Exhibit 6.2
-----------
AMENDED AND RESTATED DESIGN AND DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DESIGN AND DEVELOPMENT AGREEMENT is made as of
the 16th day of June 2003 by and between ULTIMATTE CORPORATION, a California
Corporation ("Ultimatte"), and SBS INTERACTIVE, CO., a Florida corporation, a
successor by way of its ownership of High Plateau Holdings, Inc., an Ontario
corporation, ("SBS").
RECITALS
A. Ultimatte is the owner of certain patented inventions, proprietary
algorithms, proprietary software and technology, which is used for image
compositing, and processing by the movie and television industry. Ultimatte's
technology allows images of users to be composed as the background source on a
monitor with a pre-recorded foreground video source. Pursuant to this agreement,
Ultimatte will adapt its technology and design hardware for SBS.
B. SBS is the owner of certain patented inventions and proprietary
technology, which is used for pre-recorded video image processing.
C. Ultimatte and SBS (as a successor to High Plateau Holdings, Inc. by way
of purchase) are currently parties to that certain Design and Development
Agreement dated as of the 9th day of September, 1999 (the "1999 Agreement")
pursuant to which Ultimatte previously developed a video compositing device.
D. This Amended and Restated Design Development Agreement is to supersede
and replace in all respects the heretofore-existing 1999 Agreement.
E. In exchange for the development of the Keyer Unit and the granting to
SBS of exclusive rights to commercially exploit the Keyer Unit all as provided
herein, SBS will pay Ultimatte a development fee and royalties as provided
herein.
TERMS AND CONDITIONS
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged and the covenants contained herein and intending to be
legally bound hereby, it is hereby agreed by the parties hereto as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the respective meanings hereinafter set forth:
(a) "Affiliate" shall mean any person that controls, is controlled by,
or is under common control with, another designated person. For purposes of this
definition of Affiliate, the terms "control," "controls," "controlling" and
"controlled" shall mean the possession of the power, directly or indirectly
through one or more intermediaries, to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting
securities, by contract or otherwise and a person will be deemed, at a minimum,
to control any entity in which such person owns, directly or indirectly, fifty
percent (50%) or more of that entity's voting or equity interests.
(b) "Contract Manufacturer" shall mean a vendor selected by SBS to
manufacture the Keyer Units for SBS.
(c) "Intellectual Property" means all copyrights (including, without
limitation, the right to reproduce, distribute copies of, display and perform
the copyright work and to prepare derivative works), copyright registrations and
applications, trademark rights (including, without limitation, registrations and
applications, trademark rights, trade names, mask- work rights under the Semi-
Conductor Chip Protection Act of 1984 (or similar type laws), trade secrets,
know-how, author's rights algorithms, trade rights in packaging, goodwill and
all renewals and extensions thereof, regardless of whether any of such rights
arise under the laws of the United States or any other state, country or
jurisdiction, and all derivatives of any of the forgoing.
(d) "Keyer Unit" shall consist of a video compositing device,
conforming to the specifications, to be developed by Ultimatte in accordance
with this Agreement utilizing Ultimatte's priority technology, which
functionally allows images of persons, as the background source, to be combined
on a monitor with a pre-recorded foreground video source.
(e) "Out of Pocket Expenses" shall mean those reasonable expenses and
disbursements incurred by Ultimatte in connection with the development of the
Keyer Unit hereunder including without limitation reasonable expenses incurred
for out of - county travel, lodging and meals, long distance telephone and
facsimile transmissions, reproduction, special computer hardware and software,
and specialty components and electronic parts, etc.
(f) "Project Development Schedule" shall mean the terms and other
conditions including the time schedule related to the development by Ultimatte
of the Keyer Unit, such project Development Schedule to be mutually agreed upon
by SBS and Ultimatte and when agreed upon shall be deemed to be a part of this
Agreement.
