MARKETING AGREEMENT
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This Marketing Agreement (the "Agreement"), dated as of August 12, 2004,
documents the business relationship between each of Bluestreak Technology, Inc.,
a Texas corporation ("Marketer"), and Zone4Play, Inc., a Nevada corporation
("Developer"), and describes the terms and conditions that will apply to the
marketing and service activities contemplated by this Agreement.
RECITALS
WHEREAS, Developer is the creator and developer of certain standalone
interactive game content ("Content"), as described more particularly in Schedule
1(a), attached hereto and incorporated hereby; and
WHEREAS, Bluestreak is the creator and developer of an interactive TV
platform supporting a large subset of the Macromedia Flash MXTM format (known
hereafter as "Platform"), as already presented to Developers; and
WHEREAS, Bluestreak wishes to make Developer's content (as further defined
in Schedule 1(a)) available to Bluestreak subscribers, customers and/or users;
and
WHEREAS, Zone4Play desires to grant a distribution license to Bluestreak
and authorize Bluestreak as a non-exclusive distributor of Zone4Play Content for
the Bluestreak Platform;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants set forth in the Agreement, Bluestreak and Zone4Play, each
intending to be legally bound, hereby agree to the following:
1. Term. The term of this Agreement will begin on August 16, 2004 (the
"Effective Date"), and, unless earlier terminated as provided in this
Agreement, will continue through August 16, 2006. The Agreement shall
automatically renew at one year intervals at the end of the original term
unless either party notifies the other party within 90 days of the end of
each term.
2. General Relationship. During the term of this Agreement, Developer and
Marketer will each maintain a representative who will be its primary point
of contact in dealing with the other under this Agreement and will have
the authority and power to make decisions with respect to actions to be
taken by it under this Agreement. Either party may change its
representative by giving notice to the other of the new representative and
the date upon which such change will become effective. Each party is an
independent contractor, and this Agreement will not be construed as
constituting either party as partner, joint venturer or fiduciary of the
other, as creating any other form of legal association that would impose
liability on one party for the act or failure to act of the other or as
providing either party with the right, power or authority (express or
implied) to create any duty or obligation of the other. Each party will
continue independently to determine, in its sole discretion, the prices,
terms and conditions under which it offers its products and services to
others. Each party's personnel performing the marketing activities
contemplated by this Agreement will be and remain the employees of such
party. During the term of this Agreement and for a period of 12 months
thereafter, neither party will solicit, directly or indirectly, for
employment or employ any employee of the other who is or was involved in
the performance of any activities under this Agreement without the prior
written consent of the other.
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3. Marketing Activities.
(a) Background. Developer has developed and owns a software product
(such software product and other software designed, developed,
owned, modified or provided by Developer, as delivered to Marketer
hereunder, including all modifications and enhancements made
thereto, together with all specifications, interfaces, libraries,
databases, instructional manuals, user guides, algorithms, file
layouts, file contents, technical literature and related materials
pertaining to such software, are collectively referred to herein as
the "Target Product"). A functional description of the Target
Product is set forth in Schedule 1(a). Developer and Marketer desire
to establish the parameters of a marketing relationship pursuant to
which Marketer will market the Target Product to prospective
customers that are located in Canada, Mexico and the United States
and that conduct business in the Cable Television Multiple System
Operator industry (the "Market").
(b) Marketing Rights. During the term of this Agreement, Marketer will
have the nonexclusive right to market the Target Product on its
Platform to the Market; provided, however, that Developer retains
the right to market the Target Product (i) for its own account on
other platforms and (ii) otherwise to prospective customers with
respect to which Marketer has not timely fulfilled its obligations
hereunder. To the extent that any prospective customer desires to
license the Target Product, such license (and any related
maintenance contract) will be between Developer and such customer
and will be in such form and substance as Developer reasonably
determines (the "Customer License"). In order to conduct the
marketing activities contemplated by this Agreement, the parties
will have the respective responsibilities assigned to them in
Schedule 1(b).
(c) Installation and Support. In consideration for the payments
specified below, for each Customer who enters into a Customer
License as described in Section 3(b), Developer hereby authorizes
Marketer to install the Target Product on the applicable MSO system.
