AGREEMENT
This agreement is made this 8th day of December, 1997
PHILIPS CONSUMER ELECTRONICS B.V. a company incorporated in Eidhoven, the
Netherlands and its affiliated companies (hereinafter collectively or
individually referred to as "Phillips") of the one part
And
TECNOCHANNEL SDN BHD, a company incorporated in Malaysia under the Malaysian
Companies Act 1965 with business address at Xxxx X0, Xxxxxxxxxx Xxxx Xxxxxxxx,
Lebuhraya Puchong, Xxxxxx Xxxx Xxxxx Xxxxx, 00000 Xxxxx Xxxxxx ("Tecnochannel")
of the other part.
WHEREAS
1. Tecnochannel is an operator of Internet TV service and a provider of
On-line service over the Internet TV.
2. Philips is in the business of manufacturing consumer electronics and
possesses the capability and technical know-how to develop and manufacture
the set-top box hardware which is necessary for use to access the Internet
via the television.
3. Tecnochannel possesses the skills and know-how to develop the software
which are for use to access the Internet via the television.
4. For the purposes of mutual benefit and enhancement of the commercial value
of their respective business Philips and Tecnochannel are desirous of
collaborating in the development of a system which is capable of operating
the Internet TV.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
ARTICLE 1. DEFINITION
1.1 Unless the context otherwise requires, the following words shall
have the following meaning:
AFFILIATED COMPANY means those companies whether within or without the
Territory which are in the control of Philips.
INTERNET TV OR INTERNET TV SYSTEM means the system comprising the
hardware and the software which are jointly developed by Philips and
Tecnochannel hereunder for the purposes of enabling registered users to
access the Internet via their television set.
ON-LINE SERVICE means the network services provided by Tecnochannel to
registered users of the Internet TV.
INSTRUCTION MANUAL means the manual containing instructions to registered
users on, inter alia, the STB, the On-line service and the procedure on
registration for the On-line service.
REGISTERED USERS means users, both individuals and corporation, who have
paid the requisite registration fees and have signed on and registered
with Tecnochannel for the On-line service of the Internet TV.
SOFTWARE means the computer programs developed or to be developed by
Tecnochannel as part of the Internet TV system.
SPECIFICATION means the technical specification of the STB annexed
hereto as Schedule I and it includes any update modification or
improvement of or on the same.
STB means the set-top box being the hardware including any periphery
hardware which is developed or to be developed by Philips based on the
software developed by Tecnochannel as part of the Internet TV system for
use to convert Internet TV system for use to convert Internet data into
television receptable signals and vice versa.
TERRITORY means Malaysia and such other countries as the parties may
agree upon from time to time.
1.2 For the purposes of this agreement any reference to the Software,
the STB and the Instruction Manual shall include a reference to any
updated or improved version or a new generation of the same as the
case may be.
1.3 This agreement shall be construed and applied in accordance with the
laws of Singapore.
ARTICLE 2. THE AGREEMENT
2.1 In consideration of the mutual promises and covenants herein
expressed the parties hereto hereby agree to and declare that they
shall collaborate in the development, manufacture, sale and
marketing of the STB in the Territory in the manner and upon the
terms and conditions herein contained.
ARTICLE 3. SOFTWARE; DEVELOPMENT AND LICENSING
3.1 Tecnochannel shall be responsible for the development of Software
which is necessary for running the STB and the Internet TV system
AND in this connection Tecnochannel hereby further agrees to provide
Philips with full technical and application support with respect to
the development of software interfacing.
ARTICLE 4. SET-TOP BOXES; MANUFACTURE
4.1 Philips shall be responsible for manufacturing the STB in accordance
with the Specification and in compliance with the Software operating
requirements.
4.2 The STB will be manufactured in accordance with Philips' quality
procedures as communicated to and accepted by Tecnochannel AND
Tecnochannel shall be entitled, at its own costs and expense and at
such times as may be mutually agreed upon, visit the manufacturing
facilities of Philips or of its affiliated companies.
4.3 Philips reserves its right at any time during the term of this
agreement to amend the Specification and to make mechanical,
electrical or design changes in or to the STB PROVIDED THAT such
amendments and changes do not affect the appearance, function or
reliability of the STB and that Tecnochannel is informed fourteen
(14) days in advance of any such amendments or changes.
