Exhibit (10) - Netopia, Inc. License Agreement
LICENSE AGREEMENT
This License Agreement ("Agreement) is made and entered into this 21st day of
June, 2000 ("Effective Date"), by and between Netopia, Inc., a Delaware
corporation, with offices at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000
("Netopia"), and Tengtu International Corporation, a Delaware corporation, with
offices at Xxxxx 0000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
("Licensee").
The parties agree as follows:
1. LICENSE GRANT
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Netopia grants to Licensee, and Licensee accepts from Netopia, a
fee-bearing nonexclusive license right to promote and otherwise market Netopia's
web site product and service (such product and service are referred to herein as
(the "Service") to Licensee's customers, under the terms of Netopia's end user
license and service agreement. Netopia's web site product and service is the
then current web site service with a URL xxxx://xxxx.xxxxxxx.xxx, including any
ancillary or related software, products, services, information or technology as
the same is made available by Netopia in Netopia's reasonable discretion.
When Licensee's customers agree to subscribe to and pay Netopia's
on-going monthly fees for the Service, or any part thereof, Netopia shall host
web sites under a Service name and using a domain name and URL configuration for
the web sites as agreed by the parties. Netopia's hosted web sites shall include
all vertical market content made available generally by Netopia. All rights not
expressly granted are reserved by Netopia and its licensors.
2. FEES AND PAYMENT
-------------------------
(a) Licensee agrees to pay Netopia a one time, non-refundable fee in
the amount of $125,000 with respect to the right to promote and market the
Service. Licensee agrees to pay this fee in three (3) payments as follows: (i)
$45,000 within forty-five (45) days after the Effective Date; (ii) $40,000
within ninety (90) days after the Effective Date; and the remaining $40,000
within one hundred twenty (120) days after the Effective Date.
(b) Except as expressly agreed otherwise by the parties in writing,
each party will bear all of its own expenses arising from its performance of its
obligations and exercise of its rights under this Agreement, including without
limitation, the costs of occupancy, facilities, hosting hardware, software, work
space, utilities, payroll, management, clerical, production services, supplies,
overhead, marketing and like expenses.
3. WARRANTY
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(a) Netopia warrants to Subscribers that for ninety (90) days following
the first use of the Service by a Subscriber, the Service will perform
substantially the functions described in the related documentation provided by
Netopia on its web site. Netopia does not warrant that the Service will meet any
Subscribers' specific requirement or that its operation will be uninterrupted or
error-free. Netopia expressly is not responsible for any problems, including any
problem which otherwise would be a breach of warranty, caused by (i) interaction
of the Service with non-Netopia software; or (ii) accident, abuse, or
misapplication.
(b) Netopia expressly makes no warranties with respect to the technical
equipment and infrastructure (including but not limited to server and storage
hardware, network connectivity and access to the internet via high speed access)
required to host web sites and e-stores for Licensee's customers, and for
operations support.
4. INDEMNIFICATION FOR INFRINGEMENT
-----------------------------------------
(a) Netopia represents and warrants that: (i) the Service does not
infringe any patent or copyright or violate the trade secret or other
proprietary rights of any third party; (ii) Netopia or Netopia's licensors own
all patents, copyright trade secrets and other proprietary rights in and to the
Service; and (iii) Netopia possesses the legal right and authority to execute
and perform this Agreement.
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(b) Netopia agrees to indemnify, hold harmless, and defend Licensee
from and against any and all damage costs, and expenses, including reasonable
attorneys' fees and costs, incurred in connection with a claim of a third party
which, if true, would constitute a breach of the foregoing warranties
(hereinafter "Infringement Claims"), provided Licensee notifies Netopia promptly
in writing of the existence of an Infringement Claim and grants Netopia sole
control over its defense or settlement, and Licensee provides reasonable
assistance in the defense of the same.
(c) Following notice of an Infringement Claim, Netopia shall use
commercially reasonable efforts to procure for Licensee the right to continue to
market the allegedly infringing Service, or Netopia may replace or modify the
Service with a functionally comparable product or service to make it
non-infringing. In the event that Netopia does not or cannot comply with this
Section 4(c), Netopia shall refund to Licensee all fees paid, in which case this
Agreement and the license granted hereunder shall terminate immediately, and
Netopia shall have no further obligations to Licensee.