Marketer will coordinate any such installation with the MSO and
Developer in order to minimize disruption and otherwise reasonably
accommodate the MSO's scheduling requirements. Each installation
will be scheduled no less than three (3) weeks prior to the actual
installation date. Developer will make technical personnel available
to Marketer during each such installation in order to support
Marketer's installation of the Target Product. In the event that
during the course of any such installation, Marketer and/or the MSO
identify any bugs, defects, errors, or malfunctions in the Target
Product, Developer will promptly correct any such bugs, defects,
errors, or malfunctions and provide the corrected Target Product to
Marketer for installation. The MSO, Developer, and Marketer will
mutually agree on procedures, response times, and an escalation
protocol for responding to trouble reports from an MSO ("MSO Service
Requests"). Marketer will respond to each such MSO Service Request
via telephone or e-mail. If Marketer, in its reasonable judgment,
determines that the trouble event specified in an MSO Service
Request is caused by Marketer's Platform, Marketer will undertake to
resolve the matter under the terms of Marketer's agreement with the
MSO. If Marketer, in its reasonable judgment, determines that the
trouble event specified in an MSO Service Request is with the Target
Product, Marketer will assist Developer in resolving the matter but
Developer shall be solely responsible for the resolution of the
identified trouble event.
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(d) Payments. i) Marketing. In the event that, as a direct result of
Marketer's marketing activities under this Agreement, a prospective
customer enters into a Customer License with Developer, Developer
will pay to Marketer 10% of the gross revenues due to Zone4Play by
the Cable Television Multiple System Operator less the installation
cost as described in Section 3(d-ii) below. Such amounts will be due
and payable in US Dollars. All amounts will be payable to Marketer
by check or wire transfer, in accordance with payment instructions
provided by Marketer from time to time, so as in each case to
constitute immediately available funds by 12 noon, Central Standard
Time, within thirty (30) days of the due date of receipt of payments
to by Developer no matter what the method of payment. Any amount not
paid when due will bear interest until paid at a rate of interest
equal to the lesser of (i) the prime rate established from time to
time by Citibank of New York plus two percent or (ii) the maximum
rate of interest allowed by applicable law. All payments to be made
by Developer to Marketer pursuant to this Section 3(c) will be net
of any sales or other taxes, levies, fees, charges or other
assessments relating to the license fees that are required to be
paid or payable under the applicable laws of any jurisdiction.
ii) Installation and Service. In addition to the amounts
specified above, in connection with the installation services
described in 3(c) above, Developer will pay Marketer $500.00 for
each installation plus any reasonable travel and travel-related
expenses related to each such installation (collectively, the
"Installation Charge"). The Marketer's installation of updated
and/or corrected versions of the Target Product will also be subject
to the Installation Charge. In consideration of the on-going support
related to MSO Service Requests described in Section 3(c) above,
Developer will also pay Marketer an amount equal to ten percent
(10%) of the gross revenues due to Zone4Play by the Cable Television
Multiple System Operator less the installation cost as described in
Section 3(d-ii) herein. All amounts hereunder will be due and
payable on the date thirty days from the date of receipt of license
fee payments by Developer. All amounts will be payable to Marketer
in US Dollars by wire transfer, in accordance with payment
instructions provided by Marketer from time to time, so as in each
case to constitute immediately available funds by 12 noon, Central
Standard Time, on the payment date no matter what the method of
payment. Any amount not paid when due will bear interest until paid
at a rate of interest equal to the lesser of (i) the prime rate
established from time to time by Citibank of New York plus two
percent or (ii) the maximum rate of interest allowed by applicable
law.
(e) Records. Developer will maintain complete and accurate records
relating to payments required to be made to Marketer during the term
of this Agreement in accordance with generally accepted accounting
principles. Marketer will have the right, during normal business
hours and upon reasonable notice of not less than three business
days, to examine, audit and copy such records with respect to the
subject matter of this Agreement. Any such activities, and all
information and documentation obtained in connection therewith, will
be subject to the confidentiality obligations set forth in Section
5. Developer will retain the records required by this Section 3(d)
for a period of at least three years after payment to Marketer of
the monies to which they relate. Developer will be responsible for
the cost of any audit only if a material shortfall in payments is
discovered.
(f) Expenses. In consideration of the mutual benefits anticipated from
any successful marketing activities under this Agreement, each party
will bear its own respective costs and expenses incurred by it
arising out of such activities, unless otherwise expressly set forth
in this Agreement. For the avoidance of doubt, Developer and
Marketer acknowledge and agree that the foregoing provision is not
intended to be applicable to Marketer's travel and travel-related
expenses incurred in connection with the installation services
described above.
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4. License.
(a) Grant. During the term of this Agreement, Marketer will have a
nonexclusive, nontransferable, royalty-free and limited right
license to use copies of the Target Product in object code form
solely for marketing presentations, demonstrations and similar
promotional activities at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000 and 000 Xxxxx-Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxxx, Xxxxxx
X0X0X0 Xxxxxx ("Marketer Sites"), the premises of a prospective
customer ("Prospect Site") or the premises of a trade show ("Trade
Show Site"), only and all in accordance with the terms and
conditions of this Agreement. In addition, in connection with the
installation services specified above, Developer grants Marketer a
nonexclusive, nontransferable, royalty-free and limited right to use
reproduce, copy, modify, archive, make, have made, display, perform,
install the Target Product as necessary to perform the installation
services described in Section 3(c) above. The license granted in
this Section 4(a) will terminate upon the expiration or termination
of this Agreement for any reason.
