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EXHIBIT 10.44
ALL VIDEO XXXXXXX.XXX
INTERNET STREAMING SERVICE AGREEMENT
THIS SERVICE AGREEMENT (Agreement) is made effective as of the Submission Date
Indicated in the attached Internet Service Order Form accepted by All Video
Network, by and between All Video Network, Inc (AVN) and the customer identified
below (Customer) and where referred to collectively (Parties).
High Speed Net Solutions
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
ALL VIDEO NETWORK
000 X.X. Xxxxxxx 0
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
1. INTERNET STREAMING AND ASSOCIATED SERVICES (ADDENDUM A).
Subject to the terms and conditions of this Agreement, during the term
of this Agreement, AVN, will provide to Customer the services described in the
Internet Service Order Form(s) ("IS Order Form") accepted. All IS Order Forms
accepted by AVN are incorporated herein by this reference, each as of the
Submission Date indicated in such form. AVN will also provide the services
indicated in Addendum A "AVN Video E-Mail Integration Services"
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IB Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Streaming Services,
other than Deposits, indicated in the initial IS Order Form, shall commence on
date AVN begins to provide Internet Streaming Services, unless Customer is
unable to use the Internet Services by the Operational Date due to the fault of
AVN, then billing will not begin until the date AVN has remedied such fault and
is operational. Any Deposits will be due upon receipt of a Customer signed IS
Order Form. In the event that Customer orders additional Internet Services,
billing for such services shall commence on the date AVN first provides such
additional Internet Services to Customer or as agreed to by Customer and AVN.
2.3 Billing and Payment Terms. Customer will be billed Monthly in
advance, and payment of such fees will be due within thirty (30) days of the
date of each AVN invoice. All payments will be made in U.S. dollars. Late
payments hereunder will accrue interest at a rate of one and one-half percent
(1-1/2%) per month. If Customer's check is returned to AVN unpaid, Customer
shall be immediately in default and subject to a returned check charge of $25.00
from AVN. Customer agrees to AVN's reasonable expenses, including attorneys' and
collection agency fees, incurred in enforcing its rights under this Agreement.
If in its judgment AVN determines that Customer is not creditworthy or is
otherwise not financially secure, AVN may, upon written notice to Customer,
modify the payment terms to require full payment before the provision of
Internet Bandwidth Services or other assurances and deposits necessary to secure
Customer's payment obligations hereunder.
2.4 Taxes. All payments required by this Agreement are exclusive of all
national, state, municipal, or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding taxes and
obligations and other levies now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, except for taxes based on
AVN's net income.
3. CUSTOMER'S OBLIGATIONS.
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and regulations.
Customer acknowledges that AVN exercises no control whatsoever over the content
of the information passing through its sites and equipment and facilities used
by AVN, and that it is the sole responsibility of Customer to ensure that the
information it transmits and receives complies with all applicable laws and
regulations.
3.2 Customer's Costs. Customer agrees that it will be solely
responsible, and at AVN's request will reimburse AVN, for all costs and expenses
(outside those included as part of the IS order form and except as otherwise
expressly provided herein) it incurs on behalf of the Customer in connection
with this agreement.
3.3 No Competitive Services. Other than specified in the IS order form,
Customer may not at any time permit any Internet Bandwidth Services to be
utilized for the provision of any streaming services that compete with any AVN
services, that AVN provides at that time, without AVN's prior written consent.
