AGREEMENT
BETWEEN
Narrowstep Inc, whose primary place of business is 00 Xxx Xxxxxxxxx Xx, Xxxxxx
X0X 0XX ("Narrowstep")
AND
Mobestar Ltd, whose primary place of business is 00 Xxx Xxxxxxxxx Xx, Xxxxxx X0X
0XX ("Customer")
DATED: 9th February 2004
This Agreement sets out the terms and conditions under which Narrowstep will
provide and the Customer will receive the Products and Services (as defined
below), details of which are set out in the Order Form of even date which has
been signed by the Customer and accepted by Narrowstep.
A. DEFINITIONS
In this Agreement the following words and expressions shall have the following
meanings :
"Commencement Date" means the date on which Narrowstep will commence providing
the Products and Services to the Customer being the date Narrowstep generates an
e-mail to the Customer which includes the information required to allow the
Customer to send and receive information to and from its servers;
"Content" means electronically recorded audio and visual material such as may be
protected by relevant intellectual property legislation;
"Encoding" means the digitising of video and audio content into a form that can
be delivered and viewed across IP networks;
"Fees" means all fees payable by the Customer to Narrowstep for the Products,
Licences, Services and Supplemental Services;
"Initial Term" means the minimum term for which Narrowstep will provide the
Services;
"Licence" means the granting of permission for use of the Products by the
Customer for an agreed Fee;
"Licence Terms" shall mean such terms and restrictions that are placed on the
use of the Products;
"Narrowstep Technology" or "Technology" means Narrowstep's proprietary
technology including Narrowstep Services software tools, hardware, designs,
algorithms, software (in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both printed and
electronic), network designs, know-how, trade secrets and any related
intellectual property rights throughout the world (whether owned by Narrowstep
or licensed to Narrowstep from a third party) and also including any
derivatives, improvements, enhancements
or extensions of Narrowstep Technology conceived, reduced to practice or
developed during the term of this Agreement by either party;
"Narrowstep Products" or "Products" means software and hardware based on
Narrowstep Technology. These shall include 'TV Station in a Box',
'Channelserver', 'Mediaserver', 'Adserver', 'Mobileserver', 'Storeserver' and
'Chatserver' as well as the Narrowstep Player and other such items as may be, or
have been, listed on Narrowstep's web site;
"Order Form" or shall mean the order form which has been signed by the Customer
specifying therein inter alia the Services and Supplemental Services to be
provided by Narrowstep which order form is to be read in conjunction with the
terms herein;
"Professional Services" means any professional, consulting or support services
provided by Narrowstep to the Customer including but without limitation those
services detailed on Narrowstep's web site at xxxx://xxx.xxxxxxxxxx.xxx;
"Renewal Term" means any term following the Initial Term;
"Rules and Regulations" means the rules and regulations of Narrowstep relating
to the Customer's use of the Services and Supplemental Services which are set
out in Narrowstep's acceptable use policy and which can be found at
xxx.xxxxxxxxxx.xxx/xxxxx/xxxxx;
"Services" means the specific services provided by Narrowstep to the Customer as
set out in the Order Form;
"Streams" shall mean video and audio clips encoded for delivery over IP
networks;
"Supplemental Fees" means all fees payable by the Customer to Narrowstep in
respect of Licence extensions and additional Professional Services as may be
required by the Customer, or recommended by Narrowstep and accepted by the
Customer and such Fees shall be in accordance with Narrowstep's then current
prices and pricing policy;
"Supplemental Services" means the provision of Licence extensions and additional
Professional Services not specified at the commencement of this Agreement;
"Third Party Vendors" means organisation from which Narrowstep has licenced or
sub-licenced such rights and technologies as might be required for the operation
of its Products and Services.