(b) Restrictions on Use. During the term of the license granted pursuant
to Section 4(a), Marketer will comply with the restrictions on use
of the Target Product set forth in this Section 4(b).
(i) Scope of Use. The Target Product will be utilized by Marketer
only for the purposes and only at the sites expressly
authorized by this Agreement. Marketer may provide access to
the Target Product solely to those of its full time employees
who require such access for the purposes set forth in this
Agreement, so long as Marketer advises each such employee of
the confidentiality obligations set forth in this Section
4(b). In any event, compliance by each such employee with the
confidentiality obligations set forth in this Section 4(b)
will remain the responsibility of Marketer.
(ii) Disclosure. Except as may be necessary in connection with its
use of the Target Product for the purposes set forth in, and
in accordance with the terms of, this Agreement, Marketer will
not, and will not permit any other person to, disclose,
display, loan, publish, transfer (whether by sale, assignment,
exchange, gift, operation of law or otherwise), license,
sublicense, copy or otherwise disseminate the Target Product,
in whole or in part, to any third party. Marketer will not,
and will not permit any other person to, disassemble,
decompile, reverse engineer or otherwise recreate the Target
Product or corresponding source code.
(iii) Proprietary Rights Notices. Marketer will not alter, conceal
or remove any copyright, trade secret, patent, proprietary or
other legal notice contained on or in the Target Product.
Marketer will include or create on or in all copies of the
Target Product the exact form of any such notices.
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(iv) Injunctive Relief. Marketer acknowledges and agrees that the
Target Product is the valuable property and trade secret of
Developer, that any violation by Marketer may cause Developer
irreparable injury for which it would have no adequate remedy
at law and that, in addition to any other remedies that
Developer may have, it will be entitled to seek preliminary
and other injunctive relief against any such violation. This
Section 4(b)(iv) will not limit either party's right to seek
injunctive relief for any other violation of this Agreement,
including a breach of Section 5.
(v) Investigation. During normal business hours and with
reasonable notice to Marketer, Developer may conduct an
investigation, either directly or through a designated
representative and at Developer's expense, to determine
Marketer's compliance with the terms and conditions of this
Section 4. Marketer will allow Developer (or such designated
representative) to have access to the Marketer Sites and any
Trade Show Site or Prospect Site and any records (in whatever
form kept by or on behalf of Marketer) relating to the Target
Product and Marketer's use thereof. Marketer will cooperate
with, and will reasonably assist, Developer in any such
investigation. Any such investigation will be conducted in a
manner that is designed not to disrupt Marketer's business and
will be restricted in scope, manner and duration to that
reasonably necessary to achieve its intended purpose.
(c) Warranties.
(i) Authority. Each party warrants that it has the power and
authority to enter into, and to perform its obligations under,
this Agreement.
(ii) Ownership of the Target Product. Developer warrants that (A)
it is, and will continue to be during the term of this
Agreement, the owner of the Target Product, free and clear
from any liens, encumbrances, security interests, litigation
or claims, , including any and all claims under patent and
copyright laws, and (B) it has full right to provide the
Target Product to Marketer for the uses contemplated hereby.
(iii) Performance of the Target Product. Developer warrants that the
Target Product is capable of performing on the Bluestreak
Platform substantially in accordance with its written
functional specifications, as set forth in documents provided
by Developer from time to time.
(iv) Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
SECTION 4(c), NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER,
INCLUDING EITHER PARTY'S EFFORTS OR SUCCESS IN IMPLEMENTING
THE MARKETING PLAN OR THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE, OF ANY INFORMATION
TECHNOLOGY SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS
PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY
SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS WILL BE
UNINTERRUPTED OR ERROR-FREE.
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5. Other Confidentiality Obligations. In addition to the terms and conditions
of Section 4(b), the parties will comply with the confidentiality
obligations set forth in this Section 5.