4.4 In the event of amendments to the Specification and changes to the
STB that have effect on the performance, function or reliability of
the STB Philips shall inform Tecnochannel thirty (30) days in
advance to enable Tecnochannel to review and determine the
suitability and compatibility of the Software with the amendments
and changes.
ARTICLE 5. SALES AND DISTRIBUTION
5.1 Philips shall by itself or through its agents, servants or
affiliated companies sell and distribute the STB in the Territory.
5.2 In the performance of its obligation aforesaid Philips hereby
undertakes with Tecnochannel to use its best endeavor to ensure
sufficiency of stocks of the STB in the Territory.
5.3 Philips further agrees with Tecnochannel to supply and sell to
Tecnochannel [***] units of the STB as per terms and
conditions of the sales and purchase contract dated Oct 31st 1997
between Tecnocahnnel and Philips.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
ARTICLE 6. THE INSTRUCTION MANUAL AND PHILIPS' WARRANTY
6.1 The STB shall be sold and distributed under Philips' standard
packaging containing the Instruction Manual and carrying Philips'
warranty against defects for a period of 12 months.
6.2 Philips shall print the Instruction Manual and it must be printed in
accordance with the content and layout as approved by Tecnochannel.
ARTICLE 7. MARKETING AND PROMOTION
7.1 It is hereby agreed and declared that Philips and Tecnochannel shall
jointly market and promote the STB and the On-line service in the
Territory AND where appropriate or necessary Philips shall procure
its agents, servants or affiliated companies in the Territory to
carry out and perform the marketing and promotion jointly with
Tecnochannel.
ARTICLE 8. THE ON-LINE SERVICE
8.1 Tecnochannel shall be responsible for the provision and maintenance
of the On-line services and shall at its costs and expenses maintain
a homepage for this purpose and in connection with the On-line
service. Tecnochannel shall have an absolute discretion in
determining the following:
a) the terms and conditions governing the provision of the same;
b) the types of services to be provided;
c) the contents to be provided; and
d) the layout, design, name and address of the homepage.
ARTICLE 9. TECHNICAL CONSULTATION
9.1 The parties shall at their own cost and expense hold technical
consultation once a year or as regularly as circumstances may demand
to review the STB with a view to improving the same in order to meet
the need, if any, arising from development of new software or from
emergence of new applications.
The technical consultation will be held at such place and at such
times at the request of either party hereto served on the other in
writing at least 14 days in advance.
ARTICLE 10. FORCE MAJEURE
10.1 Subject to clause 10.2 neither party shall be liable in damages nor
have the right to cancel this agreement for any delay or default by
the other party which arose from or are caused by unforeseen
conditions including but not limited to acts of God, government
restrictions, continuing domestics or international problems such as
wars or insurrections, strikes, fires, flood, work stoppage or
embargoes.
10.2 Should the events aforesaid be expected to continue for a period
exceeding three months, this agreement may be terminated by the
parties hereto upon 30 days notice in writing to the other.
ARTICLE 11. TERM AND TERMINATION
11.1 This agreement shall come into force from the date first above
written and shall remain in force until 2 years from the date above
AND thereafter it shall continue and shall be extended automatically
for successive periods of twelve months until termination by either
party in accordance with the procedure set forth below.
11.2 This agreement may be terminated by the parties hereto by notice in
writing served on the other at least three months before the
termination takes effect.
11.3 Without affecting the generality of the provision aforesaid either
party hereto shall be entitled to terminate this agreement forthwith
in the following circumstances, that is to say when party:
a) becomes insolvent;
b) makes general assignment for the benefit of its creditors;
c) suffers or permits the appointment of receiver or a receiver and
manager for its business and or assets;
d) is subject to any winding-up proceeding; or
e) commits a material breach of this agreement in respect of which a
notice to remedy has been served on the defaulting party and no
remedy has been made pursuant to the said notice for 30 days.
ARTICLE 12. NOTICES
12.1 All notices, demands or consents required under this agreement shall
be in writing and shall be served by hand delivery or by prepaid
registered post at the address of the parties hereinafter stated or
at such other address as may be made known to the parties hereto
from time to time.
12.2 The address of the parties for the purposes of this clause shall be
as follows:
Tecnochannel Sdn Bhd.
