest in such entity) (hereinafter such non-affiliated third parties "Global
Distributors") certain Wireless Technology which such Global Distributors intend
to utilize for distribution of content on a global basis ("Wireless Technology
Content Distribution"). DWANGO shall provide to DNA timely written notice prior
to the start of distribution of the content within the Territory. Recognizing
that DNA has an exclusive license to the Licensed Property in the Territory, the
parties hereto agree as follows (hereinafter called the "North American Rule"):
1. With regard to Wireless Technology Content Distributions by Global
Distributors that result in the sharing of revenues arising from
publication of such content in the Territory (but not revenues arising
from development of such content), DWANGO and DNA shall agree as to a
fair and reasonable distribution of all such revenues arising
therefrom.
2. With regard to Wireless Technology Content Distributions by Global
Distributors that result in the provision of server support services
and/or other services in the Territory in connection therewith, DWANGO
will coordinate with DNA as to the provision of such services and the
fair and reasonable distribution of revenues arising therefrom.
DNA hereby acknowledges that DWANGO has previously entered to agreements
that in some parts relate to Wireless Technology Content Distribution with the
following entities:
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Sega and Konami ("Current DWANGO Licensees"). DNA acknowledges that these
license agreements permit the Current DWANGO Licensees to use certain DWANGO
intellectual property within the Territory. In the event that the DWANGO license
agreements with the Current DWANGO Licensees permit application of the North
America Rule to the Current DWANGO Licensees, then DWANGO shall consult with DNA
concerning the Current DWANGO Licensees as provided by the North American Rule.
DWANGO hereby represents and warrants that the Current DWANGO Licensees listed
herein represent a complete list of all individuals and/or entities having any
right to use DWANGO intellectual property within the Territory.
2.2. INTELLECTUAL PROPERTY RIGHTS: DNA acknowledges that any and all
intellectual property rights included in the Licensed Property are and shall
remain in the sole and exclusive ownership of DWANGO. DNA also acknowledges that
DNA and its customers gain no rights in or to the Licensed Property except as
expressly granted under this Agreement or other written agreements between
DWANGO and DNA.
2.3. RESERVATION OF RIGHTS: DWANGO hereby reserves any and all rights,
titles and interests in the Licensed Property not expressly and explicitly
granted in this Agreement, including DWANGO's right to authorize or license the
Licensed Property, and all copyrights in the Licensed Property.
2.4. CUSTOM ENHANCEMENT: Any service on custom enhancements, modifications
and so forth requested by DNA shall be charged to DNA. DNA acknowledges that
DWANGO has no obligations under this Agreement to enhance, modify, customize
and/or localize the Licensed Property.
3. RESTRICTIONS ON DNA TRANSACTIONS: DNA hereby acknowledges that some
uses of the DNA Licenses may adversely affect DWANGO's important business
relationships. Therefore, notwithstanding anything to the contrary above, DNA
grants DWANGO the right to designate in writing certain third parties
("Designated Parties") and certain transactions ("Designated Transactions"),
which DWANGO believes would materially adversely affect one of its important
business relationships. DWANGO shall provide DNA its list of Designated Parties
and Designated Transactions on the Execution Date, and may revise this list at
any time before August 14, 2003. After August 14, 2003, Designated Parties and
Designated Transactions may only be added upon agreement of DWANGO and DNA.
DNA hereby agrees not to license, sublicense or in any way convey any right
or
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interest in the Licensed Product and/or any DWANGO Related Technology to any
Designated Party and not to engage in any Designated Transactions. In addition,
DNA agrees not to enter into any agreement with any third party that DNA
believes will materially adversely affect DWANGO's important business
relationships.
DWANGO shall have the discretion to list third parties as Designated
Parties and list particular transactions as Designated Transactions, as DWANGO
may deem appropriate. However, DWANGO hereby agrees that it shall not list a
third party as a Designated Party or list a particular transaction as a
Designated Transaction unless DWANGO has a good faith belief that the prohibited
transaction would materially adversely affect one of DWANGO's important business
relationships. DWANGO may not designate any major wireless carrier operating in
the Territory as a Designated Party, and may not designate any DNA transaction
with a major wireless carrier operating in North America as a Designated
Transaction. In addition, DWANGO agrees that it shall not designate a party as a
Designated Party after DNA has entered into a transaction with such party, and
that it shall not designate a transaction as a Designated Transaction after DNA
has entered into such a transaction.
4. QUALITY CONTROL:
4.1. Quality Standards: DNA agrees to maintain a consistent level of
quality of the DWANGO Related Technology, substantially equal to that found in
DNA's products and Web site services. DNA further agrees to maintain a level of
quality of the DNA Developed Technology that is consistent with general industry
standards.