(g) "Royalty" shall mean: (i) seven percent (7%) of the gross revenue
recognized by SBS and any SBS Affiliate from the rental, lease, license or sale
at: (A) SBS Units, and (B) content to be used with SBS Units and any services
provided in connection with the use of the SBS Units; plus (ii) forty percent
(40%) of the gross revenue recognized by SBS and any SBS Affiliate related to
the licensing to a third party of the right to manufacture and sell or use or
rent SBS Units. Royalties payable hereunder shall be held in trust for Ultimatte
until it is paid over to Ultimatte.
2
(h) "SBS Unit" shall mean any device (including the Keyer Unit)
containing (or based upon or derived from) a chipset and/or the binary code
developed by Ultimatte hereunder or under the 1999 Agreement or any device which
utilizes Ultimatte's proprietary technology.
(i) "Specifications" shall mean those functional specifications for the
Keyer Unit as mutually agreed as well as any mutually agreed upon changes
thereto.
2. Development of Keyer Unit. Each of the following steps in the
development and acceptance of the Keyer Unit shall be, as applicable, in
accordance with project Development Schedule:
(a) Ultimatte shall prepare and submit to SBS proposed specifications
and project Development Schedule. Within five (5) days of receipt, SBS shall
review and, in writing, accept the same or advise Ultimatte of the changes to be
made.
i) If Ultimatte accepts the requested changes, it shall revises
the proposed specifications and the Project Development Schedule, as may be
negotiated and agreed upon, and the same shall be accepted by SBS and deemed the
final Specifications and Project Development Schedule.
ii) If the parties are unable to agree upon the specifications and
the Project Development Schedule within forty-five (45) days of the date hereof,
this Agreement shall be terminated and neither party shall have any further
rights or duties to the other hereunder except pursuant to Sections 6 and 13
herein which shall remain in full force an effect.
iii) If SBS, after acceptance of the Specifications and the
Project Development Schedule, desires to modify the same, it shall propose to
Ultimatte the desired changes to the Specifications and to the Project
Development Schedule as well as any equitable adjustments to the Development
free payable hereunder, the delivery dates and other terms. Any such changes
that are finally agreed upon shall be in writing and thereafter the
Specifications and the Project Development Schedule, as modified, shall be the
applicable Specifications and the Project Development Schedule.
(b) Ultimatte shall develop and deliver to SBS for acceptance testing a
prototype of the Keyer Unit that confirms in all material respects to
Specifications (the "Prototype"). SBS shall promptly conduct acceptance testing
of the Prototype to determine whether nor not it confirms in all material
respects to the Specifications. SBS shall share its testing process and results
with Ultimatte.
i) SBS shall advise Ultimatte in writing within five (5) days of
receipt of the Prototype of its acceptance as conforming, in all material
respects, to the Specifications or its rejection of the Prototype otherwise the
Prototype shall be deemed accepted.
3
ii) In the event the Prototype is rejected, SBS shall provide to
Ultimatte, at the time it provides its notice of rejection, a detailed
description of each specific deficiency in which the Prototype failed to conform
to the Specifications. In such event, Ultimatte shall make the necessary
corrections to the Prototype to correct the deficiencies specified by SBS and
re-submit to SBS a corrected Prototype for new acceptance testing in accordance
with this section 2(b).
(c) Upon acceptance by SBS of the Prototype, Ultimatte shall work with
the industrial design engineer specified and paid for by SBS (and reasonably
acceptance to Ultimatte) and with a specialty manufacture selected by Ultimatte
(including providing, to such manufacture, board layouts, Gerber files and the
binary code for the necessary firmware) to have fabricated five (5) Keyer Units,
based upon the accepted Prototype, that are capable of being manufactured in the
ordinary course (the "pre-production Units").
