EXHIBIT 10.30
BUNDLING AGREEMENT
WITH AUTHORIZATION TO REPLICATE PRODUCTS
This Agreement covers the terms under which Vendor authorizes Kodak to
distribute Vendor promotional products when bundled with Kodak products. This
Agreement also covers the terms under which Vendor authorizes Kodak to
replicate the Vendor products it distributes.
This Agreement, comprised of this cover page, the attached terms and
conditions, and any attached schedules and exhibits, is the complete
Agreement between the parties and supersedes any prior oral or written
communications with respect to the subject matter of this Agreement.
By signing below, each party agrees to the terms of this Agreement. Once
signed, any copy of this Agreement that is reliably reproduced may be
considered an original.
Agreed to: Agreed to:
GALACTICOMM, INC. (Vendor) XXXXXXX KODAK COMPANY (Kodak)
/s/ XXXXX XXXX /s/ P. C. KOSIERACKI
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Authorized Signature Authorized Signature
XXXXX XXXX P. C. KOSIERACKI
-------------------------------- -----------------------------------
Printed Name Printed Name
CHIEF BUSINESS OFFICER
CEO DIGITAL & APPLIED IMAGING
-------------------------------- -----------------------------------
Title Title
5/21/97 5-29-97
-------------------------------- -----------------------------------
Date Signed Date Signed
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BUNDLING AGREEMENT / AUTHORIZATION TO REPLICATE PRODUCTS
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 "Demo Product" means Vendor's promotional software, equipment or
marketing information about such items, identified on Schedule 1 and provided
to Kodak in digital form for inclusion in the Bundle.
1.2 "Bundle" means a package of goods containing at least one Demo
Product and Kodak digital camera software and, optionally, a Kodak digital
camera, which is marketed under an all inclusive price.
1.3 "Commercial Product" means Vendor's commercial implementation of the
Demo Product, in the form usually sold to end users, identified on Schedule 1.
2. GRANT OF RIGHTS
2.1 Vendor grants Kodak the nonexclusive, worldwide right to distribute,
promote, market and advertise the Demo Products, but only when the Demo Products
are distributed to resellers or end users as part of a Bundle.
2.2 Vendor grants Kodak the nonexclusive, worldwide right to replicate the
Demo Products without alteration for distribution by Kodak under the license
granted in Section 2.1.
3. VENDOR OBLIGATIONS
3.1 Vendor will deliver or otherwise make available to Kodak at the
delivery address set forth on Schedule 1:
(i) a master for each of the Demo Products in digital form on diskette
or CD;
(ii) all applicable artwork associated with the Demo Products and
Commercial Products as digital encapsulated Postscript (EPS) files.
3.2 Vendor will notify Kodak of any changes to the Demo Products or artwork
prior to the date when Vendor implements the change, and will promptly provide
Kodak with the necessary material required for Kodak to replicate the changed
Demo Products or artwork.
3.3 Vendor will incorporate in the Demo Product a means for identifying
those sales of Commercial Product which result from the conversion of the Demo
Product into a Commercial Product by an end user who receives a Bundle.
3.4 Vendor or its agent will take orders, receive payment from and deliver
Commercial Product to end users, and pay commissions to Kodak as provided in
Section 5. Vendor may change the Commercial Product price to end users at its
sole discretion.
3.5 Vendor or its agent is responsible for offering and providing support
to end users of the Demo Products and Commercial Products. Kodak will have no
obligation to provide support to end users of the Demo Product or Commercial
Product.
4. KODAK OBLIGATIONS
4.1 Kodak will use its best efforts to include the Demo Product in the next
CD-ROM pressing for the Bundle, but is not obligated to do so.
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4.2 Kodak will, at its option, incorporate any changes to the Demo Products
or artwork provided by Vendor in any updates to the Bundle.
4.3 To assist Vendor in providing support to end users, Kodak will provide
Vendor with one (1) copy of the Bundle, and one (1) Kodak digital camera if not
included in the Bundle, upon commercial availability.
5. PAYMENTS
5.1 Vendor will pay Kodak a commission for each copy of the Commercial
Product sold by Vendor or its agent to an end user as a result of the Bundle
marketing performed by Kodak. The per copy commission rate for each Commercial
Product is as stated on Schedule 1. Commissions are based upon gross sales of
Commercial Product as described herein, less any applicable shipping and
handling charges and sales tax.
5.2 Commissions are payable by Vendor to Kodak quarterly. Within 30 days
after the end of each calendar quarter, Vendor will mail:
(i) a written statement setting forth the basis for the Vendor's
calculation of the commissions due to the delivery address stated on Schedule 1,
and
(ii) a check covering payment of all required commissions, to the
remittance address set forth on Schedule 1. The commission check and/or check
stub will include the Reference Number provided on Schedule 1.