4.2. Monitoring by DWANGO: DNA acknowledges that DWANGO does have the
right to periodically monitor, no more than quarterly, the quality of the DNA's
use of the Licensed Property. DNA shall submit representative samples of its
current use of the Licensed Property, and submit samples of any significant
revisions to that use. If Dwango believes DNA has not met that standard, Dwango
may contact DNA and request reasonable modifications/improvements. DNA will
agree to make a good faith effort to comply with the requested
modification/improvements. However, DNA will not suspend product promotion and
distribution of its product pending approval of that product from Dwango.
5.1 OWNERSHIP OF DNA DEVELOPED TECHNOLOGY: Title to and all ownership
rights of, in and to the DNA Developed Technology, and the copyrights,
trademarks, patents and other intellectual property rights related thereto, will
be the property of DNA, which shall have the exclusive right to protect the same
by copyright, trademark,
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patent or otherwise. Nothing contained in this Agreement shall limit DNA's
rights with respect to the use of DNA Developed Technology.
5.2 OWNERSHIP OF INTELLECTUAL PROPERTY: DWANGO shall own all Licensed
Property. DNA shall own all DNA Developed Technology. The Parties shall jointly
own all Intellectual Property that is co-developed by the Parties and all
intellectual property developed by DNA, which contains some Licensed Property.
DNA agrees to inform DWANGO of any development or improvement made in
connection with the DNA Developed Technology, and disclose at DWANGO's request,
details of such development or improvements. DWANGO shall have a right to be a
licensee of the DNA Developed Technology, subject to mutually agreed terms and
conditions for such license.
6.1. CONSIDERATION FOR LICENSE: For the rights granted to DNA herein, DNA
shall pay DWANGO an annual running royalty of (*) of DNA's Gross Revenue
("DWANGO Royalty"), which in any case shall not be less than (*) ("a Minimum
Annual Royalty"). If DWANGO in good faith contests any tax that is so payable or
reimbursable by DWANGO, DNA shall cooperate in good faith in the contest at
DWANGO's expense. In the event that the United States government withholds any
sums from the royalties otherwise payable to DWANGO, DNA shall pass on to DWANGO
any tax refund and interest related thereto, received by DNA with respect to
DNA's previous payment or reimbursement of applicable taxes and interest related
thereto hereunder, if any.
6.2. PAYMENT: DNA shall determine the DWANGO Royalty on a quarterly basis,
and the DWANGO Royalty shall be due and payable to DWANGO within ninety (90)
days after the end of each quarterly period ending March 31, June 30, September
30 and December 31. The Annual Minimum Royalty set forth above shall apply to
each applicable contract year, which shall run from October 1 to September 30.
Parties hereto acknowledge that the first contract year shall run from August 1,
2002 to September 30, 2002. The Annual Minimum Royalty shall be paid on or
before December 31 during the term of this Agreement for each contract year. The
first Minimum Annual Royalty payment shall be for the contract year ended
September 30, 2003, and shall be due on December 31, 2003. DWANGO shall release
DNA from payment of the Annual Minimum Royalty for the first contract year
(August 1, 2002 to September 30, 2002). DNA acknowledges that DNA shall pay
DWANGO an annual running royalty for the first contract year equal to two
percent (2%) of the Gross Revenue.
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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6.3. RECORDS AND REPORTS: DNA shall keep, or cause to be kept, complete
and accurate records and books in English language sufficiently separate and
detailed to show the amount of the Licensed Property and/or DWANGO Related
Technology manufactured and sold, used and the running royalty due and payable
to DWANGO.
During the term of this Agreement within thirty (30) calendar days after
the end of each quarterly period, DNA shall submit to DWANGO the report, in
English showing the Gross Revenue, the amount of royalties to be payable, and
other data for calculation thereof with respect to the Licensed Property
manufactured and sold, used or leased during each such accounting period.
6.4. Financial Examination: DNA shall, at the request and at the expense
of the DWANGO and upon reasonable notice, permit its personnel and/or an
independent accountant designated by DWANGO and reasonably acceptable to DNA to
have access to, examine and copy during ordinary business hours such records as
may be necessary to verify or determine any royalties, paid or payable, under
this Agreement. Financial examinations provided for in this section shall take
place no more than one time in any calendar quarter. In the event any
examination of DNA's records proves the lesser of twenty thousand United States
Dollars (US$20,000.00) or ten percent (10%) underpayment of DWANGO Royalty, DNA
shall promptly reimburse DWANGO for all reasonable expenses associated with such
financial examination along with the deficient amounts, together with interest
thereon at the rate of 10% per year from the original due date. In the event
that any examination of DNA's records proves an overpayment of DWANGO Royalty,
DWANGO shall promptly reimburse DNA for the over payment.
