THIRD AMENDED AND RESTATED MARKETING AGREEMENT
THIRD
AMENDED AND RESTATED MARKETING AGREEMENT
This
THIRD AMENDED AND RESTATED MARKETING AGREEMENT (the "Agreement") is entered
into
as of the 28th
day of
August, 2006 by and between SunnComm International, Inc., a Nevada corporation
with a principal place of business at 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("SunnComm") and MediaMax Technology Corporation, a Nevada
corporation with a principal place of business at 000 Xxxxx 00xx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 ("MM").
WHEREAS,
the parties hereto are parties to a Marketing Agreement regarding the subject
matter hereof dated February 2, 2004 (the "Original Agreement") and a First
Amended and Restated Exclusive Marketing Agreement regarding the subject matter
hereof dated June 11, 2005 (the "First Amendment") and a Second Amended and
Restated Exclusive Marketing Agreement regarding the subject matter hereof
dated
September 21, 2005 (the "Second Amendment");
WHEREAS,
the parties have agreed to amend and restate the Original Agreement, as amended
and restated by the First and Second Amendments, in its entirety as set forth
herein, provided that this Agreement shall become retroactively effective as
of
July 1, 2006;
WHEREAS,
SunnComm has created certain products known as MediaMax, MediaCloQ, MusicMail,
Perfect Placement, CDMX, IPT (InMOD Powered by TranzByte), OctiPod and
All«Play,
as
more fully described herein, which are proprietary to SunnComm;
WHEREAS,
in furtherance of the marketing of SunnComm's products, SunnComm desires
to engage MM to provide SunnComm with the marketing services described
herein,
and MM desires to provide such services to MM; and
WHEREAS,
the parties have executed an Agreement and Plan of Merger (the "Merger
Agreement") on June 11, 2005,
NOW,
THEREFORE, in consideration of the anticipated MM revenue associated with the
sale of SunnComm’s newest products and in consideration of their mutual promises
set forth below and other valuable consideration, the parties agree as
follows:
1.
Definitions. For purposes of this Agreement, the following terms shall have
the
meanings set forth below:
(a)
"Customers" shall mean those persons and entities who license one or
more
Products from SunnComm or MM.
(b)
"Products" shall mean the object code version of the products described
on
Schedule A to this Agreement and any other products which at any time and
from
time
to time after the date hereof SunnComm owns, develops or otherwise has
the
right
to license in the manner provided herein, with all documentation provided
with the products and any updates or enhancements to the products that
SunnComm
generally releases to its customers.
(c)
"Trademarks" shall mean the trademarks and service marks listed on Schedule
B to this Agreement and any other names, designations, trademarks, and
service
marks used from time to time by SunnComm in connection with the
Products.
(d)
Any
other capitalized terms used herein and not defined herein shall have
the
meanings assigned to them in the Merger Agreement.
2.
Effectiveness. This Agreement shall become effective as of July 1, 2006. The
terms, conditions, rights and obligations set forth in the Original Agreement,
as amended by the First and Second Amendments, shall be superseded by this
Agreement.
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3.
Appointment; Licenses.
3.1
Appointment. Subject to the terms and conditions of this Agreement, SunnComm
hereby appoints MM, and MM hereby accepts such appointment and agrees
to
act,
as the marketing representative of the Products throughout the
world.
3.2
Grant
and Term of License to MM. Subject to the terms and conditions of this
Agreement, SunnComm hereby grants to MM, and MM hereby accepts, the following
nontransferable licenses:
(a)
an
irrevocable worldwide license to promote and market the Products, including
any
and all modifications, corrections, improvements and enhancements of the
Products and any materials and documentation provided for use in connection
with
the Products for a term of five years after the effective date of this Agreement
(the date on which the entirety of this Agreement becomes effective
pursuant to Section 2 hereof); and
(b)
a
non-exclusive license to use the Products solely for the following purposes:
(i) demonstrating the operation and capabilities of the Products to prospective
Customers, and (ii) training MM's marketing and support personnel.
3.3
Covenants and Duties of MM.
(a)
Promotion of Products. MM will use its best efforts to promote and maximize
the licensing and use of the Products throughout the world. In furtherance
of, but without limiting the generality of the foregoing, MM agrees to:
(i)
diligently seek out prospective licensees for the Products;
(ii)
diligently conduct demonstrations of Products;
(iii)
assist SunnComm in conducting trade shows and sales promotional campaigns;
(iv)
assist SunnComm in assessing customer-requested modifications and improvements
to the Products;
(v)
assist SunnComm in the design, development and production of English language
advertising and marketing materials generally released by SunnComm relating
to
the Products;
(vi)
distribute advertising and marketing literature supplied by SunnComm
in accordance with Section 3.4(a) of this Agreement;
(vii)
in
all correspondence or other dealings relating to or concerned with
the
Products, clearly indicate that it is acting as marketing representative
and not as author or developer of the Products; and
(viii)
inform SunnComm promptly of any information received by MM which is
likely
to be of interest, use or benefit to SunnComm relating to marketing,
support or development of the Products.