(a) Scope of Obligation. Except as otherwise expressly provided in this
Agreement, Developer and Marketer each agrees that (i) all
information communicated to it by the other and identified as
confidential, whether before or after the date hereof, (ii) all
information identified as confidential to which it has access in
connection with this Agreement, whether before or after the date
hereof, and (iii) this Agreement and the parties' rights and
obligations hereunder, will be and will be deemed to have been
received in confidence and will be used only for purposes of this
Agreement, and each of Developer and Marketer agrees to use the same
means as it uses to protect its own confidential information, but in
no event less than reasonable means, to prevent the disclosure and
to protect the confidentiality thereof. No such information will be
disclosed by the recipient party without the prior written consent
of the other party; provided, however, that each party may disclose
this Agreement and the other party's confidential information to
those of the recipient party's full time employees who have a need
to have access to such information in connection with their
employment by the recipient party, so long as the recipient party
advises each such employee of the confidentiality obligations set
forth in this Section 5. In any event, compliance by each such
employee with the confidentiality obligations set forth in this
Section 5 will remain the responsibility of the party employing such
persons.
(b) Exceptions. The foregoing will not prevent either party from
disclosing information that belongs to such party or (i) is already
known by the recipient party without an obligation of
confidentiality other than under this Agreement, (ii) is publicly
known or becomes publicly known through no unauthorized act of the
recipient party, (iii) is rightfully received from a third party,
(iv) is independently developed without use of the other party's
confidential information or (v) is disclosed without similar
restrictions to a third party by the party owning the confidential
information. If confidential information is required to be disclosed
pursuant to a requirement of a governmental authority, such
confidential information may be disclosed pursuant to such
requirement so long as the party required to disclose the
confidential information, to the extent possible, provides the other
party with timely prior notice of such requirement and coordinates
with such other party in an effort to limit the nature and scope of
such required disclosure. If confidential information is required to
be disclosed in connection with the conduct of any mediation or
arbitration proceeding carried out pursuant to Section 7, such
confidential information may be disclosed pursuant to and in
accordance with the approval and at the direction of the mediator or
arbitrator, as the case may be, conducting such proceeding. Upon
written request of the disclosing party at the expiration or
termination of this Agreement for any reason, all documented
confidential information (and all copies thereof) of the disclosing
party will be returned to the disclosing party or will be destroyed,
with written certification thereof being given to the disclosing
party. The provisions of this Section 5 will survive the expiration
or termination of this Agreement for any reason.
6. Intellectual Property Rights.
(a) Ownership. Each party will retain all rights in any software, ideas,
concepts, know-how, development tools, techniques or any other
proprietary material or information that it owned or developed prior
to the Effective Date, or acquired or developed after the Effective
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Date without reference to or use of the intellectual property of the
other, regardless of whether any such item is embodied in any
materials provided to the other hereunder. As between Developer and
Marketer, Developer will be considered the owner of (i) the Target
Product, (ii) all promotional and advertising materials in written,
electronic or any other form provided by Developer or prepared by
either or both parties (but excluding any embodied information or
technology of Marketer covered by the first sentence of this Section
6(a)) for use in conducting the marketing activities contemplated by
this Agreement (the "Target Materials"), and (iii) all copyright,
trademark, trade secret, patent, moral and other intellectual
property rights contained or evidenced in the Target Product or the
Target Materials. All copies of the Target Product and the Target
Materials will remain the property of Developer. Notwithstanding
anything to the contrary in this Agreement, (i) each party will
retain all right, title and interest in and to all software
development tools, know-how, methodologies, processes, technologies
or algorithms used by such party in performing its obligations under
this Agreement which are based on trade secrets or proprietary
information of such party or are otherwise owned or licensed by such
party, and (ii) subject to the confidentiality obligations set forth
in Section 5, each party will be free to use the ideas, concepts,
methodologies, processes and know-how which are developed or created
by it in the course of performing its obligations under this
Agreement and may be retained by such party's employees in
intangible form. No licenses will be deemed to have been granted by
either party to any of its patents, trade secrets, trademarks or
copyrights, except as otherwise expressly provided in this
Agreement. Nothing in this Agreement will require Developer or
Marketer to violate the proprietary rights of any third party in any
software or otherwise. The provisions of this Section 6(a) will
survive the expiration or termination of this Agreement for any
reason.
(b) Infringement Indemnity.
(i) General. Developer agrees to defend and hold Marketer harmless
from and against any third party action to the extent that
such action is based upon a claim that the Target Product or
confidential information provided by the Developer, or any
part thereof infringes or is likely to infringe upon a
copyright patent, trademark, trade secret, intellectual
property or proprietary rights of a third party or constitute
an unlawful disclosure, use or misappropriation thereof. The
indemnitor will bear the expense of such defense and pay any
damages and attorneys' fees that are attributable to such
claim finally awarded by a court of competent jurisdiction.