3.4 Compliance. High Speed Net Solutions shall use AVN resources in a
manner that is clearly consistent with the purpose of the products and services
offered. High Speed Net Solutions shall comply with applicable laws. High Speed
Net Solutions incurs the responsibility to determine what restrictions apply and
to review the policies and procedures that will be updated continually in
consolation with High Speed Net Solutions. High Speed Net Solutions is
responsible to use the resources with sensitivity to the rights of others. Any
conduct by High Speed Net Solutions that in AVN's sole discretion restricts or
inhibits any other user, whether a High Speed Net Solution's user of AVN systems
or a user of any other system, from using and enjoying any of AVN's services is
strictly prohibited. Any conduct by AVN that in High Speed Net Solution's sole
discretion restricts or inhibits any other user, whether a AVN user of High
Speed Net Solution's systems or a user of any other system, from using and
enjoying any of High Speed Net Solution services is strictly prohibited -- This
includes, but is not limited to, the posting or transmitting on or through any
of AVN's services, any information that is, in AVN's sole discretion, unlawful,
obscene, threatening, abusive, libelous, or harmful, or encourages conduct that
would constitute a criminal offense, give rise to civil liability, or otherwise
violate any local, state, national, or international law.
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("Confidential Information").
Confidential information will include, but not be limited to, each party's
proprietary software and customer information. Each party agrees that it will
not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third
party, any of the other party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such information. To
the extent a party is required by applicable law, regulation, or by government
agency or court order, subpoena, or investigative demand, to disclose the
existence or terms of this
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Agreement, or the other party's Confidential Information, such party shall use
its reasonable efforts to minimize such disclosure and obtain an assurance that
the recipient shall accord confidential treatment to such Confidential
Information, and shall notify the other party contemporaneously of such
disclosure. AVN at its discretion may terminate this Agreement for cause upon
ten days notice and without penalty in the event of any breach by Customer of
this Section.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer's Business. Customer represents and warrants that
Customer's services, products, materials, data, information and Customer
Equipment used by Customer in connection with this Agreement as well as
Customer's and its permitted customers' and users' use of the Internet Data
Center Services (collectively, "Customer's Business") does not as of the
Operational Date, and will not during the term of this Agreement operate in any
manner that would violate any applicable law or regulation.
(b) Breach of Warranties of AVN. In the event of any breach of
any of the foregoing warranties, in addition to any other remedies available at
law or in equity, AVN will have the right to suspend in 10 days upon written
notification any related Internet Streaming Services if deemed reasonably
necessary by AVN to prevent any harm to AVN and its business.
5.2 Warranties and Disclaimers by AVN.
5.2(a) AVN warrants that it has the capability to provide the
Internet Streaming services for both distribution and encoding of audio/video
content as detailed in the Internet Services Order form attached herein.
5.2(b) Service Level Warranty. In the event Customer
experiences any of the following and AVN determines in its and Customer's
reasonable judgment that such inability was caused by AVN's failure to provide
Internet Streaming Services and not as a result of any actions or inactions of
Customer or any third parties (including Customer Equipment and third party
equipment), AVN will, upon Customer's request in accordance with paragraph (iii)
below, credit Customer's account as described below:
(i) Inability to Access the Internet (Downtime) or Provide
services. If Customer is unable to transmit and receive information from AVN's
Data Centers (i.e., AVN's LAN and WAN) to other portions of the Internet because
AVN failed to provide the Internet Streaming Services for more than fifteen (15)
consecutive minutes, AVN will credit Customer's account the pro-rata
connectivity charges (i.e., all streaming related charges) for one (1) day of
service. For purposes of the foregoing, "unable to transmit and receive" shall
mean sustained packet loss in excess of 50% based on AVN's measurements. If AVN
fails to provide Internet Streaming Services for more than fifteen (15)
consecutive minutes for more than ten consecutive days, then AVN will be deemed
to be in breach of this contract, and then High Speed Net Solutions will have
the right to terminate this agreement.
(ii) Customer Must Request Credit: To receive any of the
credits described in this section 5.2(a), Customer must notify AVN within
twenty-one (21) business days from the time Customer becomes eligible to receive
a credit. Failure to comply with this requirement will forfeit Customer's right
to receive a credit.