(b)
Sales
Approach; Agreements with Customers. MM will typically be responsible for making
the initial presentation of Products to Customers. MM and SunnComm will
determine by mutual agreement when it is appropriate for SunnComm personnel
to
participate in sales opportunities. In no event shall MM purport to, or
represent itself as having the authority to, make commitments on behalf of
SunnComm.
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(c)
Other
Products. MM agrees that, during the term of this Agreement, it will not market,
distribute or recommend products that are competitive with the Products
("Competing Products") or work with any other company with respect to
Competing
Products.
(d)
Trial
Licenses. MM shall not provide trial or evaluation copies of the Products
to Customers or others without the prior written consent of SunnComm.
All
trial
or evaluation copies of the Products authorized by SunnComm shall be
provided
in accordance with the terms of this Agreement.
(e)
Adverse Comments. MM agrees that during the term of this Agreement and
thereafter,
MM shall not comment in a negative fashion about SunnComm or any of the
Products or services provided hereunder.
3.5
Covenants and Duties of SunnComm.
(a)
Provision of Marketing Materials. SunnComm will provide to MM, at no
cost
to
MM, copies of English language advertising and marketing materials generally
released by SunnComm relating to the Products ("Marketing Materials")
for
distribution and use by MM in accordance herewith. MM may make and distribute
a reasonable number of copies of the then-current versions of any Marketing
Materials delivered to MM by SunnComm, provided that MM shall not use
or
distribute any Marketing Materials identified as rescinded by SunnComm. MM
may
translate the Marketing Materials into any other language or languages as
necessary
to effectively market the Products.
(b)
Provision of Products. Upon execution of this Agreement, SunnComm shall
provide
to MM one copy of each of the Products for use in accordance with this
Agreement
and shall provide to MM one copy of all additional Products at the time
of
development.
(c)
New
Versions. SunnComm may from time to time and at its sole discretion release
a
new version (the "New Version") of any Product or Products, which new
version
shall supersede the prior version (a "Superseded Version"). In the event
that
SunnComm releases a New Version, SunnComm may cease to maintain or support
the
Superseded Version at any time after ninety (90) days following the release
of
the
New Version. Upon notice to MM by SunnComm of the availability of the New
Version,
MM may not market the Superseded Version without the prior written approval
of SunnComm.
(d)
Updates; New Products. SunnComm shall promptly provide MM with all updates,
corrections, enhancements, and new versions (each, a "New Version," which
supersedes a "Superseded Version") of the Products for purposes of exploitation
pursuant to the terms of this Agreement. In the event any Products become
part of a "bundle," are "displaced" by a similar product, are packaged
with
additional products such that such Product(s) are no longer offered as a
separate
product, are renamed, or are unbundled into separate products, such new
or
other
products shall automatically be deemed to be Products covered by this
Agreement.
In the event that SunnComm releases a New Version, SunnComm may cease
to
maintain or support the Superseded Version at any time after ninety (90) days
following
the release of the New Version. Upon notice to MM by SunnComm of the
availability
of the New Version, MM may not market the Superseded Version without
the prior written approval of SunnComm. All new products developed by
SunnComm
which are in any way related to the Products shall automatically be deemed
"Products" hereunder without any further action by either party
hereto.
(e)
Marketing Support. SunnComm will provide reasonable assistance to support
MM's marketing efforts. Without limiting the generality of the foregoing,
SunnComm will (i) attend sales calls and/or presentations with MM as
reasonably
requested by MM and agreed to by SunnComm in connection with the presentation
of Products; (ii) provide reasonable support and aid in any response
to a request for a proposal to which a response is prepared by MM involving
one or more Products; (iii) provide reasonable support and assistance
with
any
field trial of one or more Products; and (iv) keep MM reasonably informed
of the status of significant product enhancements or new
products.
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3.6
Installation, Training and Support. SunnComm shall be responsible for
installation
of all Products, training of the Customer, maintenance of Products and
systems used in connection with the products, and support for the Products.
SunnComm
shall deal directly with each Customer for purposes of providing and
supporting
the Products from and after the time a Customer Agreement is reached
with
each
such Customer.
3.7
Prices, Licensing Fees and Royalties.