(d) Ultimatte shall deliver three (3) Pre-Production Units conforming
in all material respects to the Specifications for final acceptance testing by
SBS together with the related preliminary xxxx of materials of the Keyer Units.
i) SBS shall perform such acceptance testing on the Pre-Production
Units, as it deems necessary and appropriate to determine whether or not the
Pre-Production Units conform in all material respects to the Specifications. SBS
shall share its testing process and results with Ultimatte.
ii) Within five (5) days, SBS shall accept the Pre-Production
Units if they conform in all material respects to the Specifications. In the
event the Pre-Production Units are rejected, SBS shall provide to Ultimatte, at
the time it provides it notice of rejection of the Pre-Production Units failed
to conform to the Specifications together with the Pre-Production Units to be
reworked.
iii) In such event, Ultimatte shall make the necessary corrections
to the Pre-Production Units to correct the deficiencies specified by SBS and
re-submit to SBS the five (5) Pre-Production Units, as corrected, for new
acceptance testing in accordance with this Section 2(d).
(e) Following final acceptance, Ultimatte shall obtain, in the name of
SBS, from an appropriate entity, FCC, UL, and CE certification for the SBS
accepted Keyer Units utilizing the balance of the Pre-Production Units. The date
the final FCC, UL and CE certification are received shall be deemed the
"Completion Date").
(f) Promptly following the Completion Date, ultimate shall provide to
SBS or to its contract Manufacturer the final Keyer Unit xxxx of materials,
chipset (PCB) design and related documentation (including Gerber files and
related binary code to be incorporated as firmware in an Eprom) to manufacture
the Keyer Units.
4
(g) To the extent requested by SBS, Ultimatte shall assist in
coordinating with the initial contract Manufacturer selected by SBS the initial
production run of the Keyer units.
3. Development Fee. SBS shall pay to Ultimatte a "Development Fee" equal to
three hundred thousand dollars ($300,000) in accordance with the following
schedule:
(a) A payment of thirty thousand dollars ($30,000) to be paid upon the
mutual acceptance by SBS and Ultimatte of the Specifications;
(b) A second payment of thirty thousand dollars ($30.000) to be paid
thirty (30) days following the first payment;
(c) A third payment of forty thousand dollars ($40,000) to be paid
thirty (30) days following the second payment;
(d) A fourth payment of forty thousand dollars ($40,000) to be paid
thirty (30) days following the third payment;
(e) A fifth payment of fifty thousand dollars ($50,000) to be paid
thirty (30) days following the fifth payment;
(f) A sixth payments of fifty thousand dollars ($50,000) to be paid
thirty (30) days following the fifth payment;
(g) The balance, sixty thousand dollars ($60.000), shall be paid within
five (5) days following receipt of FCC, CE and UL approvals.
However, the entirety of the unpaid portion of the Development Fee shall be
accelerated and shall become due and payable to Ultimatte by SBS within five (5)
days following the day the last of the FCC, CE and UL obtained approvals is
obtained. Notwithstanding the forgoing, SBS shall be entitled to a ten percent
(10%) reduction in the Development Free for each full thirty day period that
final approval of FCC, CE and UL is not received by the "Estimated Completion
Date" set forth on Project Development Schedule as extended for any causes
beyond the reasonable control of Ultimatte. Until the Completion Date, Ultimatte
shall devote and allocate to the development process contemplated hereunder
adequate and appropriate funding and resources to timely complete the same.
4. Out-of-Pocket expenses. Upon receipt of an invoice, SBS shall promptly
pay to Ultimatte the Out-Of-Pocket Expenses incurred by Ultimatte in performing
its duties and obligations hereunder.
5. Grant of Rights. Unless earlier terminated and so long as SBS performs
all of its obligations hereunder (including making all payments to Ultimatte
when due and making all keyer Units as required herein), SBS shall have the
5
worldwide right to manufacture, have manufactured, sell, rent and use the Keyer
Units as developed hereunder.