(iii) Remedies Shall Not Be Cumulative; Maximum Credit: In the
event that Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be entitled
to receive only the maximum single credit available for such event. A credit
shall be applied only to the month in which there was the incident that resulted
in the credit. Customer shall not be eligible to receive any credits for periods
in which Customer received any Internet Bandwidth Services free of charge. THIS
WARRANTY DOES NOT APPLY TO ANY INTERNET STREAMING SERVICES THAT EXPRESSLY
EXCLUDE THIS WARRANTY. SECTION 5.2(a) STATES CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR ANY FAILURE BY AVN TO PROVIDE INTERNET BANDWIDTH SERVICES.
5.2(c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET
OUT IN SUBSECTION (a) ABOVE, THE INTERNET STREAMING SERVICES ARE PROVIDED ON AN
"AS IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET BANDWIDTH SERVICES IS AT ITS
OWN RISK. AVN DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
AVN DOES NOT WARRANT THAT THE INTERNET BANDWIDTH SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE.
5.2(d) Breach of Warranties of High Speed Net Solutions. In
the event of any breach of any of the foregoing warranties, in addition to any
other remedies available at law or in equity, AVN will have the right to suspend
in 10 days upon written notification any related Internet Streaming Services if
deemed reasonably necessary by AVN to prevent any harm to AVN and its business.
6. Investment. In the event that the Customer offers and AVN accepts a financial
investment in AVN that exceeds the amount of $1,000,000, both parties agree that
a subsequent agreement will nullify and supercede the terms and conditions
embodied in this Agreement.
7. Omni Suite. AVN agrees to enter into a product marketing relationship (the
terms and conditions which will be embodied in a separate Marketing Services
Agreement) with Customer such that Customer may remarket AVN's Omni Suite video
software product to Customer's own client base. Customer agrees that all of its
clients that develop products utilizing the Omni Suite must also send such
products over AVN's Internet streaming network, at a cost rate to be agreed to
by both parties.
8. MISCELLANEOUS PROVISIONS.
8.1 Force Majeure. Neither party will be liable for any failure or delay in its
performance under this Agreement due to any cause beyond its reasonable control,
including act of war, acts of God, earthquake, flood, embargo, riot, sabotage,
labor
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shortage or dispute, governmental act or failure of the Internet, provided that
the delayed party: (a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to correct promptly such failure or
delay in performance.
8.2 Marketing. Customer agrees that upon Customer's prior written
consent, AVN may refer to Customer by trade name and trademark, and may briefly
describe Customer's Business, in AVN's marketing materials and web site, also
stream customer content in order to promote customers own web site as well as
AVN's.
8.3 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated item
or information to anyone outside the U.S. in connection with this Agreement
without first complying with all export control laws and regulations which may
be imposed by the U.S. Government and any country or organization of nations
within whose jurisdiction Customer operates or does business.
8.4 Non-Solicitation. During the period beginning on the Operational
Date and ending on the first anniversary of the termination or expiration of
this Agreement in accordance with its terms, Neither party or its affiliates
will, directly or indirectly, solicit or attempt to solicit for employment any
persons employed by AVN during such period.
8.5 Governing Law; Dispute Resolution, Severability; Waiver. This
Agreement is made under and will be governed by and construed in accordance with
the laws of the State of Florida (except that body of law controlling conflicts
of law) and specifically excluding from application to this Agreement that law
known as the United Nations Convention on the International Sale of Goods. Any
dispute relating to the terms, interpretation or performance of this Agreement
(other than claims for preliminary injunctive relief or other pre-judgment
remedies) will be resolved at the request of either party through binding
arbitration. Arbitration will be conducted in Palm Beach County, Florida, under
the rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request that JAMS appoint a single arbitrator
possessing knowledge of All services agreements; however the arbitration will
proceed even if such a person is unavailable. In the event any provision of this
Agreement is held by a tribunal of competent jurisdiction to be contrary to the
law, the remaining provisions of this Agreement will remain in full force and
effect. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
8.6 Assignment; Notices. Neither party shall assign its rights or
delegate its duties under this Agreement either in whole or in part without the
prior written consent of either party, except that either party may assign this
Agreement in whole or part as part of a corporate reorganization, consolidation,
merger, or sale of substantially all of its assets. Any attempted assignment or
delegation without such consent will be void. This Agreement will bind and inure
to the benefit of each party's successors and permitted assigns. Any notice or
communication required or permitted to be given hereunder may be delivered by
hand, deposited with an overnight courier, sent by confirmed facsimile, or
mailed by registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party indicated on the
signature page hereof, or at such other address as may hereafter be furnished in
writing by either party hereto to the other. Such notice will be deemed to have
been given as of the date it is delivered, mailed or sent, whichever is earlier.