2. ACCEPTANCE AND DELIVERY
2.1 This Agreement shall be entered into by the parties once the Customer
has completed and signed the Order Form together with a copy of this
Agreement and returns the same to Narrowstep and both the Order Form and
the Agreement is countersigned and accepted by an authorised
representative of Narrowstep contingent only upon credit approval of the
Customer being obtained by Narrowstep;
2.2 Communication of this acceptance will be given to the Customer by
Narrowstep generating an e-mail to the Customer which includes the
information required to allow the Customer to send and receive
information to and from its servers.
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3. FEES
3.1 The Customer hereby authorises Narrowstep to perform the Services and
deliver Licences for the Products throughout both the Initial Term and
any Renewal Term and agrees to take and pay the Fees for the same;
3.2 The Customer hereby agrees to pay the Supplemental Fees for the
Supplemental Services throughout both the Initial Term and any Renewal
Term.
4. TERM
4.1 The Initial Term of this Agreement will commence on the Commencement
Date;
4.2 Upon the expiration of the Initial Term the terms and conditions of this
Agreement shall be automatically extended until either party gives to
the other not less than 90 days notice of termination in writing or
Narrowstep otherwise terminates the agreement in accordance with the
terms herein;
4.3 Termination by the Customer of any particular service will not affect
the Customer's obligation to pay Fees for the remaining Services.
5. PAYMENT TERMS
5.1 On the Commencement Date Narrowstep shall issue to the Customer an
invoice in respect of the Fees as specified in the Order Form.
5.2 Narrowstep shall issue to the Customer an invoice in respect of all
Supplemental Fees either forthwith upon the Supplemental Services being
provided or at the end of the month in which the Supplemental Services
are provided.
5.3 All payments will be made by the Customer to Narrowstep in (pound)stg,
$dollars or Euros at the (pound)stg exchange rate prevailing at the date
of the invoice
5.4 Narrowstep reserves the right to vary the fees set out in the Order Form
and/or amend its payment terms or billing practices as set out herein by
giving the Customer not less than 30 days prior written notice to expire
on the last day of the month following the giving of such notice
5.5 Payment of all invoices issued by Narrowstep to the Customer shall
become due forthwith upon receipt of the same by the Customer. If a sum
due to Narrowstep remains unpaid for a period of 28 days after the
invoice date Narrowstep shall be entitled to charge interest on such sum
at the rate of 3% per annum above Bank of England base lending rate from
the date of the invoice until the date of actual payment and to withhold
any or all of the Services or Supplemental Services until such time as
payment of the said sum and any interest thereon and any sums clue under
clause 5.7 below is received by Narrowstep
5.7 The Customer hereby agrees to indemnify Narrowstep in respect of all
costs charges expenses and professional fees incurred by Narrowstep in
exercising any of its rights under this Agreement in respect of any
default or other breach by the Customer
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5.8 Where applicable Narrowstep will charge to the Customer such taxes as
may be applicable at the prevailing rate and all other relevant purchase
tax on the Fees and Supplemental Fees.
6. OWNERSHIP OF INTELLECTUAL PROPERTY AND GRANT OF LICENCE
6.1 Narrowstep hereby grants a single Licence for the use of its Products as
specified in the Order Form;
6.2 The Customer undertakes to indemnify Narrowstep against any claims
relating to infringements relating to the Licence. This includes, but is
not limited to, material protected by copyright, trademark, trade
secret, or other intellectual property rights;
6.3 The parties hereby agree that this Agreement shall not transfer from
Narrowstep to the Customer any Narrowstep Technology and all rights
title and interest in and to Narrowstep Technology will remain solely
with Narrowstep. The Customer agrees that it will not directly or
indirectly reverse engineer, decompile, disassemble or otherwise attempt
to derive source code or other trade secrets from Narrowstep and/or its
Third Party Vendors (as herein defined);
6.4 Narrowstep hereby grants to the Customer for the Initial Term as defined
in the Order Form, and for however long this Agreement shall continue
thereafter, to edit modify, adapt, translate, exhibit, publish,
transmit, participate in the transfer of, reproduce, create, derivative
works from, distribute, perform, display and otherwise use the Products
for the purposes of rendering and operating the Services and
Supplemental Services to the Customer under this Agreement.