(ii) Alternative Remedy. If software or confidential information
becomes the subject of a claim under this Section 6(b), or in
the indemnitor's opinion is likely to become the subject of
such a claim, then, in addition to defending the claim and
paying any damages and attorneys' fees as required above in
this Section 6(b), the indemnitor may, at its option and in
its sole discretion, (A) replace or modify the software or
confidential information to make it noninfringing or cure any
claimed misuse of another's trade secret or (B) procure for
the indemnitee the right to continue using the software or
confidential information pursuant to this Agreement. Any costs
associated with implementing either of the above alternatives
will be borne by the indemnitor but will be subject to Section
9. If neither option is pursued by, or (if pursued) available
to, the indemnitor, (1) the indemnitee will return such
software or confidential information to the indemnitor and (2)
if requested by the indemnitee in good faith, the parties will
negotiate, pursuant to Section 8 but subject to Section 9, to
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reach a written agreement on what, if any, monetary damages
(in addition to the indemnitor's obligation to defend the
claim and pay any damages and attorneys' fees as required
above in this Section 6(b)) are reasonably owed by the
indemnitor to the indemnitee as a result of the indemnitee no
longer having use of such software or confidential
information. The payment of any such monetary damages will be
the indemnitee's sole and exclusive remedy for the inability
of the indemnitor to implement either of the above
alternatives.
(iii) Procedures. The indemnification obligations set forth in this
Section 6(b) will not apply unless the party claiming
indemnification: (A) notifies the other promptly in writing of
any matters in respect of which the indemnity may apply and of
which the notifying party has knowledge in order to allow the
indemnitor the opportunity to investigate and defend the
matter; provided, however, that the failure to so notify will
only relieve the indemnitor of its obligations under this
Section 6(b) if and to the extent that the indemnitor is
prejudiced thereby; and (B) gives the other party full
opportunity to control the response thereto and the defense
thereof, including any agreement relating to the settlement
thereof; provided, however, that the indemnitee will have the
right to participate in any legal proceeding to contest and
defend a claim for indemnification involving a third party and
to be represented by legal counsel of its choosing, all at the
indemnitee's cost and expense. However, if the indemnitor
fails to promptly assume the defense of the claim, the party
entitled to indemnification may assume the defense at the
indemnitor's cost and expense. The indemnitor will not be
responsible for any settlement or compromise made without its
consent, unless the indemnitee has tendered notice and the
indemnitor has then refused to assume and defend the claim and
it is later determined that the indemnitor was liable to
assume and defend the claim. The indemnitee agrees to
cooperate in good faith with the indemnitor at the request and
expense of the indemnitor.
7. Mediation; Arbitration. Any dispute, controversy or claim arising under,
out of, in connection with or in relation to this Agreement, or the
breach, termination, validity or enforceability of any provision hereof (a
"Dispute"), if not resolved informally through negotiation between the
parties, will be submitted to non-binding mediation. The parties will
mutually determine who the mediator will be from a list of mediators
obtained from the American Arbitration Association office located in the
city determined as set forth below in this Section 7 (the "AAA"). If the
parties are unable to agree on the mediator, the mediator will be selected
by the AAA. If any Dispute is not resolved through mediation, it will be
resolved by final and binding arbitration conducted in accordance with and
subject to the Commercial Arbitration Rules of the AAA then applicable.
One arbitrator will be selected by the parties' mutual agreement or,
failing that, by the AAA, and the arbitrator will allow such discovery as
is appropriate, consistent with the purposes of arbitration in
accomplishing fair, speedy and cost effective resolution of disputes.
Judgment upon the award rendered in any such arbitration may be entered in
any court having jurisdiction thereof. Any negotiation, mediation or
arbitration conducted pursuant to this Section 7 will take place in
Dallas, Texas. Other than those matters involving injunctive relief or any
action necessary to enforce the award of the arbitrator, the parties agree
that the provisions of this Section 7 are a complete defense to any suit,
action or other proceeding instituted in any court or before any
administrative tribunal with respect to any Dispute or the performance of
any marketing activities by either party. Nothing in this Section 7
prevents the parties from exercising their right to terminate this
Agreement in accordance with Section 8.
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8. Termination.
(a) Termination for Default. If either party materially defaults in the
performance of any of its obligations under this Agreement, which
default is not cured within 30 days after notice is given to the
defaulting party specifying the default or, with respect to those
non-monetary defaults that cannot reasonably be cured within 30
days, should the defaulting party fail to proceed within 30 days to
commence curing the default and thereafter to proceed with all
reasonable diligence to substantially cure the default, the party
not in default may, by giving written notice thereof to the
defaulting party, terminate this Agreement as of a date specified in
such notice of termination.