6. Protection of Intellectual Property. Except as expressly provided
herein, SBS shall not, without Ultimatte's prior written consent, provide or
otherwise make available to any person, in any form, the intellectual property
related to Keyer Units except to a contract Manufacturer or a sub-licensee (each
of whom shall be bound, in writing for the benefit of Ultimatte, to Maintain the
confidentially of the same) for use in manufacturing a Keyer Unit. SBS hereby
acknowledges and confirms;
(a) All right, title and interest in and to the Intellectual Property
Rights comprising or embodied in the Keyer Units and its related documentation
(other than end-user documentation), is owned by Ultimatte and SBS has no rights
therein;
(b) SBS has no right to manufacture, have manufactured, sell, rent or
use the Keyer Units or End-User Documentation except as expressly provided
herein;
(c) Except to the extent disclosed in any issued patents and except for
otherwise publicly known information, the ideas and expressions contained within
the Keyer Units and any related documentation (other than end-user
documentation) are confidential, proprietary information and trade secrets if
Ultimatte, whether or not any portion there of is, or may be, copyrighted or
patented;
(d) Neither SBS, nor its employees, representatives, or agents, have
acquired, or shall attempt to acquire, any proprietary interest in, or any other
right to, the Intellectual Property Rights embodied in, the Keyer Units and in
its related documentation (other than end-user documentation) other than as
expressly granted herein.
(e) SBS Shall not modify, translate, reverse assemble, reverse compile
or otherwise reverse engineer the Keyer Units, or any portion thereof; and
(f) The Units and related documentation (other than end-user
documentation) shall be identified as proprietary to Ultimatte and include on
each Keyer Unit and on each copy of the related documentation (other than
end-user documentation) shall be Ultimatte designed patent, copyright and
trademark notices.
7. Manufacturing and Supply. Except with respect to the fabrication of the
Prototype and five (5) Pre-Production Units, SBS shall be responsible for all
costs and expenses associated with the production of the Keyer units.
8. On-Going Product Support.
(a) Ultimatte shall provide SBS with advice and recommendations by way
of on-going product support in connection with the manufacture of Keyer Units
such as assisting SBS and its Contract Manufacturer in reducing costs, improved
6
use ad sourcing of components, product testing, and other similar matters
involving the manufacture of the Keyer Unit.
(b) For a period of one (1) year from the Completion date, Ultimatte
shall correct any material errors in the chipset design and related binary code
(the "Support Period"). Support after the Support Period shall be as may be
agreed from time to time.
9. End-User Support. At its sole cost expense, SBS shall:
(a) Utilize its best efforts to promote, market and distribute the
Keyer Units;
(b) Be responsible for all warranty obligations and provide appropriate
customer product support, including the processing of returns and defects for
End-Users;
(c) Provide its sales an technical personal with adequate training,
technical, and marketing support, sales and technical literature, including such
materials as may be made available to SBS by Ultimatte, and such other
assistance as may be necessary or appropriate in promoting the sale and support
of Keyer Units; and
(d) Advise and provide support to purchasers of the Keyer Units in
connection with their use.
10. Royalties, Reports and Records.
(a) Royalties. SBS shall pay Ultimatte the Royalties accrued during
each quarter no later than the thirtieth (30th) day of the month following such
quarter.
(b) Royalty Reports. Not later the quarterly due date of the payment of
the Royalties, SBS shall provide Ultimatte a written royalty report setting
forth the number of Keyer Units sold, leased (and on lease), rented (and being
rented) and manufactured by or for SBS and all of its Affiliates, even if none,
for each applicable quarter, the revenue recognized related thereto, and a
calculation of the amount of Royalties payable to Ultimatte for such period.
Said Royalty Report shall be certified by the President or Chief Financial
Officer of SBS, under penalty of perjury, that such Report is true and accurate
in all respects. In addition, SBS shall provide to Ultimatte such other
information as may be reasonably requested by Ultimatte from time to time
related to the Keyer Units.
(c) Records Retention. SBS shall maintain all records, which are
necessary and adequate to reconstruct the material and relevant information
concerning the sale of each Keyer Unit. Such records shall be kept for a period
of five (5) years following the end of SBS's fiscal year in which the reported
transactions occurred.
(d) Inspections. Not more frequently than quarterly, Ultimatte and its
representatives shall have the right to examine and make copies of relevant
records and books of account at any reasonable time during SBS's normal business
7
hours, upon not less than 72 hours advance written notice. If the examination of
such records reveals a deficiency of greater than three percent (3%) during any
reporting period, SBS shall reimburse Ultimatte for the costs and expenses with
respect to such examination.