7. WARRANTIES
7.1 Narrowstep shall at al times provide the Products and Services with due
diligence and professional standards to the best of its endeavours.
7.2 In the event that Narrowstep fails to provide the Service in accordance
with the terms of clause 7.1, Narrowstep will credit the Customer that
part of the Fees. This credit shall not be applicable to any part of the
Fees relating to Encoding and Professional Services, nor shall it be
applicable in the event that the failure to provide a server is as a
result of factors outside Narrowstep's reasonable control any actions or
failures of the Customer or any third party or as a result of the
Customer's equipment applications or facilities;
7.3 Each of the warranties referred to in clauses 7.1 and 7.2 above shall be
null and void if the Customer fails to follow Narrowstep's Rules and
Regulations and other policies or otherwise breaches the Agreement in
any way.
8. DISCLAIMER
8.1 The Parties hereby agree that Narrowstep does not monitor or exercise
control over the content of the information transmitted over its
facilities. Use of the Services or any information that may be obtained
from the Services is specifically at the Customer's own
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risk. Except as provided for in clauses 7.1 and 7.2, and save as
provided for by statute, Narrowstep does not give to the Customer any
other express and/or implied warranties including, but not limited to,
warranties relating to satisfactory quality fitness for a particular
purpose or infringement of title warranties arising from a course of
dealing usage or trade practice, or that the Services will be
uninterrupted error free or completely secure.
8.2 The Parties hereby further agree that Narrowstep does not and cannot
control the flow of information to or from Narrowstep's own network and
other portions of the Internet. Such flow depends on the performance of
Internet services provided or controlled by third parties outside the
control of Narrowstep whose actions or failures may impair or disrupt
the Customer's connections to the Internet or parts thereof.
8.3 The Customer agrees that the disclaimers in clauses 8.1 and 8.2 are fair
and reasonable and accepts to be bound by the same.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer represents and warrants to Narrowstep that where applicable
he or she is at least 18 years of age and has the necessary authority to
enter into this Agreement and carry out the various obligations and use
of the Products and Services required by the Customer hereunder;
9.2 The Customer further warrants that it will not violate any applicable
laws regulations or cause a breach of any agreements between Narrowstep
and any third parties or unreasonably interfere with other Narrowstep
customers' use of Narrowstep services. The Customer agrees that it will
use the Products and Services only for lawful purposes and in accordance
with the terms of this Agreement.
9.3 The Customer agrees that at all times it will comply with the Acceptable
Use Policy which shall be published by Narrowstep from time to time.
Narrowstep may change its Acceptable Use Policy upon giving 15 days'
notice of such change to the Customer by posting any amendments and
alterations to the existing Acceptable Use Policy at the Narrowstep Site
XXX.XXXXXXXXXX.XXX.
The Customer may request a current copy of the Acceptable Use Policy by
sending or faxing such a request to Narrowstep. Prior to entering into
this Agreement the Customer acknowledges that it has read understands
and agrees to be bound by the current version of the Acceptable Use
Policy. The Customer acknowledges that the Acceptable Use Policy contain
certain restrictions on its and its users' online conduct (including
prohibitions against unsolicited commercial e-mail). The Customer
further acknowledges that Narrowstep exercises no control over the
content of the information passing through the Customer's Site(s) and
that it is the sole responsibility of the Customer to ensure that the
information that it and its users transmit and receive complies with all
applicable laws and regulations and the Acceptable Use Policy.
