FirePlug Computers Inc.
-----------------------
Agreement for Computer and/or Programming Services
Customer Name and Address:
Digital Video Technology Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
XXX 00000
Hereinafter referred to as "Customer"
Agreement No.990401
FirePlug Computers Inc. shall furnish to Customer the following goods and
services, as available:
Design and system/software development, documentation, testing, project
management and implementation of the DVD Technology Video Jukebox system as
outlined in the "Proposal to create a Video Jukebox System for DVDTechnology"
document attached.
Senior consultants' rate: US$12,000/month
US$3,500/week
Daily and other rates, travel, disbursements per current rate schedule
(attached)
All software and intellectual property created by FirePlug and/or its
contractors and sub contractors under this contract will become the property of
Customer upon payment of all amounts billed under this contract, subject to
software licenses and agreements entered into as necessary with 3rd parties.
All actions and costs arising from the sale or use of software/systems created
under this contract will be borne by Customer. FirePlug will endeavor to inform
Customer of potential license and/or patent concerns as they arise. Customer
will likewise inform FirePlug of any license and/or patent concerns that
Customer has with respect to systems created proposed and created under this
contract.
FirePlug's agreement to furnish goods and services is expressly conditioned upon
the terms and conditions set forth in this Agreement whether on the face,
reverse side, attachments indicated above or documents incorporated by
reference. Any other terms and conditions are rejected regardless of content,
timing or other method of communication to FirePlug.
Terms and Conditions
1. This Agreement constitutes the entire agreement between FirePlug and
Customer, and supersedes all prior contracts, agreements, proposals,
understandings, representations, correspondence or communications relative to
the subject matter hereof. Customer acknowledges that it has not been induced to
enter into this Agreement by any representations or promises not specifically
stated herein. This Agreement may be modified only by a written instrument
executed by authorized representatives of FirePlug and Customer.
2. TERM OF AGREEMENT: This Agreement becomes effective on the date accepted by
FirePlug and expires on the date specified. If no date is specified, either
party may terminate this Agreement upon 30 days prior written notice.
3. PRICES AND PAYMENT TERMS:
3.1. Customer agrees to pay for all goods and services furnished by FirePlug or
used by Customer at the prices specified, or if none are specified, at prices in
effect on the date of usage.
3.2. FirePlug may revise the prices and pricing data set forth in this Agreement
upon 30 days prior written notice.
3.3. Prices do not include taxes. Customer shall pay any applicable sales, use,
personal property or similar taxes, customs duties, and any governmental charges
based on transactions hereunder, exclusive of FirePlug's net income.
3.4. Terms are net cash payable as specified in this agreement or within 30 days
after date of invoice, unless Customer is notified otherwise by FirePlug in
writing.
4. PROPRIETARY INFORMATION: Proprietary information disclosed by either party to
the other for the purposes of this Agreement which is in tangible form and is
clearly marked as such, shall be protected by the recipient in the same manner
and to the same degree that the recipient protects its own proprietary
information, except that each party may use or disclose information that is or
becomes publicly available, is already lawfully in its possession, is
independently developed by it, or is lawfully obtained from third parties.
5. TITLE: Unless otherwise specifically stated in this Agreement, FirePlug
retains title to and reserves all rights in the programs, data, information or
other property developed or provided by FirePlug hereunder.
6. REVISIONS: FirePlug may, without notice, revise the goods and services
offered, method of operation, documentation provided, and equipment used, and
make normalization changes to billing algorithms.
7. SECURITY: Precautions have been taken by FirePlug to minimize the potential
for loss or alteration of or improper access to Customer programs, data,
information or other property while on FirePlug's systems, but FirePlug does not
guarantee their integrity or security. Customer is responsible for utilizing, as
desired, those features of the FirePlug system which enhance the security of
Customer's programs, data, information and materials. Customer is responsible
solely for security on Customer owned and operated machines unless otherwise
stated.
8. PROPERTY: (applies to physical property if it forms part of the details of
this agreement, and to intellectual property and materials normally resident on
FirePlug's system(s) in any case)
8.1. Customer shall use any of FirePlug's property in accordance with this
Agreement; shall not misuse or modify and shall otherwise protect and maintain
such property; shall maintain any labels which identify ownership; shall not
retain such property as a setoff or in full or partial satisfaction of any claim
against FirePlug; and shall return such property upon termination of usage in
accordance with FirePlug's instructions and in the same condition as received,
normal wear and tear excepted.
8.2. Customer will indemnify and hold FirePlug harmless from any costs, expenses
or liability resulting from any claim based on Customer's use or possession of
FirePlug's property, excluding claims of FirePlug's negligence or patent
infringement. Such indemnity shall survive the termination or expiration of this
Agreement.
8.3. Customer's interfacing equipment and methods shall be compatible with
FirePlug's computer system(s).
8.4. Any goods owned by FirePlug and supplied to Customer for installation at
Customer's premises are AT THE RISK OF Customer from the time the Customer
receives them until they are removed at the termination of this Agreement or any
subsequent Agreement; and the Customer shall keep the goods insured in a
sufficient amount to cover the replacement values shown, FirePlug to be the
payee.
9. AVAILABILITY OF PROGRAM LIBRARIES AND DATA FILES: FirePlug's program
libraries and data files available for general use are set forth in current
publications, documentation and supplemental product announcements. Use of other
program libraries and data files requires prior written approval.