(a)
Price. Each Customer Agreement shall provide for prices for Products as
determined
by SunnComm.
(b)
Licensing Fees and Royalties.
(i)
Initial License Fee. MM has previously paid to SunnComm an initial
license
fee in the amount of $2,030,000 pursuant to the Original Agreement.
(ii)
Amount of Royalty Payments. SunnComm shall pay royalties to MM in an amount
equal to 40% of the Gross Licensing Revenues, (determined in accordance with
Generally Accepted Accounting Principles consistently applied) realized on
any
and all sales or sublicenses of any Products or future developments thereto.
(iii)
Minimum Monthly Royalty. Effective July 1, 2006 MM shall not be required to
pay
a minimum monthly royalty to SunnComm. MM will pay SunnComm a monthly
administrative support fee of Twelve Thousand Dollars ($12,000).
(c)
Payment. Each Customer Agreement shall provide for payment by the Customer
to
SunnComm. SunnComm shall be responsible for collection of all fees from
Customers. SunnComm shall remit royalties due to MM monthly and reconcile with
MM on a quarterly basis, within thirty (30) days after the end of each calendar
quarter, with a detailed accounting of the calculation of the amounts
remitted.
3.8
Records, Right to Audit.
(a)
SunnComm Reports. SunnComm shall report to MM the following
information:
(i)
within thirty (30) days after the end of each calendar quarter,
a list of all Products licensed to Customers And the Gross Licensing
Revenues
received during the preceding quarter;
(ii)
on a
quarterly basis, a rolling forecast of orders for each Product;
and
(iii)
such other information relating to the marketing of the Products
as MM shall reasonably request from time to time.
(b)
Business Records; Right to Audit and Copy. During the term of this Agreement
and for a period of two (2) years thereafter, SunnComm shall maintain
accurate
records relating to its performance of its obligations under this Agreement
("Business Records"). During the later of five (5) years thereafter or
until
SunnComm's obligation to MM is paid in full, MM or its designee shall have
the
right, at its own expense and under reasonable conditions of time and place,
to
from
time to time audit the Business Records. In the event of judicial or
governmental
order or decree, SunnComm shall immediately make copies of the Business
Records available to MM either at SunnComm's principal place of business
or by forwarding such copies to MM, as instructed by MM.
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3.8
Assignment of Revenues. In consideration of the mutual covenants contained
herein, SunnComm hereby assigns to MM in accordance with Section 3.7
of
this
Agreement, in perpetuity, all revenues derived from the following:
(a)
that
certain Software Licensing Agreement dated January 12, 2004, by and
between SunnComm, as Licensor and Immediatek, Inc. as Licensee; and
(b)
other
Agreements or contracts for revenue which SunnComm has or may obtain through
the
direct or indirect efforts of MM, until its obligations under Section 3.7 (c)
are fulfilled.
4.
Previous Agreements Superseded. Upon effectiveness, this Agreement shall amend
and restate in its entirety the Exclusive Marketing Agreement dated February
2,
2004 between the parties hereto, which shall be superseded hereby. Upon
execution, this Agreement supersedes the First Amended and Restated Marketing
Agreement dated June 11, 2005. Upon execution, this Agreement supersedes the
Second Amended and Restated Marketing Agreement dated September 21,
2005.
5.
Confidentiality; Publicity.
5.1
Confidential Information. The confidentiality provisions of this Section
5
shall apply to all confidential and proprietary information disclosed
by
the
parties to each other orally or in writing, including information disclosed
prior to the date hereof, with respect to their respective businesses,
operations
and proprietary technologies ("Confidential Information"); provided,
however,
that for purposes of this Agreement, Confidential Information shall be
deemed
not to include information which at the time of disclosure or thereafter
(a)
is
generally available to the public (other than as a result of a disclosure
by
the
receiving party), (b) is available to the receiving party on a non-confidential
basis from a source other than the disclosing party, provided such
source is not and was not bound by a confidentiality agreement with the
disclosing
party or otherwise prohibited from transmitting such information to
the
receiving party by a contractual, legal or fiduciary obligation, (c) has
been
independently developed by the receiving party, as evidenced by its written
records,
or (d) which at the time of disclosure, and with respect to such disclosure
only, is required to be disclosed pursuant to a requirement of law.
5.2
Nondisclosure. Each party agrees, in addition to all the other protections
provided in this Agreement, to limit disclosure of competitively
sensitive
information to those members of its senior management team and those
Representatives
(as hereinafter defined) whose evaluation or knowledge of such information
is reasonably required with respect to the potential business transaction(s).