7. ROAMING WAIVER: DWANGO may derive revenue from the use of wireless
communication services provided by companies outside the Territory, in
connection with an international roaming service without regard to the
geographic location of such use. DNA may derive revenue from the use of wireless
communication services provided by companies within the Territory, in connection
with an international roaming service without regard to the geographic location
of such use.
8. ACCESS TO SOURCE CODE: DNA hereby acknowledges that the Code for the
Licensed Property is and shall remain the property of DWANGO. However, in order
to effectuate the purposes of the Agreement, DWANGO shall provide DNA Reasonable
Access to the Code and the Licensed Property.
9. WARRANTIES, LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY PROVIDED
HEREIN, NO WARRANTIES ARE MADE BY DNA OR
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DWANGO, AND BOTH DNA AND DWANGO HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. DWANGO DOES NOT WARRANT AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS THAT THE LICENSED PRODUCTS WILL MEET DNA'S
REQUIREMENTS OR THE REQUIREMENTS OF ANY THIRD PARTIES. THE PARTIES AGREE THAT
EACH XXXXX'X LIABILITY, IF ANY, FOR DAMAGES, INCLUDING BUT NOT LIMITED TO
LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, WARRANTY,
PATENT OR COPYRIGHT INFRINGEMENT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY
SHALL NOT EXCEED THE LICENSE FEES PAID BY DNA OR U.S.$ 1,000,000.00 WHICHEVER IS
LESS. NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFIT
OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY CLAIM
AGAINST THE OTHER PARTY, EXCEPT FOR PATENT OR COPYRIGHT INFRINGEMENT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXCEPT FOR ANY INTENTIONAL ACTS BY
SAID PARTY.
DWANGO hereby represents and warrants that it has full legal rights and
authority to enter into this Agreement and to perform its obligations hereunder,
and that by entering into this Agreement or performing its obligations
hereunder, it is not in default or breach of any contract or agreement with any
third party and it is not violating or infringing upon the rights of any third
party. DWANGO represents and warrants that it is not prohibited nor in any
manner otherwise restricted, by any law, regulation or administrative or
judicial order of Japan, or other country to whose laws DWANGO is subject, from
entering into this Agreement or carrying out its provisions or the transactions
contemplated thereby.
DNA hereby represents and warrants that it has full legal rights and
authority to enter into this Agreement and to perform its obligations hereunder,
and that by entering into this Agreement or performing its obligations
hereunder, it is not in default or breach of any contract or agreement with any
third party and it is not violating or infringing upon the rights of any third
party. DNA represents and warrants that it is not prohibited nor in any manner
otherwise restricted, by any law, regulation or administrative or judicial order
of the United States, or other country to whose laws DNA is subject, from
entering into this Agreement or carrying out its provisions or the transactions
contemplated thereby.
DWANGO hereby represents and warrants that (i) it owns all right, title and
interest in or has valid licenses to the Licensed Property, which licenses
include the right to grant the
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DNA Licenses; (ii) there is no legal obstacle to granting the DNA Licenses;
(iii) DNA shall not be required to make an royalty or union or guild payments to
any third party in order to exploit fully all rights granted to it under the DNA
Licenses; (iv) the Licensed Property does not infringe any rights under
copyright, trademark, patent, trade secret or any other proprietary right, or
violate any right of privacy or publicity, of any third party ("Intellectual
Property Rights"), (v) DWANGO has not received notice of any claim that the
Licensed Property infringes any Intellectual Property Rights, (vi) to DWANGO's
knowledge, no third party is infringing the Licensed Property; (vii) to DWANGO's
knowledge, no computer programs included in the Licensed Property contain any
material bugs, viruses, Trojan horses, worms or other forms of corrupt code.