11. Payments. All payments due Ultimatte hereunder shall be made at the
offices of Ultimatte or by wire transfer to such account designated in writing
by offices of Ultimatte, and be made in lawful currency of the United States.
Any payments due Ultimatte which are not paid by the due date shall bear
interest at the rate of one and one-half percent (1.5%) per month or such lower
rate as may be the maximum rate permitted under applicable law, from such due
date until the date of payment of full and shall be paid by Ultimatte quarterly
at the same time as the Royalties are due. All costs of collection incurred
hereunder by Ultimatte including reasonable attorneys' fees and court cost shall
be paid by SBS.
12. Marketing.
(a) Commitments. SBS shall use its best efforts to market, promote,
advertise, sell and distribute the Keyer Units.
(b) Manner. SBS shall market the Keyer Units consistent with good
business ethics and in a manner that will reflect favorably on Ultimatte. SBS
shall refrain form engaging in any illegal, unfair or deceptive trade practices
or unethical business practices whatsoever with respect to promotion or sale of
End-User Licenses.
(c) Marketing Expenses. All sales and marketing expenses shall be borne
by SBS. In the event that SBS specifically request Ultimatte's assistance in
special marketing programs, SBS shall reimburse Ultimatte for reasonable
out-of-pocket travel expenses incurred by Ultimatte thereby.
13. Patent, Copyright and Other Markings. The license granted hereunder is
conditioned upon SBS' complete compliance with the provisions of the patent,
trademark and copyright laws in the countries in which the Keyer Units are sold
including all applicable rules and regulations. SBS shall keep records of, and
to promptly advise Ultimatte when a Keyer Unit bearing an Ultimatte trademark is
first sold in a country.
(a) SBS shall cause each Keyer Unit to bear appropriate patent markings
(in accordance with 35 U.S. Code ss. 287) by fixing thereon either the word
"patent" or the abbreviation "xxx." Together with the numbers of applicable
patent(s) as directed by Ultimatte.
(b) SBS shall place on each Keyer Unit, at the location of where the
serial number or governmental approvals are displayed, the trademark "powered by
Ultimatte(TM)" and appropriate copyright notices with respect to the
Ultimatte-provided firmware, software and other copyrightable works, which
trademark and copyright notices shall be permanently affixed. SBS shall
8
cooperate with Ultimatte, in protecting and defending Ultimatte's patents,
trademarks and copyrights utilized or to be utilized with the Keyer Units.
(c) SBS shall notify Ultimatte in writing of any infringements or
imitations by third parties of the Keyer Units or any other Ultimatte
Intellectual Property which may come to the attention of SBS, Ultimatte shall
have the sole right to determine whether or not any action shall be taken on
account of any such infringement or imitation. Ultimatte shall be entitled to
receive and retain all amounts awarded as damages, profits or otherwise in
connection with such action, it any, except for such amounts specifically
identified as resulting from SBS' lost profits, which amounts shall be awarded
to SBS.
(d) SBS shall take every action and execute all such documents as may
be necessary or appropriate to reflect Ultimatte's rights in its Intellectual
Property. In the event that SBS fails to either execute any such documents or
take any such action reasonably requested of it in furtherance of this
subsection, the SBS hereby names Ultimatte its true and lawful attorney-in-fact
for the sole purpose of executing such documents or taking such action in the
place and stead of SBS. This power of attorney is coupled with an interest, is
irrevocable, and shall survive the termination or expiration of this Agreement.
14. Minimum Payments. So long as SBS pays to Ultimatte the minimum
Royalties set forth on the following table (or an amount equal thereto in lieu
of a lesser amount of Royalties actually earned during such quarter) for each
full quarter following the Completion Date, Ultimatte shall not, for itself or
any other person, develop, license, manufacture or sell any stand alone consumer
product utilizing the Keyer Unit chipset and binary code developed hereunder
which would be offered to consumers at a manufacturer's suggested retail price
of less than three hundred dollars ($300). Nothing contained herein is intended
to preclude Ultimatte from developing, selling or licensing a product providing
similar functionality but which is bundled with, and incorporated in, another
product. Notwithstanding the foregoing, the limitations contained herein shall
apply to chipset design, binary code or other Intellectual Property heretofore
licensed to Avid Technology, Inc.