8.7 Relationship of Parties. AVN and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between AVN and
Customer. Neither AVN nor Customer will have the power to bind the other or
incur obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided herein.
8.8 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
8.9 Survivorship. This agreement will remain in force for its term
regardless of a change in control with either party.
8.10 Hold Harmless. Customer will indemnify and hold AVN, its
affiliates and their respective officers, directors, shareholders, agents and
employees, harmless from any loss, expense (including reasonable attorney fees),
cost, liability, damage or claim resulting from any claim or litigation, which
arises out of (i) Customer's negligence, gross negligence or willful misconduct
in the performance of its obligations under this agreement; or (ii) any breach
of this agreement by Customer, its employees, agents, representatives, or
invitees; or (iii) the failure of the final Distributed Product to comply with
all applicable federal, state and local laws, ordinances and regulations
pertaining to the sale, distribution, advertising and promotion of content over
the Internet; or (iv) for alleged or actual infringement, misappropriation, or
unauthorized use of any copyright, trade secret, or any other proprietary right
arising out of any materials provided to AVN by Customer.
AVN will indemnify and hold Customer, its affiliates and their
respective officers, directors, shareholders, agents and employees, harmless
from any loss, expense (including reasonable attorney fees), cost, liability,
damage or claim resulting from any claim or litigation, which arises out of (i)
AVN's negligence, gross negligence or willful misconduct in the performance of
its obligations under this agreement; or (ii) any breach of this agreement by
AVN, its employees, agents, representatives, or invitees; or (iii) the failure
of the final Distributed Product to comply with all applicable federal, state
and local laws, ordinances and regulations pertaining to the sale, distribution,
advertising and promotion of content over the Internet; or (iv) for alleged or
actual infringement, misappropriation, or unauthorized use of any copyright,
trade secret, or any other proprietary right arising out of any materials
provided to Customer by AVN.
Customer's and AVN's authorized representatives have read the foregoing and all
documents incorporated therein and agree and accept such terms effective as of
the date indicated in the IS order form.
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ALL VIDEO NETWORK, INC.
INTERNET SERVICES ORDER FORM
Customer: Contact:
High Speed Net Solutions (HSNS) Xxxxxx Xxxxxxx
000 Xxxxxxxxxxxx Xx. Xxxxx 0000 919-645-2611
Xxxxxxx, Xxxxx Xxxxxxxx 00000
SERVICES BRIEF DESCRIPTION PRICES
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DISTRIBUTION Provide licensing rights and Internet $50,000.00 per month minimum
Distributed Network distribution of HSNS audio/video content bandwidth transfer fee. This amount
Services for audio and with unlimited user access on a continuous provides HSNS with 1 terabyte
video distribution. 24X7 basis, per the terms and conditions set (1000 gigabytes) monthly transfer.
forth in the attached Internet Bandwidth For each month of the contract, the
Services Agreement. excess transfer rate will be at $20.00
per gigabyte up to 500 gigabytes.
Thereafter the excess transfer rate is
$15.00 per gigabyte.
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ENCODING Professional encoding at 8 custom speeds Video over 400 minutes per month
of up to 400 minutes of video per month will be billed at 10.00 per minute.