10. CONFIDENTIALITY AGREEMENT: Each party acknowledges that all
Confidential Material of the other party constitutes trade secrets of the other
party and should be kept confidential. Each party acknowledges the unique and
proprietary nature of the Confidential Material of the other. Each party hereby
agrees and acknowledges that it makes no present claim, nor will it make any
future claim whatsoever, to the other party's Confidential Material. In
addition, the parties agree that neither party shall disclose the Confidential
Material, or any part thereof, to any person or entity without the prior written
consent of the other; and each party shall treat the Confidential Material as
confidential and proprietary information of the other and the Confidential
Material of the other as valuable business and property rights. Notwithstanding
anything to the contrary herein, the representations and obligations of the
parties contained within this paragraph 10 shall survive any termination or
expiration of this Agreement. The parties specifically acknowledge that any oral
disclosures of Confidential Material, when identified as proprietary,
confidential, or private at the time of disclosure, fall within the protections
otherwise provided to Confidential Material. It shall not be a breach of this
provision for either party to disclose Confidential Material pursuant to an
order or ruling from a judicial court, administrative tribunal or other body of
authority with competent jurisdiction. In the event that one party receives an
order or ruling to from a judicial, administrative or other authority with
competent jurisdiction, to disclose Confidential Material ("Compelled Party"),
the other party ("Objecting Party") shall have the right to review and object to
any such disclosure and Compelled Party shall not disclose any Confidential
Material until such time as Objecting Party has completed its review of the
order or ruling and any resulting objection by Objecting Party is resolved.
The obligations of this Paragraph 10 shall not apply to any Confidential
Material which (a) is or becomes available to the public through no breach of
this Agreement; (b) is independently developed by a party without the use of
Confidential Material of the other
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party; (c) is approved for release by written authorization of the disclosing
party, but only to the extent of and subject to such conditions as may be
imposed in such written authorization; (d) is required by law or regulation to
be disclosed, but only to the extent and for the purposes of such required
disclosure; or (e) is disclosed in response to a valid order of a court or other
governmental body of the United States or any political subdivisions thereof,
but only to the extent of and for the purposes of such order; provided, however,
that the party receiving the Confidential Material shall first notify the other
party hereto of the order and permit the disclosing party to seek an appropriate
protective order.
11. INDEMNIFICATION: Subject to the liability limitations provided in
Section 9 above, DNA hereby agrees to indemnify and hold harmless DWANGO and its
predecessors, successors and assigns, and their officers, directors,
shareholders, employees, agents, accountants, attorneys and independent
contractors, from any and all causes of action, liabilities, demands, fines,
claims, costs and expenses (including the fees and expenses of legal counsel and
any expert witnesses) arising out of, relating to, or in connection with DNA's
performance of its obligations hereunder, including all warranties provided
herein, or DNA's breach thereof. DWANGO shall have the right, subject to prior
written approval from DNA, to defend or settle any such action or proceeding
with counsel of its choice. DNA agrees to cooperate to the fullest possible
extent with DWANGO in any such defense effort.
Subject to the liability limitations provided in Section 9 above, DWANGO
hereby agrees to indemnify and hold harmless DNA and its predecessors,
successors and assigns, and their officers, directors, shareholders, employees,
agents, accountants, attorneys and independent contractors, from any and all
causes of action, liabilities, demands, fines, claims, costs and expenses
(including the fees and expenses of legal counsel and any expert witnesses)
arising out of, relating to, or in connection with DWANGO's performance of its
obligations hereunder, including all warranties provided herein, or DWANGO's
breach thereof. DNA shall have the right, subject to prior written approval from
DWANGO, to defend or settle any such action or proceeding with counsel of its
choice. DWANGO agrees to cooperate to the fullest possible extent with DNA in
any such defense effort.
12.1. TERM AND TERMINATION: This Agreement shall take effect the Effective
Date, and shall remain in full force for a Period of eight (8) years from the
date, unless sooner terminated in accordance with the terms of this Agreement.
The parties hereto are entitled to offer in writing, ninety (90) days
immediately prior to expiration, to negotiate in good faith to extend the term
of this Agreement. Upon mutual agreement of the parties hereto, this Agreement
may be renewed or extended for successive terms, pursuant to mutual agreed terms
and conditions.
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Either party may, without prejudice to any other rights or remedies, terminate
this Agreement by giving a written notice to the other such written notice shall
take immediate effect, if any of the following events should occur:
(a) if either party fails to make any payment to the other when due under
this Agreement and such failure continues for more than thirty (30)
calendar days after receipt of a written notice specifying the default;
(b) If DNA makes what would generally be regarded by standards applicable
in the United States any obscene or pornographic use of the Licensed
Property; or any use of the Licensed Property disparaging of DWANGO or its
products or services; or any use that is unlawful in the Territory or
encourage activities which are unlawful in the Territory; and DNA fails to
cure or cease such use within thirty (30) days after notice from DWANGO;
(c) if either party: (i) makes an assignment for the benefit of creditors
of any interest subject to this Agreement; (ii) files a petition or
application under any foreign, state, or United States Bankruptcy act,
receivership statute or similar act or statute, as they now exist or are
hereafter amended; or (iii) is the subject of such an above referenced
petition or application filed by a third party, and such petition or
application is not resolved favorably for such party within one hundred
eighty (180) days thereafter;
(d) Failure by DNA to launch its service within 2 years after the Execution
Date and/or if DNA discontinues operation of the service thereafter for a
continuous period of more than 6 consecutive months and the service is not
restarted within 60 days after written notice of such from Dwango.