Quarter Following
Completion Date Amount
----------------- ----------------
1st Required $100,000
2nd Required $150,000
3rd $250,000
4th $250,000
5th The greater of $312,500 or 50% of
and each quarter the then current year's projected
thereafter amount of royalties due Ultimatte.
9
No later than the 15th day of December of each year during the term of this
Agreement, SBS shall provide to Ultimatte a royalty projection for the then
following year. If at any time SBS fails to pay Ultimatte the quarterly minimum
amount set forth above when due, Ultimatte shall thereafter have the right to
use the Keyer Unit chipset and binary code developed hereunder for any purpose
(including the right to manufacture, sell or rent or license the same to
others). In such event, SBS provided it is not otherwise in default hereunder,
shall have the continuing right to manufacture (and have manufactured) and sell
or rent Keyer Units and to sublicense the same to third parties.
15. Limited Warranty.
(a) The final design of the developed Keyer unit to be provided to SBS
by Ultimatte and services which may be rendered by Ultimatte to, or on behalf
of, SBS are being provided "AS-IS" and without any warranty of any kind other
than the Test Units and the Pre-Production Units, as finally delivered to SBS,
shall conform, in all material respects, to the Specifications existing at the
time of delivery.
(b) No statement or recommendation made or assistance given by
Ultimatte, or its representatives, to SBS shall constitute a warranty or a
waiver by Ultimatte of any of the provisions herein or affect Ultimatte's
obligations or liability as provided herein unless concurrently or subsequently
made by an officer of Ultimatte in writing.
(c) NO REPRESENATION OR OTHER AFFIRMATION OF FACT (INCLUDING BUT NOT
LIMITED TO ANY STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE
OF THE KEYER UNIT AND SERVICES TO BE FURNISHED HEREUNDER) WHICH IS NOT CONTAINED
IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ULTIMATTE WHATSOEVER. THE
EXPRESS WARRANTIES SET FORTH HEREIN ARE MADE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED. ULTIMATTE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTS OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE.
16. Indemnification.
(a) SBS shall indemnify, defend and hold Ultimatte harmless from any
claims, damages, costs, liabilities and expenses (including reasonable
attorneys' fees) resulting from, or arising out of, or relating to:
i) the manufacture, sale or use by any person of any Keyer Units
manufactured or sold by SBS, its Affiliates, its sub licensees or any person
authorized by SBS; or
10
ii) the action, inaction, statement, representation or warranty
made by any employee, agent or representative of SBS, its affiliates, its sub
licensees or any person authorized by SBS which have not been expressly
authorized herein.
(b) Ultimatte shall indemnify, defend and hold SBS harmless from any
claims, damages, costs, liabilities and expenses (including reasonable
attorneys' fees) resulting from, or arising out of, or relating to the
infringement by the Keyer Unit chipset of the binary code created by SBS
hereunder of any U.S. proprietary right of any third party except for patents
that may be hereafter issued.
17. Confidentiality.
(a) Confidential Information. Both Parties either have provided or will
provide to each other certain information necessary for the other to perform its
respective obligations under this Agreement directly related to the Keyer Unit.
All such confidential and proprietary information, technical data, know-how, and
trade secrets of a party related to the Keyer Unit which is identified as such
(or which the other party knows or reasonably should know to be such) will be
deemed "Keyer Unit Confidential Information" as it is intended that other
confidential information not directly related to the Keyer Unit will be governed
by the Non-Disclosure Agreement between the parties of even date.