AVN commits to 24 hour turn around time
from receipt of video to hosting.
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SOFTWARE AllVideo will provide all software to
-Microsoft Windows produce client's audio/video via the
Media internet.
-Microsoft NetShow
compatibility
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By submitting this Internet Services Order Form (IS Order Form) to All Video
Network, Inc. (AllVideo), HSNS hereby places an order for the services described
herein pursuant to the terms and conditions of the attached Internet Streaming
Services Agreement (IBS Agreement) between HSNS and ALLVIDEO. HSNS will provide
ALLVIDEO with an advance one-month fee of $50,000.00 for the hosting and
distribution of their streamed content. This first payment will include the
integration of ALLVIDEO software package with the HSNS e-mail delivery system.
It will also include research and development for HSNS services relating to the
streaming video applications of their e-mail delivery system. ALLVIDEO also will
provide category exclusivity to HSNS. HSNS category exclusivity is defined as
the deployment of all rich media (streaming video, animation, interactive and
transactional components) delivered via an email distribution system. This first
payment is due by September 15, 2000 under the condition that AVN provides the
capacity to deliver 1 terabyte of monthly transfer as described under the
distribution services section of this document. Future monthly payments will
represent the next month's encoding and distribution charges as detailed above.
The term for the services provided herein shall be for a period of two years (24
months) commencing on the operational date set forth for HSNS. (September 15,
2000) HSNS will have the right to discontinued services on 90 days notice for
the first 12 months of the term of the contract. Notice shall be given in
writing 90 days prior to the date that service will be discontinued, as outlined
in the IBS agreement.) HSNS will have the right to discontinue services on 30
days notice for the second 12 months of the term of the contract. Notice shall
be given in writing 30 days prior to the date that service will be discontinued
as outlined in the IBS agreement. ALLVIDEO will provide all software, equipment
and connectivity to deliver its digitized broadcast signal from the ALLVIDEO
high capacity network. This IS order form may be mutually modified by the
parties without effecting the attached ISB agreement.
HSNS: /s/ Xxxxxx Xxx ALLVIDEO: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------
President/CEO 9/18/2000 CEO 9/18/2000
------------------------------------ -------------------------------------
Title Date Title Date
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HIGH SPEED NET SOLUTIONS ALL VIDEO NETWORK, INC.
Signature: /s/ Xxxxxx Xxx Signature: /s/ Xxxxxxx X. Xxxxxx
---------------------- -------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxxx X. Xxxxxx
---------------------- -------------------------
Title: President/CEO Title: CEO
--------------------------- -----------------------------
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ALL VIDEO NETWORK, INC.
INTERNET SERVICES ORDER FORM
ALL MATTERS CONTAINED HEREIN ARE STRICTLY CONFIDENTIAL
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Addendum A
All Video Network Video E-Mail Integration Services
- Automatic bandwidth detection software is implemented to work with
products that are email based allowing the appropriate video steam to
be served based on the bandwidth available to the end user without
requiring end user interaction or selection.
- Customer video player controls for play, pause, stop and mute must be
implemented in a way that allow error free interaction with MS Windows
Media Player when being invoked from html rendered in an html capable
email program. These controls must allow for a URL or "hotlink" to be
associated with them. These custom controls must implement the
following behavior:
- Play must start the video from the beginning.
- Pause will stop the video at the current position.
- Stop will stop the video at the current position and show the
initial advertisement.
- When play is invoked after the stop button has been executed,
the video will start over at the beginning.
- When play is invoked after the pause button has been executed,
the video will start from the position in the video that it
stopped on when pause was selected.
- Mute will mute the audio playback only and will not affect the
video playback in any way.
- A mechanism must be developed that indicates to the end user that the
buffering associated with streaming video media is occurring.