5.3 In order that the commissions and reports may be verified, Vendor
agrees to keep full, complete and accurate books and records in accordance with
generally accepted accounting principles covering the Commercial Products sold
and commissions payable under this Agreement for a period of three years after
the relevant transaction which gave rise to the accrual of a commission
obligation.
5.4 It is agreed that the books and records of Vendor may be audited from
time to time upon written notice at least five (5) business days in advance,
during Vendor's normal business hours, but not more than once in each calendar
year, by an independent certified public accountant appointed by Kodak and
reasonably acceptable to Vendor, to the extent necessary to verify the accuracy
of the commission statements and payments. Such audit shall be completed at
Kodak's own expense, at Vendor's location unless otherwise agreed to by the
parties, and limited to an audit of the commission reports for the two years
preceding the date of the audit, except that if any discrepancy or error
exceeding five percent of the money actually due is found in connection with the
computation, the reasonable cost of such audit shall be borne by Vendor, and the
scope of the audit may be expanded to cover the three years preceding the date
of the audit.
5.5 Commission payments are to be made in U.S. dollars.
6. MARKETING, ADVERTISING AND PROMOTION
6.1 For use on brochures, advertising, packaging and other promotional
material for the sale of the Bundles created under this Agreement, Kodak may
itself, and may authorize Kodak authorized resellers to, without Vendor's prior
approval:
(i) reproduce without alteration the artwork or Demo Product or
Commercial Product packaging; or
(ii) make factual statements describing a Demo Product or Commercial
Product without using any stylized form of such product names or other stylized
logo or symbol appearing on such products.
6.2 Except as provided in Section 2 concerning replication of Demo
Products, and in the preceding paragraph, no license or rights under any
trademark, trade name, or trade dress of
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Vendor is granted under this Agreement, nor may any reference to any trademark,
trade name or trade dress of Vendor appear on the Bundle, or on packaging, or
related advertising or promotional materials for the Bundle without Vendor's
express prior written consent.
6.3 Kodak acknowledges Vendor's ownership of the Vendor trademarks and
trade dress that appear on the Demo Product and the Commercial Product, and that
every use of these trademark and trade dress inures solely to the benefit of
Vendor.
6.4 Kodak or Vendor may issue press releases relating to the Bundle. The
content of such releases will be mutually agreed upon between the parties
hereto.
7. WARRANTY.
7.1 Vendor warrants that it has the right and power to enter into this
Agreement and perform its obligations hereunder.
7.2 Vendor warrants that the Demo Products provided to Kodak hereunder are
suitable for worldwide distribution and are in compliance with all applicable
export laws, regulations and other restrictions.
7.3 Kodak warrants that it has the right and power to enter into this
Agreement and perform its obligations hereunder.
8. INDEMNIFICATION
8.1 Vendor will indemnify, defend and hold Kodak harmless against any claim
that the Demo Products distributed hereunder infringe any patent, copyright, or
trademark and Vendor will pay any costs and damages, including reasonable
attorneys' fees, that a court finally awards against Kodak as a result of such
claim or that are paid in settlement thereof, provided Kodak gives Vendor prompt
written notice of such claim and tenders to Vendor the defense and all related
settlement negotiations. Kodak will indemnify, defend and hold Vendor harmless
against any claim that the Kodak products included in the Bundle distributed
hereunder infringe any patent, copyright, or trademark and Kodak will pay any
costs and damages, including reasonable attorneys' fees, that a court finally
awards against Vendor as a result of such claim or that are paid in settlement
thereof, provided Vendor gives Kodak prompt written notice of such claim and
tenders to Kodak the defense and all related settlement negotiations.
8.2 Kodak will indemnify Vendor against any cost, loss, liability, or
expense, including reasonable attorneys' fees, arising out of third party claims
against Vendor relating to the Bundle except to the extent the claim relates to
or is caused by the Demo Product. Vendor will indemnify Kodak against any
cost, loss, liability, or expense, including reasonable attorneys' fees, arising
out of third party claims against Kodak relating to the Demo Product, except to
the extent the claim relates to or is caused by the Kodak products included in
the Bundle.
9. LIMITATION OF LIABILITY
Neither party will be liable to the other for incidental, consequential or
special damages (including punitive or exemplary) arising under this Agreement,
even if advised of the possibility of such damages.
