EXHIBIT 10.15
Software Development & License Agreement
(Two Open TV Applications)
This Agreement is made this 30th day of May, 1997 by and between
Adrenalin Entertainment, a division of Wanderlust Interactive,
Inc., a Delaware corporation with offices at 0000 Xxxxxxxxx
Xxxxxx, Xxx Xxxxxxx, XX 00000 ("Developer"), and Telia InfoMedia
Tele Vision AB, Xxx 0000, 000 00 XXXXX XXXXXX XXXXXX (courier
post delivery: Automobilgatan 8-16) ("Company").
W I T N E S S E T H:
WHEREAS, Developer possesses certain creative and technical
expertise and experience in the field of computer programming
and, in particular, the creation and development of interactive
television applications;
WHEREAS, Company desires Developer to develop certain Interactive
television applications now known as "Mah-Jongg Tile Game" and
"Trivial Pursuit" to operate on the Open TV interactive
television cable system ("Software") in accordance with the
specifications to be provided in Schedule A attached hereto
(Specifications) and in accordance with the Time Schedule also
identified in Schedule A;
WHEREAS, Company desires to license certain rights in the
Software from Developer;
WHEREAS, Developer is willing and able to develop such Software
and license rights to Company in accordance with the terms and
conditions recited herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. Responsibilities of Developer
a) Developer agrees to develop the Software in accordance with
the Specifications identified in Schedule "A" attached hereto.
b) Developer agrees to deliver the Software in accordance with
the Delivery Schedule provided in Schedule A attached hereto.
Developer's conformance with the Delivery Schedule is contingent
on prompt approval of preceding development milestones and timely
payment of amounts due hereunder by Company.
c) Developer shall provide Company with semi-monthly written
reports on the status of the development of the Software. In
addition, Developer's Producer will make herself reasonably
available for telephone consultation at the request of Company.
d) For a period of six (6) months following the acceptance date
of the Software by Company, Developer will, at its own expense
and in an expeditious fashion, make all necessary modifications
to software so that it will operate in material accordance with
the Specifications.
2. Developer's Ownership Rights: Grant of License: Territory.
It is understood and agreed that the Software developed by
Developer hereunder is the sole and exclusive property of
Developer throughout the world. Subject to the terms and
conditions contained herein, Developer hereby grants Company an
exclusive license for fifty (50) years from the date first above
written to perform the Software, publicly, and to permit others
to do so, in the countries of the European continent,
Scandinavia, the United Kingdom, and Eire (the "Territory").
Notwithstanding the foregoing grant of rights, nothing herein
will prevent Developer from incorporating elements of computer
code contained in the Software into other software products
developed by Developer and supplied by Developer to third
parties, or exploited by Developer, in the Territory. Such use
will not be deemed an infringement of Company's rights or result
in any liability on the part of Developer or any third party.
3. Equipment and Documentation to be Provided by Company.
Company will provide Developer at no charge with sufficient set-
top boxes and documentation to permit Developer to perform the
services required hereunder.
4. Compensation
a) Company shall pay Developer the following non-returnable
license fees in accordance with the following schedule. All
amounts are in United States dollars and are net of all
withholding and/or taxes.
1. fifty thousand dollars ($50,000) upon execution of this
Agreement;
2. twenty five thousand dollars ($25,000) at the mid-point of
production;
3. thirty five thousand dollars ($35,000) upon acceptance of the
Software by Company, Software will be deemed complete when it is
demonstrated by Developer using a computer network in Developer's
labs. Acceptance by Company will not be unreasonably withheld or
delayed.
b) In addition to the foregoing, if Company sublicenses or
otherwise exploits rights to the Software outside the network
operated by Telia (it being understood that Company shall not
sublicense or otherwise exploit "Trivial Pursuit" outside Sweden
without the express written consent of Developer), Company will
pay Developer twenty five percent (25%) of all amounts received
by Company in connection with such sub-licensing or other
exploitation.
c) In addition to the foregoing, Company hereby agrees to
reimburse Developer for all expenses previously approved by
Company incurred in the performance of this Agreement.
