SERVICES AGREEMENT
EXHIBIT 10.20
This SERVICES AGREEMENT (this “Agreement”) is made and entered into this
10th day of May 2007, by and between DiscLive, Inc., a Delaware corporation (together
with its successors, “DiscLive”), and HDNet LLC, a Delaware limited liability company
(together with its successors, “HDNet”).
RECITALS
WHEREAS, HDNet has requested that Xxxxxx Xxxx, an employee of DiscLive (“Hill”),
render certain services, including, among others, content acquisition and sales (collectively, the
“Services”), to HDNet; and
WHEREAS, DiscLive desires to make available Hill to HDNet to provide the Services because of
certain potential benefits that may be realized by DiscLive, which are in addition to the
remuneration provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the mutual covenants and promises
herein contained and such other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the execution and delivery hereof, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. Retention. HDNet hereby acknowledges that it has retained Hill to, and DiscLive
hereby acknowledges that Hill will, provide the Services to HDNet during the Term (hereinafter
defined).
2. Term. The initial term (the “Initial Term”) of this Agreement shall
continue until December 31, 2007. Following the Initial Term, this Agreement shall remain in
effect from month to month until one party gives written notice to the other party, at least seven
(7) days prior to the expiration of any monthly extension of the Initial Term. The Initial Term,
as so extended by operation of this Section 2, shall be referred to herein as the
“Term.”
3. Compensation. As compensation for the services provided to HDNet by Hill under
this Agreement, HDNet hereby agrees to pay $3,950 per month (the “Monthly Fee”), prorated
on a daily basis for any partial month, during the Term to DiscLive. The Monthly Fee shall be due
and payable on the last day of each calendar month (each a “Payment Date”), commencing with
the first Payment Date following the date first above written.
4. Reimbursement of Expenses. In addition to the Monthly Payment pursuant to
Section 3, HDNet hereby agrees to pay DiscLive all Reimbursable Expenses (hereinafter
defined). For purposes of this Agreement, “Reimbursable Expenses” shall mean all reasonable
disbursements and out-of-pocket expenses, including, without limitation, costs of travel, postage,
deliveries and communications, but excluding allocated overhead, incurred by Hill or DiscLive for
the account of HDNet or in connection with the performance by Hill of the Services contemplated in
this Agreement. Upon presentment by Hill or DiscLive of the supporting documentation of the
Reimbursable Expense reasonably requested by HDNet, HDNet shall pay the Reimbursable Expense to
DiscLive.
5. Termination of this Agreement. Notwithstanding anything herein to the contrary,
this Agreement may be terminated by either party for any or no reason whatsoever during the Initial
Term upon thirty (30) days prior written notice.
6. Indemnification. HDNet shall indemnify and hold harmless each of DiscLive, its
affiliates and their respective directors, officers, stockholders, partners, managers, members,
employees, agents, representatives and each person who controls DiscLive or its affiliates within
the meaning of the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended (collectively, “Indemnified Persons,” and, individually, an “Indemnified
Person”), from and against any and all claims, liabilities, losses, damages and expenses
incurred by an Indemnified Person (including, without limitation, those arising out of an
Indemnified Person’s negligence and reasonable fees and disbursements of the respective Indemnified
Person’s counsel) that (a) are related to, or arise out of, actions taken, or omitted to be taken,
by Hill with HDNet’s consent, in conformity with HDNet’s instructions or HDNet’s actions or
omissions or (b) are otherwise related to, or arise out of, the services rendered by Hill
hereunder, and will reimburse each Indemnified Person for all costs and expenses, including,
without limitation, fees and disbursements of any Indemnified Person’s counsel, as they are
incurred, in connection with investigating, preparing for, defending or appealing any action or
formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection
with any pending or threatened litigation, caused by, arising out of or in connection with the
performance of the Services by Hill pursuant to this Agreement, whether or not any Indemnified
Person is named as a party thereto and whether or not any liability results therefrom. HDNet will
not, however, be responsible to any Indemnified Person for any claims, liabilities, losses, damages
or expenses pursuant to clause (b) of the immediately preceding sentence that have resulted
primarily from Hill’s gross negligence or willful misconduct. HDNet also hereby agrees that no
Indemnified Person shall have any liability to HDNet for, or in connection with, this Agreement,
except for any such liability for claims, liabilities, losses, damages or expenses incurred by
HDNet that have resulted primarily from such Indemnified Person’s gross negligence or willful
misconduct. HDNet further hereby agrees that it will not, without the prior written consent of
DiscLive, settle or compromise, or consent to the entry of any judgment in, any pending or
threatened claim, action, suit, inquiry or proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is an actual or potential party to such
claim, action, suit, inquiry or proceeding), unless such settlement, compromise or consent includes
an unconditional release of DiscLive and each other Indemnified Person hereunder from all liability
arising out of such claim, action, suit, inquiry or proceeding. HDNET HEREBY AGREES AND
ACKNOWLEDGES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO ANY CLAIMS, LIABILITIES, LOSSES,
DAMAGES OR EXPENSES THAT HAVE RESULTED FROM, OR ARE ALLEGED TO HAVE RESULTED FROM, THE ACTIVE OR
PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF HILL OR ANY OTHER INDEMNIFIED
PERSON.