- Reporting
- Total Number of streams served by video and speed
- Total Number of errors by video and speed
- Total Number of timeouts by video and speed
- Total Number of interrupted streams by video and speed
- Total Number of completed streams served by video and speed
- Total Number of streams requested by video and speed
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CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (the "Agreement") is made as of August 17,
2000 by HSNS, Inc, a Florida corporation, with an address at 000 Xxxxxxxxxxxx
Xxxxxx Xxxx, #0000, Xxxxxxx, XX 00000 and AllVideo Network, Inc., a Florida
corporation, with an address at 000 X.X. Xxxxxxx Xxx, Xxxxx Xxxx Xxxxx, XX
00000.
B A C K G R O U N D:
A. The parties are about to engage in negotiations leading to a contract
or other business arrangement between them.
B. In connection with their negotiations and possibly thereafter, each
party will be disclosing certain confidential and proprietary
information to the other party.
C. For purposes of this Agreement, "Recipient" shall refer to either
party to the Agreement upon receipt by either party of Confidential
Information, as defined in Paragraph 1(b) below, of the other party,
and "Disclosing Party" shall refer to either party upon transmittal of
such party's Confidential Information to Recipient.
D. Each party hereto is entering into this Confidentiality Agreement upon
condition that the other party agree to execute, observe and be bound
by the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, as aforesaid, the
parties hereto, intending to be legally bound, hereby agrees as follows:
1. CONFIDENTIALITY.
(a) During the period of negotiations between the parties hereto, and
at all times thereafter, irrespective of the time, manner or cause of the
termination of such negotiations and regardless of whether or not such
negotiations are successful in producing an arrangement between the parties,
Recipient will not disclose or allow to be disclosed, directly or indirectly,
to others, or for any purpose, any Confidential Information of Disclosing Party;
(b) For purposes of this Agreement, "CONFIDENTIAL INFORMATION" shall
mean any and all information disclosed to Recipient or known or gathered by
Recipient as a consequence of or through the negotiations with Disclosing Party
or otherwise, not generally known to the industry in which Disclosing Party is
or may become engaged, about the products, services or methods of doing
business of Disclosing Party, including, but not limited to, information
relating to its trade secrets, technical knowledge and data, processes,
techniques, drawings, flow charts, diagrams and designs, patented and
unpatented inventions, installation and operating manuals.
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broadcasting and quality control procedures, plans, accumulated experience,
design, specifications, market data, customer information, hardware, software,
source and object codes, and other know-how of any kind, marketing techniques
and programs, dates, figures, projections, costs, methods of operation,
estimates, customer lists, customer histories, personnel histories, financial
statements, accounting procedures and selling techniques. Notwithstanding the
foregoing, Confidential Information shall not include information, if any, that
(a) becomes generally available to the public in a manner other than as a
result of a disclosure by Recipient; (b) was available to Recipient on a
nonconfidential basis prior to its disclosure to Recipient by Disclosing Party;
or (c) becomes available to Recipient on a nonconfidential basis from a source
other than Disclosing Party, if Recipient has no reason to believe such source
is bound by or subject to a confidentiality agreement with Disclosing Party, or
is otherwise prohibited from transmitting the information to Recipient.
(c) Recipient hereby acknowledges and agrees that the Confidential
Information, including, without limitation, documents, works, files, customer
lists, information and data in the possession, custody or control of Recipient,
whether gathered by Recipient or any other person during the term of
Recipient's negotiations with Disclosing Party or thereafter, whether or not
reduced to writing or an electronic or magnetic medium and relating to the
business activities of Disclosing Party are and shall remain the sole and
exclusive property of Disclosing Party.
(d) Recipient hereby acknowledges and agrees that upon the termination of
negotiations with Disclosing Party, irrespective of the time, manner or cause
of said termination, Recipient will surrender to Disclosing Party all
Confidential Information, whether in written form or otherwise, relating to the
customers or business of Disclosing Party as well as other property of
Disclosing Party in the custody, possession or control of Recipient.