Previously approved expenses may include, but not necessarily be
limited to, overseas courier service, airfare and hotel expenses,
ground transportation, and a reasonable per diem which may be
incurred whenever it is necessary for Developer personnel to
travel outside the Los Angeles area. Developer shall invoice
Company on a monthly basis for such expenses and payment shall be
made on a not 30-day basis by Company.
d) In addition to the foregoing, Company may order up to 6,600
additional questions for the "Trivial Pursuit" Software at a cost
of not greater than $6 per question. Upon receiving Company's
order, Developer will use its best commercial efforts to provide
the additional questions according to the timetable requested by
Company; provided however, that Company understands that all such
questions are subject to review and approval by Developer's
licenser, and Developer can not control the timing of such review
and approval.
e) Upon request of Developer, Company will promptly provide
Developer with all requested usage data, and information
describing the nature and amount of premium channel charges for
use of Software in Sweden. In the event Developer's license in
connection with the "Trivial Pursuit" Software product requires
payment for use of "Trivial Pursuit" on Company's premium channel
in Sweden, then Company will remit to Developer the amount
required by Developer's licenser and Developer will pass along
the amount so received to its licenser. As used in this section,
a "premium channel" is any channel or service not included in
basic cable or broadcast service, for which a separate charge is
made, whether individually, or as part of a package of channels.
5. Payments by Developer to Company During the Term, Developer
will pay Company twenty five percent (25%) of net amounts
received by Developer as a result of licensing rights to the
Software outside the Territory. As used in this Article 6, "net
amounts received" means all amounts received by Developer from
such licensing activities, less amounts required to be paid by
Developer to third parties, such as but not limited to, its
licenser in connection with "Trivial Pursuit".
6. Accounting Statements
a) Each party agrees to keep all usual and proper records and
books of account in connection with the exploitation of the
Software. These books and records will be maintained in
accordance with generally accepted accounting principles. Each
party will deliver to the other within thirty (30) days after the
end of each quarter-annual period, detailed written statements in
the English language setting forth all revenues receiving arising
from exploitation of the Software during such period. Each such
statement will advise the applicable party in writing of the
nature and source of all such revenue.
b) Simultaneous with the delivery of each accounting statement,
the accounting party will pay to the other party by bank-to-bank
wire transfer all amounts shown to be due in the applicable
statement. All payments will be made in United States dollars
using the currency exchange rate in effect on the day the
applicable statements is issued. In the event that the
accounting party is unable because of governmental restrictions
to make payment in the manner described in the preceding
sentence, it will deposit (at the receiving party's expense) to
the receiving party's credit or account, or to such other account
as the receiving party may from time to time designate, in a
depository selected by the receiving party, all sums payable to
the receiving party here under. Interest on all amounts not
received on the dates provided herein will accrue from the date
due at the annual rate of fifteen percent (15%) or the maximum
rate allowed under applicable law (whichever is less). Nothing
herein will, however, be deemed a waiver of the accounting
party's obligation to account and pay all amounts due on the
dates provided herein.
7. Audits
a) A party receiving accounting statements may, from time to
time, examine the records and books of account of the party
providing the statements, as provided in this paragraph only. An
examination may take place only for the purpose of verifying the
accuracy of the applicable accounting statements. An examination
may be made for any particular statement only once, and only
within two years from the date in which the applicable statement
has been received. Books and records may be examined only during
normal business hours, only at the place the party issuing the
statement normally maintains the books and records to be
examined, and only upon reasonable notice. A certified public
accountant, attorney, or equivalent may be engaged to make this
examination. In the event that any examination of any statement
reveals underpayment or under credits in an amount equal to at
least five percent (5%) of the amount otherwise paid or credited
in connection with the applicable statement, then the reasonable
cost of the examination will be paid by the accounting party.
b) If a party has any objections to an accounting statement,
specific notice of that objection together with reasons for it
must be given within three years after receiving the applicable
statement. Each accounting statement will become conclusively
binding on both parties at the end of that three year period, and
not subject to any further objection.
8. Company's Warranties: Confidential Information: Additional
Undertakings. Company warrants and represents:
a) Company possesses the full right, power, and authority to
enter into and perform this Agreement;
b) The source code, documentation and related information
(collectively, "Source Code") to be provided by Developer to
Company for each of the Software products is proprietary and
confidential information of Developer and/or its licenser and
suppliers. Company agrees not to disclose or provide the Source
Code to any third party or use the Source Code for any purpose
other than expressly provided in this Agreement. However,
Company may disclose the Source Code in accordance with judicial
or other governmental order, provided Company shall give
Developer reasonable written notice prior to such disclosure and
shall comply with any applicable protective order or equivalent.