Notwithstanding the foregoing, information will not be deemed Keyer Unit
Confidential Information if and to the extent : (I) it was already known to the
disclosing party prior to the date of this Agreement as established by
documentary evidence; (II) it is in or has entered the public domain through no
breach of this Agreement or other wrongful act of the disclosing party; (III) it
has been rightfully received by the disclosing party from a third party and
without breach of any obligation of confidentially of such third party to the
non-disclosing party; (IV) it has been approved for release by written
authorization of the non-disclosing party; or (V) it is required to be disclosed
pursuant to a final binding order of a government agency or court of competent
jurisdiction, provided that the non-disclosing party has been given reasonable
notice of the pendency of such an order and the opportunity to contest it.
(b) Obligation of Confidentiality. Both parties understand and agree
that they will be deemed in a fiduciary relationship of confidence and trust
with respect to the Keyer Unit Confidential Information to any third party or to
use if for any purpose other than the purpose described herein. Each party
agrees that if will employ all reasonable steps to protect the Keyer Unit
Confidential Information from unauthorized or inadvertent disclosure or use,
including without limitation all steps that it takes to protect its own
information that it considers proprietary and trade secret. Both parties shall
cause all written materials and documents containing the Keyer Unit Confidential
Information obtained from the other party (including Sketches, drawings,
reports, notes, copies, abstracts and magnetic media) to be plainly marked to
indicate the confidential nature thereof and to prevent the unauthorized use or
disclosure thereof.
11
18. Limitation of Liability.
ULTIMATTE SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTLY DAMAGES INCLUDING WITHOUT LIMITATION LOST BUSINESS, PROFITS OR
GOODWILL ARISING FROM ANY ACTION BASED UPON A BREACH OF ANY OF ULTIMATTE'S
OBLIGATIONS CONTAINED HEREIN OR BASED ON ANY OTHER THEORY (TORT OR OTHERWISE)
AGAINST ULTIMATTE ARISING OUT OF THE TRANSACTIONS OR THE RELATIONSHIP
CONTEMPALTED HEREBY MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION HAS ACCURED.
19. Entire Agreement and Waiver. This Agreement contains the entire
agreement between the parties hereto and supersedes all prior and
contemporaneous agreements, arrangements, negotiations and understandings
between the parties hereto, relating to the subject matter hereof including
without limitation the 1999 Agreement. There are no other agreements,
understandings, statements, promises or inducements, oral or otherwise, contrary
to the terms of this Agreement. No representations, warrants, covenants or
conditions, express or implied, whether by statute or otherwise, in any one or
more instances, shall be deemed to be, or shall constitute, a waiver of any
term, provision hereof, whether or not similar, nor shall such waiver constitute
a continuing waiver, and no waiver shall be binding unless executed in writing
by the party making the waiver.
20. Assignability. Neither party shall assign this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld, and any attempted assignment without such consent shall
be null and void. Subject to the foregoing, this Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and permitted assigns.
21. Severability. If any provision this Agreement of the application of any
such provision to any person or circumstance, will be declared judicially (or by
any tribunal) to be invalid, unenforceable or void, such decision will not have
the effect of invalidating or voiding the remainder of this Agreement, it being
the intent and agreement of the parties that this agreement will be deemed to
have been amended by modifying such provision to the extent necessary to render
I valid, legal and substituting therefore another provision that is legal and
enforceable and that achieves, as close as possible, the same objective.
22. Further Assurances. Each party hereto agrees to execute, acknowledge
and deliver such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purpose and intent of this
Agreement.
23. Use of Party's Name. Other than as expressly permitted by this
Agreement, no right is granted by this Agreement, to either party to use in any
12
manner the name of the other or any other trade name or trademark of the other
in connection with the performance of this Agreement.
24. Notice. All written notices or other written communications required
under this Agreement shall be deemed properly given when provided to the parties
entitled thereto by personal delivery (including delivery by commercial services
such as messengers and airfreight forwards), by electric means (such as by
electronic mail, telex or facsimile transmission) or by mail sent registered or
certified mail, postage prepaid at the following addresses (or to such other
address of a party designated in writing by such party to the other):
If to Ultimatte: Ultimatte Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax No: 0-000-000-0000
If to SBS: SBS Interactive, Co.
