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EXHIBIT 10.32
MARKETING ALLIANCE AGREEMENT
This Marketing Alliance Marketing Agreement is made and entered into as
of July 3, 1996 (the "Effective Date") between INSTANT VIDEO TECHNOLOGIES,
INC., a Delaware corporation (hereinafter "IVT") and VYVX, INC., a Delaware
corporation (hereinafter "Vyvx"), with reference to the following facts:
A. IVT is engaged in the design, development and licensing of
interactive network technologies including certain software related to the
faster-than-real-time transmission of audio and video programming generally
referred to by IVT as Burstware(TM) ("Burstware");
B. Vyvx is a developer and provider of network services to various
companies throughout the United States and is currently developing an Archive
Architecture System on which it intends to carry video content material (the
"Vyvx Network");
C. The parties desire to enter into a marketing alliance, the purpose of
which is to expand the licensing of Burstware and connectivity to the Vyvx
Network upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual convenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Establishment of Marketing Alliance
(a) General. IVT an Vyvx hereby agree to cooperate with each
other in the marketing of licenses of Burstware and of connectivity to the Vyvx
Network in the post-production, television, film and music industries for sale
to those identified customers ("Target Accounts") within the territory (the
"Territory") indicated in Exhibit A attached hereto (such Target Accounts,
within such industries and the Territory, are hereinafter referred to as the
"Field of Use"). The parties may, from time to time, during the term of this
Agreement (the "Term") add to the Territory and list of Target Accounts as the
parties may mutually agree.
(b) Scope of the Alliance. IVT shall be authorized and
responsible for the management of the cooperative marketing arrangement
contemplated by this Agreement (the "Alliance"). In this regard, the parties
mutually agree to work together to accomplish certain milestones as set forth on
Exhibit B attached hereto (the "Milestones"). IVT shall be responsible for
providing and managing the human resources necessary to accomplish the
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Milestones. Said human resources may include additional individuals to be
provided by Vyvx as designated by Vyvx in its discretion, which individuals
shall be solely under the control and management of Vyvx. Both parties
acknowledge that there is no assurance that any of the Milestones will be
accomplished and that the failure to accomplish any or all of the Milestones
shall not constitute a default under this Agreement. Notwithstanding the
foregoing, both parties will use commercially reasonable efforts to exploit
Burstware products and applications and to promote connectivity to and
transmission on the Vyvx Network within the field of use in order to accomplish
the Milestones.
(c) Independent Contractor. Each party's relationship with the other
during the Term will be that of an independent contractor. Neither party will
have, nor will represent that it has, any authority to bind the other party, to
assume or create any obligation, express or implied, to enter into any
agreements, or to make any warranties or representations, on behalf of the other
party or in the other party's name other than as expressly authorized herein.
Furthermore, each party shall be free to determine the prices for its respective
products and services independently.
2. Additional Obligations of Vyvx.
(a) Payment. In consideration of IVT's agreement to manage and staff the
Alliance, upon the execution and delivery of this Agreement, Vyvx shall provide
IVT with a one-time non-refundable payment in the amount of Two Hundred Fifty
Thousand Dollars ($250,000).
(b) Marketing, Advertising and Technical Information. Vyvx will provide
IVT with marketing and technical information concerning the Vyvx Network and IVT
will provide Vyvx with marketing and technical information concerning Burstware.
In addition, each party may provide the other upon mutual agreement with such
other sales aids as may be reasonably necessary to accomplish the objective of
the Alliance.
(c) Cooperation. Vyvx shall cooperate with IVT's efforts in connection
with the Alliance. Such cooperation shall include, without limitation, the
timely response to all questions arising from IVT or potential customers
relating to the Vyvx Network. Similarly, IVT shall cooperate with Vyvx's efforts
in connection with the Alliance. Such cooperation shall include, without
limitation, the timely response to all questions arising from Vyvx or potential
customers relating to Burstware.
3. No Commissions. Vyvx shall be entitled to retain all consideration
received by it related to the sale of Vyvx Network-related services. IVT shall
be entitled to retain all consideration received by it related to the sale or
license of
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Burstware. Neither party shall be entitled to any commissions or other
compensation hereunder in connection with revenues generated from the license
or sale of the other party's products or services.
4. Records and Reports.
(a) Reports. IVT shall provide Vyvx with periodic reports
(which may be in written or oral form) which shall keep Vyvx informed as to the
Alliance's activity and the status of the Alliance's progress.
(b) Records. IVT will create an electronic database of
information relating to IVT's performance of its obligations under this
Agreement, and will permit on-line examination thereof by Vyvx personnel at all
reasonable times during the Term and for two (2) years subsequent thereto.
5. Indemnification; Limitation of Liability. Each party hereby
indemnifies and holds the other party (the "Indemnified Party") harmless from
any claims, losses, damages, costs and expenses (including reasonable attorneys
fees) for personal injury, property damage or any other liability to the extent
arising from (i) the negligence or willful misconduct of the party providing
the indemnification (the "Indemnifying Party") or its employees or (ii) the
infringement or misappropriation of any intellectual property rights of a third
party by the Indemnifying Party.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, PURSUANT TO OR
IN CONNECTION WITH THIS AGREEMENT.