Xxxxxxxxx 0, Xxx X0, Xxxxxxxxxx Xxxx Xxxxxxxx
Lebuhraya Xxxxxxx-Xxxxxx Xxxx, Xxxxx Xxxxx
00000 Xxxxx Xxxxxx
Philips Singapore Pte Ltd.
Television Asia Pacific, New Business
No. 000X Xxxxxx 0 Xxx Xxxxx
Xxxxxxxxx 000000
ARTICLE 13. TIME OF ESSENCE
13.1 Time, whenever mentioned in this agreement, shall be of the essence.
ARTICLE 14. DISPUTES RESOLUTION
14.1 Any dispute arising out of or in connection with this agreement,
including any question regarding its existence, validity or
termination, shall be determined and resolved by an arbitrator to be
appointed by the parties hereto.
ARTICLE 15. INDEMNITY
15.1 Philips shall defend at its own cost and expense any suit or
proceedings brought by any third party against Tecnochannel insofar
as such suit or proceeding is based on a claim that the STB sold and
distributed by Philips hereunder infringes one or more of the patent
rights owned or controlled by such third party PROVIDED that Philips
is notified promptly in writing of the commencement or threat of any
such suit or proceeding for infringement and is given full authority
at Philips's option to settle or conduct the defense thereof and
full assistance and co-operation in the said defense AND PROVIDED
FURTHER that no cost or expense may be incurred to the account
of Philips without Philips' prior consent and knowledge.
15.2 In the event of the aforesaid, Philips may at is option and at its
own cost and expense:
a) procure for Tecnochannel the right to continue using the STB;
b) replace the STB with a non-infringement set-top box; or
c) modify the STB and render it non-infringement.
d) Philips shall not be liable for any patent infringement arising
from compliance with Tecnochannel's design specifications or
instructions provided that such patent infringements are not
within Philips' reasonable or foreseeable knowledge.
ARTICLE 16. INTELLECTUAL PROPERTY RIGHTS
16.1 The STB as sold and distributed by Philips shall carry Philips'
brand name together with the subname "MyWeb" belonging to
Tecnochannel and or such other subname(s) as Tecnochannel may
determine or use.
16.2 This agreement shall not be construed as giving Tecnochannel a right
or licence in the tradename or trademarks of Philips and in this
connection Tecnochannel shall not use the same in any way or manner
whatsoever without the written consent of Philips first had and
received.
ARTICLE 17. MISCELLANEOUS
17.1 The failure of any party to enforce or assert reliance upon, at any
time or for any period of time, any of the provisions of this
Agreement, shall not be construed as a waiver of such party's rights
under such provisions, or the right of such party thereafter to
enforce each and every provision of this Agreement.
17.2 This Agreement or any rights arising therefrom may not be
transferred or assigned in whole or in part by either party without
the express written consent of the other party.
17.3 Philips may, at its option, carry out such aspects of this Agreement
as it may desire through one or more of its affiliates, provided,
however, that such use or the acquiescence in such use shall not,
nor shall it be deemed to, substitute any such affiliates as the
contracting party hereunder in the place of Philips.
17.4 This Agreement sets forth and shall constitute the entire agreement
and understanding between Philips and Tecnochannel as to the subject
matter of this Agreement and merges all prior discussions between
them and neither of the parties hereto shall be bound by any
conditions, definitions, warranties or representations with respect
to the subject matter of this Agreement other than expressly
provided in this Agreement or as duly set forth on or subsequent to
the date hereof and in writing and signed by a proper and duly
authorised officer of the party hereto to be bound thereby.
17.5 Public announcements of either party shall be communicated to and
agreed on by the other party, prior to publication.
17.6 Each party will protect the other's Confidential Information from
unauthorised dissemination and use with the same degree of care that
each such party uses to protect its own like information. Neither
party will use the other's Confidential Information for purposes
other than necessary to directly further the purposes of this
Agreement. Neither party will disclose to third parties the other's
Confidential Information without the prior written consent of the
other party. The confidentiality undertakings of both parties
pursuant to this Article shall remain in full force and effect
during the duration of this Agreement and five (5) years thereafter.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first written above in a manner legally binding on them.
FOR PHILIPS : FOR TECNOCHANNEL :
By: /s/ Kopeczek By: /s/ X.X. Xxxx
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Name: P. Kopeczek Name : X.X. Xxxx
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Title : S.V.P./GM Title : CEO
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