(b) Termination for Bankruptcy and Related Events Subject to Xxxxx 00,
Xxxxxx Xxxxxx Code, if either party becomes or is declared insolvent
or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of all
or substantially all of its creditors or enters into an agreement
for the composition, extension or readjustment of all or
substantially all of its obligations, then the other party may, by
giving written notice thereof to such party, terminate this
Agreement as of a date specified in such notice of termination.
(c) Effect of Expiration or Termination. Upon expiration or termination
of this Agreement for any reason, (i) the parties will cease to
perform the marketing activities contemplated hereby, including the
demonstration of the Target Product and the use in any manner of the
Target Materials, (ii) the license granted in Section 4(a) will
terminate, (iii) Marketer will promptly return to Developer all
copies of the Target Product in Marketer's possession or control and
completely erase the Target Product and all elements thereof from
any Marketer-used computer system, (iv) Marketer will promptly
return to Developer all copies of, and excerpts from, the Target
Materials in Marketer's possession or control and terminate usage of
any form of electronic transmission or display of the Target
Materials and (v) each party will pay to the other any sums due
under this Agreement that remain unpaid. Expiration or termination
of this Agreement will not release either party from any liabilities
or obligations set forth in this Agreement which (A) the parties
have expressly agreed will survive any such expiration or
termination or (B) remain to be performed or by their nature would
be intended to be applicable following any such expiration or
termination.
9. Liability.
(a) General Limitation. The liability of each party to the other for all
damages arising out of or related to this Agreement, regardless of
the form of action that imposes liability, whether in contract,
equity, negligence, intended conduct, tort or otherwise, will be
limited to and will not exceed, in the aggregate for all claims,
actions and causes of action of every kind and nature, the sum of
the net revenues generated in the preceding twelve (12) months
covered by this Agreement.
(b) Limitation on Other Damages. In no event will the measure of damages
payable by either party include, nor will either party be liable
for, any amounts for loss of income, profit or savings or indirect,
incidental, consequential, exemplary, punitive or special damages of
any party, including third parties, even if such party has been
advised of the possibility of such damages in advance, and all such
damages are expressly disclaimed.
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(c) Exceptions to Limitations. The limitations set forth in Sections
9(a) and 9(b) will not apply to the liability of either party to the
extent such liability results from that party's nonperformance of
its payment obligations to the other expressly set forth in this
Agreement.
(d) Contractual Statute of Limitations. No claim, demand for mediation
or arbitration or cause of action which arose out of an event or
events which occurred more than two years prior to the filing of a
demand for mediation or arbitration or suit alleging a claim or
cause of action may be asserted by either party against the other.
(e) Acknowledgement. The parties expressly acknowledge that the
limitations and exclusions set forth in this Section 9 have been the
subject of active and complete negotiation between the parties and
represent the parties' agreement taking into account each party's
level of risk associated with the performance or nonperformance of
its obligations under this Agreement and the payments and other
benefits to be derived by each party hereunder. The provisions of
this Section 9 will survive the expiration or termination of this
License for any reason.
10. Excused Performance. Neither party will be deemed to be in default
hereunder, or will be liable to the other, for failure to perform any of
its non-monetary obligations under this Agreement for any period and to
the extent that such failure results from any event or circumstance beyond
that party's reasonable control (each, a "force majeure event"), including
acts or omissions of the other party or third parties, natural disasters,
riots, war, civil disorder, court orders, acts or regulations of
governmental bodies, labor disputes or failures or fluctuations in
electrical power, heat, light, air conditioning or telecommunications
equipment or lines, or other equipment failure, and which it could not
have prevented by reasonable precautions or could not have remedied by the
exercise of reasonable efforts, provided that the exercise of such
reasonable precautions or reasonable efforts will not require the
incurrence of any additional cost or expense.
11. Notices. All notices under this Agreement will be in writing and will be
deemed to have been duly given when (a) delivered by hand, (b) one
business day after being given to an express courier with a reliable
tracking system, (c) when sent by confirmed facsimile or electronic mail
with a copy sent by another means specified in this Section 11, or (d) six
business days after the day of mailing, when mailed by United States mail,
registered or certified mail, return receipt requested, postage prepaid,
to the parties at the addresses set forth on the signature page. Either
party may change its address or designee for notification purposes by
giving notice to the other of the new address or designee and the date
upon which such change will become effective.