6. Proprietary Rights. During the Term, each party is authorized by
the other (the "Authorizing Party") to use the trademarks and logos used by
Authorizing Party for its products and services in the course of the
advertisement and promotion of such products and services hereunder; provided,
however, that the Authorizing Party shall be provided with copies of any such
uses in advance. Neither party shall obtain any ownership right in the other
party's trademarks and logos by virtue of the foregoing authorization and, upon
expiration or termination of this Agreement, each party will cease all display,
advertising and use of the Authorizing Party's trademarks, logos and
designations. The parties shall, in using such trademarks or logos, reproduce
such trademarks and logos accurately and faithfully.
7. Duration and Termination of Agreement.
(a) Term. This Term of this Agreement shall be from the Effective
Date (as set forth in the first paragraph of this Agreement) until September
15, 1996, unless extended upon such terms and conditions (including, the
payment of additional consideration to IVT) as may be agreed to in writing by
the
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parties. Notwithstanding the provisions of this Agreement, the Term of this
Agreement may be terminated prior to September 15, 1996 as set forth below.
(b) Termination for Cause. Either party may terminate this Agreement at
any time prior to September 15, 1996 in the event that the other party fails
to perform any material obligation or is in default with respect to any
material term or condition undertaken under this Agreement and such failure or
default continues unremedied for a period of fifteen days following written
notice thereof.
(c) Termination By Mutual Consent. This Agreement may be terminated
at any time by the mutual written consent of the parties.
(d) Automatic Termination. This Agreement terminates automatically,
with no further act or action of either party, if a receiver is appointed for
either party or its property, either party makes an assignment for the benefit
of its creditors, any proceedings are commenced by, for or against either party
under any bankruptcy, insolvency or debtor's relief law, either party is
liquidated or dissolved or the assets of either party are nationalized.
(e) Survival. The parties' respective rights and obligations under
Sections 4, 5, 6, 8 and 9 shall survive expiration and/or termination of this
Agreement.
8. Public Pronouncements. The parties shall jointly develop a press
release announcing the formation of the Alliance. Except as otherwise provided
by law, all press releases and public pronouncements concerning the Alliance
shall be subject to the review and approval of both parties.
9. General.
(a) Assignment. This Agreement shall not be assignable by either party
without the prior written consent of the other, except that either party may
assign this Agreement to its parents or wholly-owned subsidiaries of its
parent.
(b) Notices. All notices and demands hereunder shall be in writing
and shall be served by personal service, by confirmed facsimile, by
nationally-recognized overnight courier, or by certified or registered mail,
return receipt requested, at the address of the receiving party set forth in
this Agreement (or at such different address as may be designated by such party
by written notice to the other party).
(c) Governing Law and Choice of Forum. This Agreement shall be governed
by and construed in accordance with the laws of
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the State of Delaware, (except that body of laws controlling conflicts of law).
The parties agree that any litigation regarding this Agreement shall be filed
in and heard by the state or federal courts with jurisdiction to hear such
disputes in San Francisco County, California or the State of Oklahoma, and the
parties hereby submit to the personal jurisdiction of such courts.
(d) Entire Agreement. This Agreement, together with any confidentiality
agreements between the parties, constitutes the entire Agreement between the
parties pertaining to the subject matter hereof, and supersedes in their
entirety any and all written or oral agreements previously existing between the
parties with respect to such subject matter.
(m) Attorneys' Fees. In the event any litigation is brought by either
party in connection with this Agreement, the prevailing party in such
litigation shall be entitled to recover from the other party all the costs,
attorneys' fees and other expenses incurred by such prevailing party in the
litigation.
(i) Severability. In the event any of the provisions of this Agreement
shall be held by a court to be unenforceable, the other provisions of this
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
INSTANT VIDEO TECHNOLOGIES, INC. VYVX, INC.
a Delaware corporation a Delaware corporation
By: /s/ XXXX X. XXXXXXXX By: /s/ XXX XXXXXXX
----------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxx Xxxxxxx
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Title: President/CEO Title: Director Advanced Technologies
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Notice Address: Notice Address:
000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxxxx Depot, 000 Xxxx 0xx Xx.
Xxx Xxxxxxxxx, XX 00000 Xxxxx, Xxxxxxxx 00000
facsimile: 000-000-0000 facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx Attention: Xxx Xxxxxxx
with a copy to:
Vyvx General Counsel
4100 Bank of Oklahoma Tower
0 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
facsimile: 000-000-0000
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EXHIBIT A
Territory
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California
New York
United Kingdom
Such areas of Canada as shall be mutually
agreed upon in writing by the parties
Target Accounts
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Sohonet
525 Post Production
The Post Group
GTE Entertainment
Showtime Network
Xxxx-XX
Sony Music Studios (post-production facilities)
U2 1997 World Tour
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EXHIBIT B
Milestones
1. Connectivity from the Mill (post-production facility and participant
of Sohonet, located in London, England) to selected post-production
facility(ies) located in Hollywood, California. Target Date: July 15, 1996
2. Execution of two 10-User Burstware(TM) site licenses and
corresponding connectivity to the Vyvx Network with 525 Post Production Company
and the Post Group. Target Date: September 1, 1996
3. Execution of a 10-User Burstware(TM) site license and corresponding
connectivity to the Vyvx Network to at least one of the following: GTE
Entertainment, Showtime Network, Xxxx-XX, Sony Music Studios (post-production
facilities). Target Date: September 1, 1996
4. Written agreement outlining definitive objectives regarding the goal
of the Alliance with respect to the licensing of Burstware(TM) and
corresponding connectivity to the Vyvx Network in conjunction with U2's 1997
World Tour. Target Date: September 15, 1996