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10. LIMITATION OF LIABILITY
10.1 Narrowstep shall have no responsibility for and shall accept no
liability in respect of the selection, use and suitability of the
Services by the Customer which shall be at the Customer's sole
discretion;
10.2 Narrowstep shall not be liable for any loss of data resulting from
delays corruption of data non-deliveries, mis-deliveries, or service
interruptions. Neither Narrowstep nor its Network Services Supplier
shall be liable for any unauthorised access to Narrowstep's or the
Customer's transmission facilities or premise equipment or for any
unauthorised access to or alteration theft or destruction of a
Customer's data files programmes, procedures or information through
accident, fraudulent means or devices or any other method, provided that
such damage does not occur as a result of Narrowstep's or its Network
Service Suppliers' default or negligence;
10.3 In no circumstances shall Narrowstep be liable in contract tort
(including negligence or breach of statutory duty) or otherwise
howsoever caused for::
10.3.1 any increased costs or expenses;
10.3.2 any loss of profit business contracts revenues or anticipated
savings or ;
10.3.3 any special indirect or consequential damage of any nature
whatsoever arising directly or indirectly out of the provision by
Narrowstep of the Services or Professional Services or of any error or
defect therein or of the performance, non-performance, or delayed
performance by Narrowstep of this Agreement.
11. THIRD PARTIES
11.1 Narrowstep may provide to the Customer access to other third party
software and/or services ("Third Party Products") through re-seller
relationships that Narrowstep has established with such parties,
including without limitation, Microsoft Corporation, Real Networks,
Clipstream and Apple Inc ("Third Party Vendors"). Unless otherwise
notified, the Customer understands that product support for Third Party
Products is provided by the Third Party Vendor and not by Narrowstep
unless otherwise specified;
11.2 Narrowstep makes no representations and gives no warranties express or
implied regarding any Third Party Products. The Customer expressly
acknowledges and agrees that the use of Third Party Products is at the
Customer's sole risk and the terms of Narrowstep's disclaimer as set out
in clauses 8.1 and 8.2 above shall specifically apply to all Third Party
Products and Third Party Vendors;
11.3 The Customer shall be fully liable to Third Party Vendors and Narrowstep
with regard to any improper use of Third Party Products by the Customer
or violation of licence agreements and or end user subscriber agreements
entered into between the Customer and any Third Party Vendor.
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12. CUSTOMER'S INDEMNITY
12.1 The Customer agrees to indemnify and hold harmless Narrowstep and all
individuals or entities controlling controlled by or under common
control with Narrowstep and their respective officers, directors,
professional advisers, agents and employees against any losses costs
expenses claims damages liabilities penalties actions proceedings or
judgments which they may become subject to relating to or arising from:
12.1.1 the infringement or misappropriation or alleged infringement or
misappropriation of any copyright trade secret patent trademark or other
proprietory right related to any hardware or software utilised by the
Customer or otherwise in connection with any of the Products, Services
or Supplemental Services;
12.1.2 any breach or violation of or failure to comply with this
Agreement or the Rules and Regulations or any other policies of
Narrowstep of which the Customer has been given notice;
12.1.3 any violation of any applicable law rule or regulation;
12.1.4 any third party claims related to any content provided by the
Customer or customers or clients of the Customer.
13. TERMINATION
13.1 At the end of the Initial Term either party to this Agreement may
terminate the agreement without cause by giving to the other not less
than 90 days' notice in writing to expire at the end of that period
whereupon all Fees and Supplemental Fees due by the Customer up to and
including the date of termination will become due and payable forthwith
by the Customer to Narrowstep;
13.2 Either party may by notice in writing immediately terminate this
Agreement if the other shall have deemed to:
13.2.1 have breach this Agreement, and in the case of a breach capable
of being remedied, shall not have remedied the same within 7 days of
receipt of a notice from the other party identifying such breach and
requiring its remedy
13.2.2 be unable to pay its debts or enters into compulsory or
voluntary liquidation or compounds with or convenes a meeting of its
creditors or has a receiver or manager or an administrator appointed, or
ceases for any reason to carry on business or takes or suffers any
similar action which may render the party unable to pay its debts.
13.3 Termination of this Agreement for whatever reason shall be without
prejudice to any rights or obligations which have accrued prior to
termination.
13.4 In the event that this Agreement is terminated by Narrowstep pursuant to
clause 13.2 above then Narrowstep shall have no obligation to provide
the further Services or Supplemental Services to the Customer.