12. Other. Where agreement, approval, acceptance or consent of either party is
required by this Agreement, such action will not be unreasonably withheld
or delayed. Nothing in this Agreement may be relied upon or will benefit
any party other than Developer and Marketer. Neither party will act in any
manner which would give rise to any claims for broker's commission,
finder's fee or other like payment to any third party with respect to the
opportunities within the scope of this Agreement. This Agreement (a) will
be governed by the substantive laws of the State of New York (without
giving effect to any choice-of-law rules that may require the application
of the laws of another jurisdiction), (b) may not be assigned by either
party without the prior written consent of the other, (c) may not be
changed or modified orally or through a course of dealing, but only by a
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written amendment or revision signed by the parties and (d) together with
the schedules attached hereto (each of which is incorporated into this
Agreement by this reference), constitutes the entire agreement of the
parties with respect to the subject matter hereof, superseding any
previous or contemporaneous representations, understandings or agreements
with respect thereto. Except as otherwise expressly provided in Section
3(b) of Schedule 1(b), neither party will make any media release or other
public announcement relating or referring to this Agreement without the
other's prior written consent.
In Witness Whereof, the parties have duly executed and delivered this Agreement
by their duly authorized representatives as of the date first set forth above.
Bluestreak Technology, Inc. Zone4Play, Inc.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------------- --------------------------------
Title: President Title: CEO
-------------------------------- -----------------------------
Address: 0000 Xxxxx Xxxxxx, Xxxxx 0000 Address: 0X Xxxxxxxxx Xx
------------------------------ ---------------
Xxxxxx, Xxxxx, 00000, XXX Xxx Xxxx 00000, Xxxxxx
Date: Date:
--------------------------------- ------------------------------
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Schedule 1(a)
-------------
Functional Description of Target Product
Target Product for the purpose of this agreement shall include and consist of:
Casino Game Channel, Fixed Odds Channel, Multi-Player Bingo, Multi-Player Poker,
Multi-Player Blackjack, and Skill Games.
1. Skill Games Package
GAMES
Zone4Play's Skill Channel portfolio includes 5 arcade games - Bejeweled,
Bespelled, Skill Jam, Pool Jam, and Big Money; 1 perennially favorite card
game - Solitaire; and the adrenaline-pumping Running Back Fantasy sport
game.
FEATURES
No online game features at this point
2. Slingo
GAMES
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[LOGO] [LOGO] [LOGO] [LOGO] [LOGO]
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Slingo Millennium 5-Card Slingo Bumper Crazy 7's Tri-Dem Perks
Millennium
America's favorite game A family favorite that Line up colors Crazy hours of fun and The hip new solitaire for
for friends, family and is a high-bred vertically and challenge trying to groovy people who enjoy a
everyone who enjoys the combination of classic horizontally to score get the Crazy 7's challenge and the sweet
entertainment of spin, Poker and Slots. A high points when Bonus. sound of the 70's with
match must play players bump, bang and This is Video Poker DJ Coolaz Ice
and collect points that promises maneuver cars into the at its
hours of enjoyment Bumper grid. absolute best!
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SLINGO KIDS GAMES
Games especially designed for kids in play action and graphics appeal.
Learn why these games are so appealing to the younger audience.
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---------------------------------------------------------------------------------------------------------------------------------
[LOGO] [LOGO] [LOGO] [LOGO] [LOGO]
---------------------------------------------------------------------------------------------------------------------------------
Kids Bumper
Hours of fun for kids Circus Stars Match'ums 4 Kids Slingo 4 Kids Xxxx Blocks
with the kid friendly and The more vertical and Fun & educational as The classic spin, match Mind bending and
easier version of horizontal matches the kids hone their skills & collect points Slingo colorful puzzle style
bumping, banging & more time is awarded of memory to recall game is enhanced with game where clearing
maneuvering cars into the for game play. Kids and clear the kid appealing graphics, the board of the
Bumper grid. love the challenge & Match'ums board of sounds & additional colored blocks
the fun sounds of colors and symbols for fun features maximizes the score
victory points.
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3. Play-for-Fun Casino games Package
GAMES
Basic package:
6 games
2 additional games every quarter
--------------------------------------------------------------------------------
* Video Poker * Roulette
* Xxxxx Xxxx * Slots
* Caribbean Poker Lucky 7
* Bingo Old west
* Battle royal 5 lines
* Baccarat Gold rush
* Sic-Bo Treasure Island
--------------------------------------------------------------------------------
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Multi-Player Texas Hold'em Poker
Features
o No online game features at this point
o Simplicity/low learning curve - without sacrificing excitement!
o Full customization capabilities
Multi-Player Bingo
Features
o No online features at this point
o Simplicity/low learning curve - without sacrificing excitement!
o Full customization capabilities
o Automatic Card marking or "daubing"
Multi-Player Blackjack
Features
o No online features at this point
o Simplicity/low learning curve - without sacrificing excitement!
o Full customization capabilities
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Schedule 1(b)
-------------
Each Party's Responsibilities
1. Responsibilities of Marketer. Marketer will, at its own cost and expense,
be responsible for the following:
Marketer will use commercially reasonable efforts consistent with its own
reasonable business judgment and its knowledge of the Cable Television
Multiple System Operator industry to market the Target Product to the
Market.