Further, Company shall not be obligated to maintain the
confidentiality of Source Code which Company can prove: (i) is
already known to Company without an obligation to maintain the
same as confidential; (ii) becomes publicly known through no
wrongful act of Company; (iii) is rightfully received from a
third party without breach of an obligation of confidentiality
owed to Developer; or (iv) was independently developed by Company
prior to receipt of the applicable Software product. This
provision shall survive the termination or expiration of this
Agreement.
c) Company agrees to defend, indemnify, and hold Developer
harmless from any and all liability, loss, damage, cost, or
expense (including reasonable attorneys' fees) paid or incurred
by reason of any breach of any of Company's covenants,
warranties, representations, or undertakings hereunder, or by
reason of or in respect of the distribution, exhibition, or
performance of the Software, provided, however, that the
Company's liability to Developer arising out of any obligation of
indemnification will in no event exceed the amount of
consideration paid by Company to Developer hereunder.
d) Credits. At the time of delivery of the "gold" master
visions of each Software product, Developer will provide Company
with all notices and credits which must appear on each Software
product (for example, on start-up screens, credit screens, or
otherwise) and on advertising for each Software product. Company
will take all necessary steps to incorporate the credits which
are required by Developer. Developer may change these notices
upon written notification to Company. Upon such written
notification, Company will use its best efforts to promptly
modify the notices and credits.
e) Developer reserves the right to promote its status as
Developer of the Software, as well as the Agreement.
9. Developer's Warranties. Developer warrants and represents.
a) Developer has the full right, power, and authority to enter
into this Agreement and to provide the Software;
b) the Software is an original work of authorship developed by
or under the direct supervision of Developer;
c) for a period of six months following the acceptance date (the
"Warranty Period"), Software will perform in material accordance
with the detailed design Specifications provided in Schedule A.
In the event that Software does not so perform during this
Warranty Period, Developer shall, at its expense and in an
expeditious fashion, make all necessary changes and modifications
to Software to correct such failure to perform. The foregoing
constitutes Company's exclusive remedy in the event Software so
fails to perform.
d) Developer agrees to defend, indemnify, and hold Company
harmless from any and all liability, loss, damage, cost, or
expense (including reasonable attorneys' fees) paid or incurred
by reason of any breach of any of Developer's covenants,
warranties, or representations hereunder and not due to any
violation or breach by Company of any of its covenants,
warranties, or representations set forth herein; provided,
however, that Developer's liability to Company will in no event
exceed the amount of consideration paid by Company to Developer
hereunder. Furthermore, Developer warrants that it holds all
necessary intellectual property rights in and to the Software;
that to the best of Developer's knowledge and belief Company's
utilization of the Software in accordance with this Agreement
will not infringe upon any third party's intellectual property
rights; and to the best of its knowledge and belief the Software
is free from computer viruses and bugs. For purposes of this
Section, a "bug" means a programming defect which results in the
failure of the Software to: (i) execute continuously, or; (ii)
execute in material conformity with the applicable
Specifications. In the event of any breach of this warranty, the
aforesaid in this Article 9(d) will apply.
10. Infringements
a) Company shall have the right, in its sole discretion, to
prosecute lawsuits against third persons for infringement of its
rights in the Software. Any lawsuit shall be prosecuted solely
at Company's expense and all sums recovered shall be retained by
Company.
b) Developer agrees to provide reasonable cooperation to Company
in the prosecution of any such suit and Company shall reimburse
Developer for any expenses incurred by Developer in connection
with such cooperation.
11. Assignment of this Agreement Company may assign this
Agreement, or assign, sublicense, or otherwise transfer any of
the rights granted hereunder to any company within the Telia
group provided that such company operates primarily in Sweden.
12 Termination
a) Bankruptcy and Insolvency. If Company will be adjudged a
bankrupt or if any insolvency proceedings are instituted by or
against Company and are not dismissed within thirty (30) days
after the institution thereof, or in the event of any
reorganization proceedings, either voluntary or involuntary,
whether or not in bankruptcy, or if a trustee or receiver is
appointed to take over all or a portion of Company's assets,
Company's rights under this Agreement will automatically
terminate. Such termination will be deemed effective of the
commencement of the event which gave rise to such termination.