10. DISPOSITION OF Customer PROGRAMS, DATA, INFORMATION OR OTHER PROPERTY: If
Customer fails to remove or instruct FirePlug on disposition of Customer
programs, data, information or other property on FirePlug's premises or
equipment within 30 days after termination of this Agreement or written notice
from FirePlug, FirePlug may destroy or otherwise dispose of same.
11. DEFAULT: If Customer becomes bankrupt or otherwise insolvent or fails to pay
for services rendered in accordance with the terms hereof, FirePlug may, at its
sole option and without notice, discontinue performance and terminate this
Agreement for default and pursue any other remedies available at law or in
equity. FirePlug's failure to exercise any of its rights shall not constitute a
waiver of any past, present or future right or remedy. Upon termination for
default, FirePlug may enter Customer's premises without a court order and take
possession of FirePlug's property.
12. WARRANTIES, REMEDIES AND DISCLAIMERS:
12.1. Other warranties, remedies and disclaimers may be found in Attachments.
12.2. Except as noted in subparagraph 12.3 below, FirePlug warrants any
processing or storage services furnished on FirePlug's systems hereunder against
malfunctions, errors or loss of data which are due solely to errors on the part
of FirePlug, its equipment or its employees. If Customer notifies FirePlug in
writing and furnishes adequate documentation of any malfunction, error or loss
of data covered by the above warranty within 30 days after its occurrence then:
(1) with respect to malfunction or error, FirePlug shall grant a credit to the
amount charged by FirePlug for that portion of such service which falls within
reasonable checkpoint intervals; and
(2) with respect to lost data, FirePlug shall (at FirePlug's discretion) either:
(i) regenerate without charge any lost data from FirePlug's normal backup
materials or from Customer specific backup materials if Customer has specified
and paid for more frequent backups, or (ii) regenerate without charge any lost
data if the Customer provides adequate backup materials in machine readable
form, or (iii) if Customer does not provide such backup materials, grant
Customer a credit in an amount equal to the FirePlug estimated cost of
regeneration, such estimate made as if such backup material were available.
12.3. FirePlug MAKES NO WARRANTY, AND HEREBY DISCLAIMS ANY LIABILITY WITH
RESPECT TO SOFTWARE RESIDING IN FirePlug's VENDOR LIBRARY OR ANY DATA BASE OR
SOURCE DATA, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, ADEQUACY, COMPLETENESS,
USEFULNESS OR RELIABILITY, WHICH IS MADE AVAILABLE TO Customer BY FirePlug, OR
USED BY Customer IN CONNECTION WITH ANY GOODS OR SERVICES COVERED BY THIS
AGREEMENT.
12.4. FirePlug's OBLIGATIONS UNDER THE WARRANTIES SET FORTH IN THIS AGREEMENT
ARE CONDITIONED UPON REQUEST BY FirePlug OF NOTICE AND ADEQUATE DOCUMENTATION AS
STATED IN THIS AGREEMENT. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT,
THERE ARE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH
PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY PARTICULAR IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, THE
REMEDIES PROVIDED FOR IN THIS CLAUSE 12 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
REMEDIES.
13. EXCUSED PERFORMANCE: FirePlug shall not be liable for, and is excused from
any failure to deliver or perform or for delay in delivery or performance due to
causes beyond its reasonable control, including but not limited to, acts of
nature, governmental actions, fire, labor difficulty, shortages, civil
disturbances, transportation problems, interruptions of power or communications,
failure of FirePlug's suppliers or subcontractors, or natural disasters.
14. ASSIGNMENT OR TRANSFER: Neither this Agreement nor any rights or obligations
hereunder shall be assigned or otherwise transferred by Customer without the
prior written consent of FirePlug
15. PUBLICITY: Neither party shall use the name of the other in publicity
releases, advertising, or similar activity without the prior written consent of
the other, except that the Customer hereby consents to FirePlug including
Customer's name in its client list.
16. LIMITATION OF LIABILITY:
16.1 IN NO EVENT SHALL FirePlug's SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO
Customer OR ANY THIRD PARTY FOR DAMAGES RESULTING FROM Customer's USE OF ANY
APPLICATION PROGRAM, DATA BASE, SOURCE DATA, OR RELATED DOCUMENTATION.
16.2. IN NO EVENT SHALL FirePlug BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUE BY
Customer OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES INCURRED OR SUFFERED BY Customer, EVEN IF FirePlug HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, Customer AGREES THAT
FirePlug's TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF, OR
RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT
LIMITED TO STRICT LIABILITY AND NEGLIGENCE), WARRANTY OR ON OTHER LEGAL OR
EQUITABLE GROUNDS, SHALL BE LIMITED TO GENERAL MONEY DAMAGES AND EXCEPT AS
SPECIFICALLY PROVIDED IN THE REMEDIES SET FORTH IN THE CLAUSE OF THIS AGREEMENT
ENTITLED, "WARRANTIES, REMEDIES AND DISCLAIMERS", SHALL NOT EXCEED AN AMOUNT
EQUAL TO: (i) THE TOTAL AMOUNT ACTUALLY PAID BY Customer HEREUNDER DURING THE
THREE MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM AROSE; OR (ii)
$100,000, WHICHEVER IS LESS.
17. APPLICABLE LAW: This Agreement shall be governed by the laws of the Province
of British Columbia, Canada.
Accepted by:
For Customer:
/s/ Xxx X. Xxxxxxxxx, Chief Executive Officer
Date: 8/4/99
For FirePlug:
/s/ Xxxxxxx Xxxx, President
Date: 5/10/99