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14. FORCE MAJEURE
14.1 Narrowstep shall not be deemed to be in default of any provision of this
Agreement or be liable for any delay failure of performance or
interruption of the provision of the Services or Supplemental Services
to the Customer resulting directly or indirectly from any weather
conditions, natural disasters or other acts of God, action of any
government or military authority, failure caused by hacking or a
telecommunications provider or other Internet provider, or other force
or occurrence beyond Narrowstep's reasonable control, including without
limitation mechanical electronic communications or third party supplier
failure.
15. RELATIONSHIP OF PARTIES
15.1 None of the provisions of this Agreement shall be deemed to constitute a
partnership between the parties and neither party shall be responsible
for any act or omission of the other or have the right or authority to
bind the other in any way.
15.2 Nothing in this Agreement shall confer any rights on any person pursuant
to the Contracts (Rights of Third Parties) Xxx 0000.
16. GOVERNING LAW
16.1 This Agreement shall be governed by and construed in accordance with
English law.
16.2 Each of the parties to this Agreement irrevocably submits for all
purposes in connection with this Agreement to the exclusive jurisdiction
of the Courts of England.
17. DISPUTE RESOLUTION
17.1 The Parties will attempt in good faith to resolve any dispute or claim
arising out of or relating to this Agreement promptly through
negotiations between their representatives.
17.2 If the matter is not resolved through negotiation the parties will
attempt in good faith to resolve the dispute or claim through an
Alternative Dispute Resolution ("ADR") procedure.
17.3 The performance of obligations under the Agreement shall not cease or be
delayed by the application of an ADR procedure pursuant to clause 17.2
above.
17.4 If the matter has not been resolved by an ADR procedure within 2 months
of the initiation of such procedure or if either Party will not
participate in an ADR procedure the dispute shall be referred to the
Courts of England in accordance with clause 16.2 above.
21. WAIVER
21.1 The failure of either party to exercise any right or remedy shall not
constitute a waiver of that right or remedy.
21.2 No waiver shall be effective unless it is communicated to the other
party in writing.
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21.3 A waiver of any right or remedy arising from a breach of contract shall
not constitute a waiver of any right or remedy arising from any other
breach of the Agreement.
22. NON-SOLICITATION
22.1 The Customer agrees that throughout the duration of this Agreement and
for a period of 1 calendar year after its termination it will not and
will further assure that its affiliates do not directly or indirectly
solicit or attempt to solicit for employment any persons employed by
Narrowstep or contracted by Narrowstep to provide Services or
Supplemental Services to the Customer.
Signed on behalf of Mobestar:
Name: /s/ Xxxxx Xxxxxxxx
Position: CEO
Date: 18th February 2004
Signed on behalf of Narrowstep:
Name: /s/ Iolo Xxxxx
Position: CEO
Date: 25th February 0000
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XXXXXXXXXX ORDER FORM
00 Xxx Xxxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Tel x00(0)000 000 0000
Order Confirmation
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Client Mobestar
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Phone 07799 894 073
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Name Xxxxx Xxxxxxxx
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Address 00 Xxx Xxxxxxxxx Xx, Xxxxxx X0X 0XX
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Initial Term 36 months
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Client Purchase Order or Reference
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Our reference MOB020401
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Required completion 31st March 2004
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FEES UNIT VALUE QTY NET VALUE
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Development of Mobestar platform as described in attached specification
PAYABLE
30% upon appointment
30% upon delivery of Functional Specification
40% upon product/service delivery 100,000 1 $100,000
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LICENCES
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Global, exclusive for mobile gaming, included development cost
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ORDER NET TOTAL $100,000.00
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VAT @17.5% $17,500.00
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ORDER TOTAL $117,500.00
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SIGNED BY CUSTOMER: /s/ Xxxxx Xxxxxxxx DATE: 18/02/04
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SIGNED BY NARROWSTEP: /s/ Iolo Xxxxx DATE: 25/02/04
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Co Reg No 04412126 Co Reg Address 0 Xxxxxxxxxx Xxxx Xx, Xxxxxx, X0X
0XX
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