In the event of such termination caused by Company, then all
moneys due and unpaid by Company pursuant to this Agreement will
thereupon become due and payable. No moneys paid to Developer
will be refundable to Company in any event. Further, all master
disks, CD ROMS and all copies thereof will be returned to
Developer at Company's expense, and in no event will title
thereto, or any rights therein, be acquired by or vest in any
trustee, receiver, or in any other party by reason of such
insolvency, bankruptcy, or other occurrence affecting Company.
b) Breaches If either Company or Developer will fail or refuse
to deliver any of the statements or payments provided hereunder,
and/or fails or refuses to perform any other material obligation
required hereunder, and such failure or refusal is not fully
cured within thirty (30) days following the date of written
notice advising of such failure or refusal, then in addition to
such other rights and remedies which it may have under the law or
otherwise under this Agreement, the notifying party will have the
absolute right during the continuing period of the applicable
failure or refusal to terminate the other party's rights
hereunder with immediate effect and without affecting any of its
own rights hereunder. If this Agreement is so terminated, each
party will, nevertheless, continue to be responsible for
accounting and payments set forth in this Agreement. Upon
notification from Developer. Company will return all master
disks, CD ROMS and other parts in its possession that were
provided under this Agreement.
c) Termination Procedure Upon the termination of this
Agreement, all rights herein granted by Developer to Company will
immediately terminate and will thereupon revert to Developer,
free and clear of all claims by Company.
13 Notices All notices required or permitted to be sent under
this Agreement will be in writing and will be sent by fax with a
courtesy copy sent by DHL courier or other equivalent air courier
service, prepaid. Notices will be sent to Developer's or
Company's address first above written. Notices will be effective
on the next business day after dispatch. Developer or Company
may change the address or party will be effective only upon
receipt. Developer's fax number is (000) 000-0000. Company's
fax number is (000) 000-0000.
14 Miscellaneous
a) This Agreement represents the entire agreement between the
parties in connection with the subject matter of this Agreement.
It can not be changed except upon a written instrument signed by
both parties. This Agreement is governed by and interpreted in
accordance with the copyright law of the United States, and those
laws of the State of California which are applicable to
agreements entered into and performed entirely within the State
of California.
b) No warranties or representations will be deemed to have been
made by either party except as expressly set forth herein.
c) In the event any one or more of the provisions of this
Agreement will be held to be invalid, illegal, or unenforceable,
the remaining provisions of this Agreement will be unimpaired and
the invalid, illegal, or unenforceable provision will be replaced
by a mutually acceptable provision which, being valid, legal, and
enforceable, comes closest or unenforceable provision.
d) A waiver by either party of any term or condition of this
Agreement will not be deemed or construed to be a waiver of such
term or condition for the future. All remedies, rights,
undertakings, and obligations contained in this Agreement will be
cumulative and none will be in limitation of any other remedy,
right, undertaking, or obligation of either party.
e) Nothing herein contained will be construed to create a
partnership or joint venture between the parties hereto and
neither party has the power to bind the other except as expressly
provided herein. Company in all dealings hereunder is an
independent contractor.
f) Anything in this Agreement to the contrary notwithstanding,
Company agrees that it will not permit the public performance of,
or otherwise exploit or make any use whatsoever of the "Trivial
Pursuit" Software product after the last day of Developer's
rights (which date Developer will advise Company upon written
request of Company) unless it first enters into separate
agreement(s) with all parties controlling rights to "Trivial
Pursuit", including, but not necessarily limited to, Developer's
licenser. Developer will request that Developer's licenser give
Company the right of first refusal to acquire further rights (in
whatever form they may be offered (if at all) by Developer's
licenser) to "Trivial Pursuit".
g) Developer will not be bound by this Agreement until it is
signed by both parties.
IN WITNESS WHEREOF, Developer and Company, intending to be
legally bound, have executed this Agreement on the day and date
first above written.
"Company" "Developer"
TELIA INFOMEDIA TELEVISION AB ADRENALIN ENTERTAINMENT, a
division of Wanderlust
Interactive, Inc.
By: s/ SSL By: s/ Xxx Xxxxx
PED\SDLA.897