(d) Netopia shall have no liability for any Infringement Claim based on
combination of the Service with a non-Netopia service, program or data, if such
infringement Claim would have been avoided by the exclusive use of the Service.
(e) The provisions of this Section 4 state Netopia's entire liability
to Licensee and Subscribers with regard to Infringement Claims.
5. COPYRIGHT NOTICES; TRADEMARKS; SERVICE NAME
----------------------------------------------------
(a) Licensee shall market the Service under a name (or names) as agreed
by Netopia and Licensee. Licensee agrees to use the appropriate trademark symbol
(either (R) or "tm" in a superscript) and clearly indicate Netopia's ownership
of the Service (i.e. "Powered by Netopia") and its trademark(s) whenever the
Service name is first mentioned in any advertisement, brochure or in any other
manner in connection with the Service. Licensee shall not at any time use any
name or trademark confusingly similar to a Netopia trademark, trade name and/or
product name and agrees that its use of such Netopia trademarks, trade names
and/or product names shall not directly or indirectly create in Licensee any
right, title or interest therein. Licensee shall not use or display any Netopia
logo in its materials without Netopia's prior written permission. Licensee shall
not use or imitate the trade dress of Netopia's products. Licensee shall
undertake no action that will interfere with or diminish Netopia's right, title
and/or interest in Netopia's trademark(s), trade name(s), product name(s) or
service name(s). Upon Netopia's request, Licensee also shall provide Netopia
with samples of all Licensee literature that uses Service name(s).
(b) Licensee agrees that during the term of this Agreement, without
Netopia's prior written approval, it will not market the Service using the words
"room", planet", "dwp", "Opasia", "nvo", "mynvo", or the phrases (in their
entirety) "web center", "small business web center", "business web now" or
"netweb" as a descriptor for the Product.
6. TERM
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Licensee's right to market and promote the Service as set forth herein
shall continue in perpetuity until terminated by either party. At any time
following two (2) years after the Effective Date, Licensee may terminate this
Agreement for any reason or for its convenience upon sixty (60) days prior
written notice to Netopia. Netopia may terminate this Agreement upon sixty (60)
days prior written notice to Licensee in the event that Netopia ceases to make
the Service available generally to its customers.
7. DEFAULT AND OBLIGATIONS UPON TERMINATION
-------------------------------------------------
(a) This Agreement will terminate if either party materially breaches
this Agreement or any provision hereof, and the breach has not been cured within
thirty (30) days after notice to the breaching party. The rights and remedies of
the parties provided herein shall not be exclusive and are in additional to any
other rights and remedies provided by this Agreement.
(b) Upon termination of this Agreement for any reason, Licensee shall
cease immediately to market and promote the Service in any manner.
(c) Upon termination of this Agreement for any reason, any unpaid
amount of the fee set forth in Section 2(a) shall be immediately due and
payable.
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(d) All provisions of this Agreement that remain to be performed or by
their nature would be intended to continue to be applicable shall survive
termination or expiration of this Agreement.
8. LIMITATION OF LIABILITY AND REMEDY; DISCLAIMER OF
WARRANTIES
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(a) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, NEITHER PARTY NOR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL BE
LIABLE TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING
LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER ANY REMEDY
PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL
NETOPIA'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF
PAYMENTS, ACTUALLY PAID BY LICENSEE TO NETOPIA, REGARDLESS OF WHETHER A CLAIM IS
BROUGHT IN TORT, CONTRACT OR OTHERWISE.
(b) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NETOPIA HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH
REGARD TO THE SERVICE AND ANY HARDWARE AND RELATED PRODUCT AND SERVICES,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS OF THE SERVICE
FOR A PARTICULAR PURPOSE OR USE.
9. NOTICES
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All notices, authorizations and requests in connection with the Agreement shall
be deemed given on the day they are: (i) deposited on the United States mails,
postage prepaid, certified or registered, return receipt requested, (ii) sent by
air express courier, charges prepaid, and addressed to the addresses set forth
below, or (iii) sent by fascimile transmission, with confirmation of receipt.