Marketer will maintain complete and accurate records relating to its
marketing contacts under this Agreement and will track the results of each
such contact, as well as such other information as the parties mutually
agree, in a written prospective customer log.
Marketer agrees to provide periodic, informal reports by telephone or
electronic mail disclosing (i) its progress under the Marketing Plan (as
defined in Section 3(a) of this Schedule 1(b)), (ii) any errors or
difficulties discovered by it in the Target Product and (iii) the
characteristic conditions and symptoms of such errors and difficulties so
that Developer may recreate them itself. In addition, Marketer agrees to
notify Developer by telephone promptly after the discovery by it of any
material error or bug in the Target Product.
Marketer will coordinate and cooperate with Developer to arrange, where
beneficial and if practicable, joint marketing visits to the Marketer
Sites, any Prospect Sites and any Trade Show Sites.
Marketer will make its sales personnel available on a reasonable basis to
receive training on, and familiarization with, the Target Product.
2. Responsibilities of Developer. Developer will, at its own cost and
expense, be responsible for the following:
Developer will furnish Marketer with ten copies of the Target Product for
installation and use in compliance with the license granted in Section
4(a) of the Agreement.
Within 30 days of the Effective Date and at least quarterly thereafter
upon Marketer's reasonable request, Developer will provide training on,
and familiarization with, the Target Product to Marketer personnel and
Developer will make its sales representatives available on a reasonable
basis for joint marketing visits to the Marketer Sites, any Prospect Sites
and any Trade Show Sites.
Developer will furnish Marketer with reasonable quantities of those Target
Materials prepared by Developer.
Upon Marketer's reasonable request, Developer will assist Marketer in the
development of proposals to prospective customers.
Developer will promptly and in good faith negotiate to achieve a Customer
License with any prospective customer identified by Marketer as interested
in licensing the Target Product.
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Developer will maintain the core software technology of the Target Product
and will provide such modifications and enhancements thereto as Developer
deems appropriate for marketing by Marketer to the Market.
3. Joint Responsibilities. Developer and Marketer will be jointly responsible
for the following:
(a) Marketing Plan. Within 30 days of the Effective Date, Developer and
Marketer will establish and implement a Marketing Plan with
associated time lines to market the Target Product to the Market
(the "Marketing Plan"). Consistent with each party's rights and
responsibilities as described in this Agreement, the Marketing Plan:
(i) will identify how the Target Product is to be marketed; (ii)
will identify possible business opportunities for applications of
the Target Product; (iii) will set forth a marketing and sales
strategy for the development of such opportunities; (iv) will
identify trade shows and exhibits that will enhance the ability of
Marketer market the Target Product; and (v) will address such other
matters as the parties mutually agree. Each party will perform its
respective obligations under this Agreement in accordance with the
Marketing Plan, as it may be modified by the parties from time to
time in writing.
(b) Target Materials. The parties will determine the nature and scope of
the Target Materials to be used by Marketer hereunder. The Target
Materials, in describing the relationship between the parties, will
not use terms such as "partnership", "joint venture", "affiliate",
"agent", "representative" or similar terms that suggest either (i) a
formal business organization or structure of any kind has been
created by the parties or (ii) that one party has the power or
authority to bind or commit the other. Instead, the parties will use
terms such as "alliance" or "marketing relationship". Each item of
Target Materials must be approved in writing by both parties prior
to its initial use. In addition, the oral, visual or written use of
one party's name by the other in connection with the marketing
activities contemplated by this Agreement, whether in the Target
Materials or otherwise, will be subject, in each case, to the prior
written approval of such other party, unless otherwise expressly
provided in the Marketing Plan. Notwithstanding Section 5 but
subject to the Marketing Plan, once the approvals required by this
Section 3(b) are obtained, Marketer (A) may reference the marketing
relationship contemplated by this Agreement to its prospective
customers, (B) may provide verbal and visual representations of the
Target Product, including its features, functions, user interfaces
and necessary hardware requirements, to prospective customers, (C)
may include written descriptions of the Target Product, including
its features, functions, user interfaces and necessary hardware
requirements, in proposals to prospective customers so long as
extensive amounts of detail about the Target Product are not
included and a confidentiality agreement containing terms and
conditions no less restrictive than those set forth in this
Agreement is executed by the prospective customer prior to
disclosure and (D) may demonstrate the Target Product to prospective
customers in compliance with the license granted in Section 4(a) of
the Agreement.
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