10. TERM AND TERMINATION
10.1 TERM
This Agreement will become effective on the Effective Date, and will
expire on the Expiration Date, both as stated on Schedule 1 of this
Agreement. The parties may renew this
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Agreement thereafter by a mutual written agreement stating new Effective and
Expiration Dates, signed by authorized representatives of the parties.
10.2 TERMINATION FOR CAUSE.
This Agreement may be terminated by either party after a material breach by
the other party upon written notice to the defaulting party specifying the
default, unless the other party cures the default within 30 days after receipt
of the notice.
10.3 EFFECT OF TERMINATION
(i) Upon termination or expiration, each party shall pay to the other
the amount of any commissions, credits, or rebates then due in favor of the
other party.
(ii) Upon termination or expiration, Kodak may continue to sell any
Bundles then in its inventory as necessary to exhaust its inventory of Bundles,
and continue to replicate Demo Products for up to 30 days for the purpose of
filling any unfilled orders which existed on the date of termination or
expiration, subject to continued compliance with all restrictions concerning the
use of Vendor's name and trademarks. Upon exhaustion of its inventory of
Bundles, Kodak will destroy all printed materials, such as packaging and
advertising for Demo Products and Bundles which feature or use Vendor's name or
trademarks.
11. GENERAL PROVISIONS
11.1 INDEPENDENT CONTRACTOR.
Each party is acting in the role of an independent contractor under this
Agreement. Neither party may bind the other party to any legal obligations in
connection with this Agreement.
11.2 SUCCESSORS AND ASSIGNS.
This Agreement will be binding upon, and inure to the benefit of, each of
the parties hereto and its respective successors and assigns.
11.3 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and will become effective when one or more
counterparts have been signed by the parties hereto and delivered to the other
parties.
11.4 ASSIGNMENT.
This Agreement may not be assigned by either party without the prior
written consent of the other party, and any attempted assignment will be void,
except that either party may assign this Agreement without consent to any party
which acquires substantially all the assets of the party, or to any parent or
subsidiary corporation of the party.
11.5 NOTICES.
All notices required or desired to be given hereunder shall be in
writing and if not personally delivered, be sent by facsimile (with a copy by
ordinary mail) or by registered or certified mail to the notice addresses stated
on Schedule 1 of this Agreement. If sent by facsimile or personally delivered,
notices shall be deemed to have been given on the day when sent or personally
delivered. If mailed by registered or certified mail, notices shall be deemed to
have been given when received or when delivery is refused. Either party may
from time to time change the address to which notices to it are to be sent by
giving notice of such change to the other party.
11.6 FORCE MAJEURE.
Except for payments of outstanding commission, neither party shall be
liable for any damages or penalties for delay in delivery when such delay is due
to the elements, acts of God, acts of civil or military authority, fires or
floods, epidemics, quarantine restrictions, war or riots.
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11.7 NON-WAIVER.
Failure by either party to enforce any term or condition of this
Agreement shall not be deemed a waiver of future enforcement of that or any
other term or condition.
11.8 SEVERABILITY.
If any term, provision, covenant or condition of this Agreement is
held invalid or unenforceable for any reason, the remainder of the provisions
shall continue in full force and effect as if this Agreement had been executed
with the invalid portion thereof eliminated.
11.9 GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
substantive laws of the State of New York as applied to agreements entered into
between two residents of the State of New York.
11.10 AMENDMENT.
This Agreement may not be amended except by a written amendment executed
by authorized representatives of both parties.
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BUNDLING AGREEMENT / AUTHORIZATION TO REPLICATE PRODUCTS
Schedule 1
-1- Effective Date: May 20, 1997
Expiration Date: December 31, 1999
-2- Demo Product(s): Demo version of WebCast Personal -- Trial Version
-3- Commercial Product(s) and Commission(s):
COMMERCIAL INITIAL END USER COMMISSION RATE (% of
PRODUCT PURCHASE PRICE PURCHASE PRICE)
---------- ---------------- ---------------------
WebCast Personal *E.S.P. $ 42.95 20%
WebCast ProServer *E.S.P. $849.95 20%
* Estimated Street Price
-4- Delivery address for Demo Products and commission reports:
Xxxxxxx Kodak Company
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-5- Kodak address for notices:
Xxxxxxx Kodak Company
Digital and Applied Imaging
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Contracts and Pricing
Facsimile: 000-000-0000
-6- Vendor address for notices:
Galacticomm, Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
-7- Remittance Address:
Xxxxxxx Kodak Company
00 Xxxxx Xxxxxx XXXX
Xxxxxxxxx, XX 00000-0000
Reference Number: 091-GL-6802-01000-000
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