000 Xxxxxxx Xxxx, Xxxx 0
Xxxxxxx Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxx Gotllep
Fax No: 0-000-000-0000
All notices given y electronic means shall be confirmed by delivering to the
party entitled thereto a copy of said notice by certified or registered mail,
postage prepaid, return receipt requested. All written notices shall be deemed
delivered and properly received upon the earlier of five (5) days after mailing
the confirmation notice or upon actual receipt of the notice provided by
personal delivery or electronic means.
25. Relationship of the Parties. Both parties are independent contractors
under this Agreement. Nothing contained in this Agreement shall be construed as
or agent of the other. Neither party hereto shall have any express or implied
right o authority to assume or create any obligations on behalf of or in the
name of the other party or to bind the other party to any contract, agreement or
undertaking with any third party.
26. Applicable law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
27. Headings. Section headings are inserted for convenience only and in no
way are to be construed to define, limit or affect the construction for
interpretation hereof.
28. Force Majeure. A party shall not be liable for nonperformance or delay
in performance caused by any event reasonably beyond the reasonable control of
such party including, but not limited to wars, hostilities, revolutions, riots,
civil commotion, national emergency, strikes, lockouts, epidemics, fire, flood,
earthquake, force of nature, explosion, embargo, or any other Act of God, or any
13
law, proclamation, regulation, ordinance, or other act or order of any court,
government of governmental agency.
29. No Third-Party Benefit. It is the explicit intention of the parties
hereto that no person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
either of the parties hereto, and that the covenants, undertakings, and
agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective successors
and assigns as permitted hereunder.
30. Interpretations and Definitions. This Agreement has been jointly
negotiated by the parties and is to be interpreted according to its fair meaning
as if the parties had prepared it together and not strictly for or against any
party, in this Agreement whenever the context so requires, the gender includes
the neuter, feminine and masculine and the number includes the singular and the
plural and words "person" and "party" include individuals, corporations,
partnerships, firms, trusts, associations, other legal entities and any group of
persons acting in concert. Any references to parties, sections, subsections,
exhibits or schedules of this Agreement as appropriate. The words "herein" and
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular articles, sections or other
subdivisions. The words "includes" and "including" shall mean "provisions" of
this Agreement refer to the terms, conditions and promises contained in this
Agreement taken as a whole. All reference to months, quarters or years are
references to calendar months, calendar quarters or calendar years.
31. Execution in Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; and it shall not be
necessary that the signature of all persons required to bind any party, appear
on one or more of the counterparts. All counterparts shall collectively
constitute a single agreement.
32. Schedules and exhibits. All schedules and exhibits, attached hereto and
referred to herein, are an integral part of this Agreement and are incorporated
herein by reference hereby.
33. Custom. All parties to this Agreement shall have the right at all times
to enforce the provisions contained in this Agreement, and in all other
agreements and documents required or provided for herein, in strict accordance
with the terms thereof, notwithstanding any custom or practice in the area or
any conduct or continuing conduct on the part of any party hereto to the
contrary unless expressly agreed to in writing. The failure of any party hereto,
at any time or from time to time, to enforce any of its rights under any
provision herein, strictly in accordance with the same, shall not be construed
as varying the terms hereof, in any way or manner, contrary to the specific
provisions of this Agreement or be construed as modifying or waiving such
provision.
34. Amendments. Unless expressly permitted herein, no supplement,
modification or amendment of any term, provision or condition of this Agreement
14
(including this paragraph) shall be binding or enforceable unless evidenced in a
writing executed by the parties hereto.
35. Non-Solicitation. During the term of this Agreement and for a period of
two years thereafter, neither party will solicit or induce or attempt to induce
any employee or consultant or other independent contractor providing services to
the other party to cease rendering services to such other party including
offering employment to such individuals.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written by persons duly
authorized.
ULTIMATTE CORPORATION SBS INTERACTIVE, CO.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- -------------------------------
Name: Xxxxx Xxxxx Xxxx Xxxxxxx
Title: President President
15