12.2. EFFECT OF TERMINATION: Upon termination of the Agreement, DNA agrees
it shall immediately cease any and all use of the Licensed Property.
Notwithstanding anything to the contrary above, for a period of 6 months after
the termination of the Agreement, DNA may continue to sell DWANGO Related
Technology produced prior to the termination of the Agreement.
13. INTENT TO COMPLY WITH LAWS: DWANGO and DNA each hereby acknowledge
their intent to comply with all applicable laws of the United States and Japan.
Neither party will take or refrain from taking any action, and neither party
will request or require the other party to take or refrain from taking any
action that will cause either party to be in violation of any applicable law,
regulation or custom which has the force of law, of any
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jurisdiction in Japan or the United States including, without limitation, the
United States Foreign Corrupt Practices Act of 1977, as amended, or the export
control or anti-boycott laws and regulations of the United States. The parties
hereby specifically acknowledge their familiarity with and understanding of such
laws.
14. OFFICIAL LANGUAGE: The English language text of this Agreement shall
be, for all purposes, the official text of this Agreement between the parties
hereto.
15. CHOICE OF LAW AND VENUE: This Agreement shall be governed, construed
and enforced in accordance with the laws of Japan. Any claim or lawsuit arising
out of this Agreement must be brought in the District Court of Tokyo.
16. SEVERABILITY: Each and every clause of this Agreement is severable
from the whole and shall survive unless the entire Agreement is declared
unenforceable.
17. ENTIRE AGREEMENT: This Agreement constitutes the entire understanding
between DWANGO and DNA regarding the subject matter hereof. No modification or
change in this Agreement shall be valid or binding upon the parties unless in
writing, executed by the parties to be bound thereby.
18. DELIVERY OF NOTICES AND PAYMENTS: Unless otherwise directed in
writing by the parties, all notices given hereunder shall be sent.via e-mail
with receipt confirmed (notice to DNA at xxxxxx@xxxxxx.xxx, notice to DWANGO at
xxxx@xxxxxx.xx.xx, or at such other address as may be designated by each party)
or DHL or another equivalent express delivery service to the addresses set forth
on the first page of this Agreement. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the day after the date sent via facsimile or two days
after the date sent via DHL or other equivalent express delivery service.
19. ASSIGNABILITY: This Agreement is personal to DWANGO and DNA, and,
except as authorized herein, neither party shall sublicense, transfer, convey,
assign or franchise any of the rights granted herein without the express written
permission of the other party hereto.
20. NOT A PARTNERSHIP: This Agreement does not constitute and shall not
be construed as constituting a partnership or joint venture between the parties
hereto, or an employee-employer relationship. Neither party shall have any right
to obligate or bind the
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other party in any manner whatsoever, and nothing herein contained shall give,
or is intended to give, any rights of any kind to any third persons.
21. COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which will be deemed to be an original, and each of which alone and all
of which together, shall constitute one and the same instrument, but in making
proof of this Agreement it shall not be necessary to produce or account for each
copy of any counterpart other than the counterpart signed by the party against
whom this Agreement is to be enforced. This Agreement may be transmitted by
facsimile, and it is the intent of the parties for the facsimile of any
autograph printed by a receiving facsimile machine to be an original signature
and for the facsimile and any complete photocopy of the Agreement to be deemed
an original counterpart.
22. ATTORNEY'S FEES: The prevailing party in any legal proceedings to
enforce this Agreement or to recover damages because of an alleged breach
thereof, shall be entitled to recover its reasonable attorneys' fees and costs.
23. CAPTIONS: All captions in this Agreement are intended solely for the
convenience of the parties, and none shall affect the meaning or construction of
any provision.
24. SURVIVAL OF AGREEMENT: Upon termination or expiration of this
Agreement for, any reason, the following provisions of this Agreement shall
survive: Sections 9, 10, 11, 12.2, 13, 14, 15,16,17, 18, 19, 20, 21, 22, 23 and
24.
The undersigned hereby agree to the terms and conditions of this Agreement
effective on the Execution Date first set forth above.
DWANGO NORTH AMERICA, INC. DWANGO COMPANY, LTD.
BY: /s/ Xxxxxx X. Xxxxxxx BY: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxx, President and Xxxxxxx Xxxxxxxxx, President
Chief Executive Officer
14