Either party may change its address for notices by written notice to the other
party.
Licensee: Tengtu International Corporation
Suite 1450, 000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (416) 362) 4708
e-mail: xxxxxxxxxx@xxxxxx.xxx
Netopia: Netopia, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
e-mail: Xxxxxxx@xxxxxxx.xxx
10. GOVERNING LAW; ARBITRATION; ATTORNEYS' FEES
----------------------------------------------------
(a) The rights and obligations under this Agreement shall be governed
by the laws of the State of California including California conflicts of law
rules, and by United States law and
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international treaties governing copyrights. The application of this Agreement
of the Unites Nations Convention on Contracts for the International Sale of
Goods is hereby expressly excluded.
(b) Any dispute arising out of or relating to this Agreement shall be
referred for resolution by binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association. Any arbitration shall be
conducted by one arbitrator appointed pursuant to such rules, and shall be held
in San Francisco, California. The arbitrator shall be authorized to award
reasonable attorneys' fees and costs to the prevailing party in any arbitration.
The award of any arbitration shall be final and binding, and enforceable in any
court having jurisdiction over the party against which an award is sought to be
enforced.
11. SUPPORT; MARKETING OBLIGATIONS
---------------------------------------
(a) When Licensee's customers agree to subscribe to any pay Netopia's
on-going monthly fees for the Service, Netopia will be responsible for all
activities associated with hosting web sites for such Subscribers.
(b) Licensee agrees to provide specific content relating to the needs
of its vertical market specialty for use by Netopia in enhancing its vertical
market content packages. Licensee further agrees that Netopia may use such
specific content in any manner in Netopia's sole discretion without any
limitation or restriction, and that Netopia shall have no obligation to make any
payment to Licensee or related to the use of such specific content provided by
Licensee.
(c) Licensee agrees that on its web site and through other conventional
means, Licensee actively will market and promote the Service to its customers.
(d) With respect to Subscribers, Netopia will be responsible for all
activities associated with customer account sign-up, credit card billing and
collections, and template deployment. In addition, Netopia will provide its
standard support services directly to Subscribers by e-mail.
(e) Netopia will be responsible for providing and maintaining all
technical equipment and infrastructure (including but not limited to service and
storage hardware, network connectivity and access to the internet via high speed
access) required to host web sites and e-stores.
(f) Netopia will maintain all customer information relating to
Subscribers to the Service. Licensee and Netopia will have equal rights to use
customer database records.
(g) Promptly after execution of this Agreement and at such time as
agreed by the parties, the parties agree to issue a joint press release, as
approved by both parties, with respect to the transactions contemplated by this
Agreement. Except for such press release, Netopia has no marketing obligations
under this Agreement.
12. GENERAL
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(a) This Agreement may not be assigned or sublicensed in whole or in
part by either party without the prior written consent of the other party, which
consent shall not be withheld unreasonably, provided, however, that either party
may assign its rights and obligations hereunder without the other party's prior
written consent to a successor entity in connection with a merger or sale of
substantially all assets (a "Merger") provided that the successor agrees in
writing to perform all obligations of the assigning party. Notwithstanding the
foregoing, in the event of a Merger with an entity that is a direct competitor
of the other party, such party may terminate this Agreement effective on the
date the Merger is consummated upon prior written notice to the other party.
(b) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a written
agreement dated subsequent to the Effective Date and signed on behalf of
Licensee and Netopia by their respective duly authorized representatives.
(c) Each party agrees that the terms of this Agreement are confidential
and agrees not to disclose such terms to any third party other than its
attorneys and independent accountants, and as otherwise may be required by law
or regulation, without the other party's prior written approval.
(d) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, the remaining provisions shall remain in full force
and effect, and the provision shall be deemed amended to substitute a valid
provision so as to implement the intent of the parties.
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(e) No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(f) The section headings are intended for convenience only and shall
not be deemed to supersede or modify any provisions.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the Effective Date. All signed
copies of th is Agreement shall be deemed originals.
NETOPIA, INC. TENGTU INTERNATIONAL CORPORATION
By:------------------------ By:-----------------------------
Xxxx X. Xxxxxx Xxxx Xxxxxxxxx
President and CEO VP Business Development
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