The foregoing right to indemnity shall be in addition to any rights that DiscLive or any other
Indemnified Person may have at common law or otherwise and shall remain in full force and effect
following the completion or any termination of this Agreement.
7. Confidential Information. In connection with the performance of the services
hereunder, Hill agrees not to divulge any confidential information, secret processes or trade
secrets disclosed by HDNet or any of its subsidiaries to him solely in his capacity hereunder,
unless information, secret processes or trade secrets are publicly available or otherwise available
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to Hill without restriction or breach of any confidentiality agreement or unless required by
any governmental authority or in response to any valid legal process.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of
the parties in respect of the subject matter hereof and supersedes all prior understandings,
agreements or representations by or among the parties, written or oral, to the extent they relate
in any way to the subject matter hereof.
(b) Successors and Assigns. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, inure to the benefit of and are
enforceable by the parties and their respective successors and permitted assigns.
(c) Notices. All notices, requests and other communications provided for, or permitted to be
given, under this Agreement must be in writing and shall be given by personal delivery, by
certified or registered United States mail (postage prepaid, return receipt requested), by a
nationally recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a notice given in
accordance with the provisions hereof):
If to DiscLive:
DiscLive, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
If to HDNet:
HDNet LLC
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx
With a copy to (which shall not constitute notice):
Xxxxxx X. Xxxx, Esq.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
All notices, requests or other communications will be effective, and deemed given, only as follows:
(i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or
registered mail, on the fifth (5th) business day after being deposited in the United
States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of
delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the
transmitter’s confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m.
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(in the recipient’s time zone) on a business day, or is received on a day that is not a business
day, then such notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in any other manner,
including by electronic mail, will not be effective.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PRINCIPLES.
(e) Submission to Jurisdiction; Waiver of Jury Trial.
(i) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement shall
only be brought in any federal court located in Dallas County, Texas or any Texas state court
located in Dallas County, Texas, and each party consents to the exclusive jurisdiction and venue of
such courts (and of the appropriate appellate courts therefrom) in any such action, suit or
proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any
such court or that any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, service of process on such party as provided in Section 8(c) shall
be deemed effective service of process on such party.
(ii) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR
RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE,
SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON, OR ARISING
OUT OF, THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING
TO THE MATTERS CONTEMPLATED HEREIN. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL
ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND CONTEMPLATED
HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HEREBY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE
EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY
UNDERSTANDS, AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED, THE IMPLICATIONS OF THIS WAIVER, (iii)
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION
8(e).
(f) Headings. The section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement.
(g) Amendments; Assignment. This Agreement may be amended only by a written instrument signed
by all the parties hereto. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned without the prior written consent of all parties hereto;
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provided, however, either party hereto shall be entitled to assign this Agreement or any of its
rights, interests or obligations hereunder, either in whole or in part, to any one or more of its
affiliates without the prior written consent of the other.
(h) Extensions; Waivers. Any party may, for itself only, (i) extend the time for the
performance of any of the obligations of any other party under this Agreement, (ii) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto or (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
(i) Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions hereof; provided that if any provision of this Agreement, as applied to any
party or to any circumstance, is judicially determined not to be enforceable in accordance with its
terms, the parties agree that the court judicially making such determination may modify the
provision in a manner consistent with its objectives such that it is enforceable, and/or to delete
specific words or phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
(j) Counterparts; Effectiveness. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties. For purposes of
determining whether a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature on a paper document or a
facsimile copy of such a handwritten original signature shall constitute a signature,
notwithstanding any law relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
(k) Construction. This Agreement has been freely and fairly negotiated among the parties. If
an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if
drafted jointly by the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provision of this Agreement. Any reference
to any law will be deemed to refer to such law as in effect on the date hereof and all rules and
regulations promulgated thereunder, unless the context requires otherwise. The words “include,”
“includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in
masculine, feminine and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless the context
otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and
words of similar import refer to this Agreement as a whole and not to any particular subdivision,
unless expressly so limited. The parties intend that each representation, warranty and covenant
contained herein will have independent significance. If any party has breached any covenant
contained herein in any respect, the fact that there exists
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another covenant relating to the same subject matter (regardless of the relative levels of
specificity) that the party has not breached will not detract from or mitigate the fact that the
party is in breach of the first covenant.
(l) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTIES
HERETO SHALL BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY
OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT
THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLIVE’S AND HDNET’S AGGREGATE LIABILITY FOR
DIRECT DAMAGES UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE AMOUNTS RECEIVED AND
PAID, RESPECTIVELY, HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME THAT THE CAUSE OF
ACTION AROSE.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| DISCLIVE: | ||||||
| DiscLive, Inc., a Delaware corporation |
||||||
| By: | /s/ XXXXXX XXXX | |||||
| Name: | Xxxxxx Xxxx | |||||
| Title: | Chief Executive Officer | |||||
| HDNET: | ||||||
| HDNet LLC, a Delaware limited liability company |
||||||
| By: | /s/ XXXXXX XXXXXX | |||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | Chief Financial Officer | |||||
AGREED AND ACCEPTED, solely with respect to Sections 1 and 7 hereof:
/s/ XXXXXX XXXX
|
||||||
Date: May 10, 2007 |
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