(e) If Recipient or anyone to whom Recipient transmits any Confidential
Information, to the extent permitted pursuant to this Agreement, becomes
compelled by applicable law to disclose any of the Confidential Information,
Recipient will provide Disclosing Party with prompt notice of such requirement
so that Disclosing Party may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this Agreement. In the event
such protective order or other remedy is not obtained, or Disclosing Party
waives compliance with the provisions of this Agreement, Recipient will furnish
only that portion of the Confidential Information that it is advised by
written opinion of legal counsel is required by applicable law, and such
disclosure will not result in any liability hereunder unless such disclosure was
caused by or resulted from a previous disclosure by Recipient that was not
permitted by this Agreement. Additionally, at Disclosing Party's request and
sole cost and expense, Recipient will exercise its best efforts to obtain a
protective order or other reliable assurance that confidential treatment will
be accorded any such Confidential Information that is disclosed.
2. EMPLOYEE RECRUITMENT. Each party hereto agrees that it will not
recruit, solicit to hire or hire any current or future employees of the other
party hereto for a period of eighteen (18) months following the date of this
Agreement.
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3. REMEDIES. Recipient acknowledges and agrees that immediate and
irreparable damage will result to Disclosing Party if Recipient breaches any of
the terms and conditions of this Agreement and that Disclosing Party does not
have an adequate remedy at law to protect its rights and interests as set forth
in this Agreement. Accordingly, Recipient hereby consents to the entry of
temporary, preliminary and permanent injunctive relief by any court of
competent jurisdiction against Recipient to restrain any such breach, in
addition to any other remedies or claims for money damages which Disclosing
Party may seek; and Recipient agrees to render an equitable accounting of all
earnings, profits, and other benefits arising from such violations, and to pay
all costs and counsel fees incurred by Disclosing Party in enforcing this
Agreement, which rights shall be cumulative.
4. REIMBURSEMENT OF FEES AND COSTS. If Disclosing Party commences any
action at law or equity to enforce or interpret the terms of this Agreement,
Recipient acknowledges and agrees that Disclosing Party shall be entitled to
reimbursement from Recipient for its reasonable attorney's fees, costs and
necessary disbursements, in addition to any other relief and/or damages to
which Disclosing Party may be entitled.
5. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any covenant set forth in this Agreement is unenforceable, in
whole or in part, for any reason, including, without limitation, its duration,
scope or Disclosing Party's remedies for any breach thereof, as set forth
above, then such covenant shall not be void, but rather shall be enforced to
the extent that such covenant is deemed to be enforceable by said court, as if
originally executed in that form by the parties hereto.
6. GOVERNING LAW; JURISDICTION AND VENUE, CONSTRUCTION. This Agreement and
the rights and obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
Florida, without giving effect to the choice of law principles thereof. Any
action arising out of or relating to any of the provisions of this Agreement
may be State of Florida, and the parties hereto consent to the venue and
jurisdiction of such court. This Agreement shall be construed without the aid
of any canon, customer or rule or law requiring construction against the
draftsman.
7. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (a) contains the
entire agreement between the parties hereto with respect to the subject matter
hereof, (b) supersedes all prior written agreements and negotiations and oral
understandings, if any, with respect thereto, (c) may not be amended or
supplemented except by an instrument or counterparts thereof in writing signed
by all the parties hereto and (d) may not be discharged except by such written
instrument or by performance.
8. COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto in any number of identical separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
Agreement.
11
9. HEADINGS. The headings and captions contained herein are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
IN WITNESS WHEREOF, this Confidentiality Agreement has been executed by
or on behalf of each of the parties hereto as of the date first above written.
HSNS, INS
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: CTO
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ALLVIDEO NETWORK, INC.
By: /s/ Xxxxxx Xxxxxx, Xx.
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Title: Xxxxxx Xxxxxx, CEO
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