MM and SunnComm mutually agree to hold each other's Confidential Information
in strict confidence, to use it only for the purpose of pursuing a potential
business transaction between them, and not to disclose such Confidential
Information to any third party, except as provided herein, and to use
its
best efforts to protect such onfidential Information. MM and SunnComm
may
disclose each other's Confidential Information to their respective employees,
accountants, financial advisors, outside counsel and other representatives
with a bona fide need to know (collectively, "Representatives"), provided
that prior to disclosing Confidential Information or any information
described
in Section 5.3 below to a Representative, MM or SunnComm, as the case
may
be,
shall inform such Representative of the requirements of this Agreement
and
obtain from such Representative his or her agreement to be bound thereby.
5.3 Nondisclosure of Negotiations. Without the prior written consent of the other party, and subject to Section 5.4 below, MM and SunnComm will not, and will direct their respective Representatives not to, disclose to any third party (other than a Representative in accordance with Section 5.2 above or to potential investors in MM or SunnComm in connection with an offering of securities of such company) either the fact that any investigations, discussions or negotiations are taking place concerning a potential business transaction between them, or that each of them has requested or received information from the other party, or any of the terms, conditions or other facts with respect to any such potential business transaction, including the status thereof.
5
5.4
Required Disclosures. If MM or SunnComm or any of their respective Representatives
is required by law to disclose any of the other party's Confidential
Information or any of the terms, conditions or other facts with respect
to the potential business transaction between MM and SunnComm, the party
required
to make such disclosure will promptly notify the other party of such
requirement
prior to making the disclosure. MM and SunnComm will then confer and
use
reasonable, good faith efforts to agree on a form and terms of disclosure
reasonably
acceptable to both MM and SunnComm in light of the circumstances under
which the disclosure is required to be made, provided that if following
such
notice and conferring MM and SunnComm are unable to agree on a mutually
acceptable
form and terms of disclosure, then the party making the disclosure shall
have no liability to the other party to the extent such disclosure is
required
by law provided such party makes reasonable efforts to obtain an appropriate
protective order or other reliable assurance that confidential
treatment
will be accorded the other party's Confidential Information by the tribunal
requiring disclosure.
5.5
No
Representations. MM and SunnComm understand and acknowledge that neither
party is making any representations or warranties, express or implied,
as
to the
accuracy or completeness of the Confidential Information, and neither
MM,
SunnComm nor the officers, directors, employees, stockholders, owners,
affiliates
or agents of either will have any liability to the party receiving Confidential
Information resulting from such party's use of or reliance on the Confidential
Information. Only those representations or warranties that are made in
a
definitive agreement between MM and SunnComm when, as, and if it is executed,
and subject to such limitations and restrictions as may be specified
in
such
agreement, will have any legal effect.
5.6
Return or Destroy. Upon the written request of the other party, MM or
SunnComm,
as the case may be, shall return to the disclosing party, within ten
days,
all
Confidential Information and all copies thereof if in written or other
tangible
form. Where impractical to return copies, such copies shall be destroyed.
Within such ten-day period, if requested by the disclosing party, an
affidavit
of the receiving party, duly sworn by an officer of such party, shall
be
delivered to the disclosing party attesting to the return and destruction of
all
Confidential Information.
5.7
Publicity. Except to the extent required by applicable securities laws,
neither
MM nor SunnComm shall, except with the prior written consent of the other
party hereto, make any public announcement regarding the execution of this
Agreement
or make use of or mention of SunnComm or MM's or any of their respective
clients' name, logo, or other trademarks, including, but not limited
to,
in
any press release, marketing materials, website, or any other communications
written or otherwise.
6.
SunnComm Warranties. SunnComm represents and warrants to MM that:
(a)
Rights. SunnComm has the right to enter into this Agreement and grant
to
MM the
rights granted herein.
(b)
Non-Infringement. SunnComm warrants that the Products, as delivered by
SunnComm,
do not infringe on any copyright, patent, or trade secret, and that SunnComm
possesses full and sufficient right to license the use of the Products
under
this Agreement.
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(c)
Limited Warranty. For a period of thirty (30)
days from the date of delivery
to the Customer the Products will perform substantially in accordance
with
the
functional specifications set forth in the documentation provided with
such
Products. SunnComm's entire liability and the Customer's sole remedy under
this
warranty shall be to require SunnComm to use reasonable efforts to repair
or
replace the nonconforming Product. Any replacement Products will be warranted
for
the
remainder of the original warranty period or thirty (30) days from the
date
of
receipt by the Customer, whichever is longer. SunnComm shall have no
obligation
under this limited warranty unless a written claim for breach of warranty is
received by SunnComm within ten (14) days after the end of the applicable
warranty period.
7.
Limitation of Liability.
In
no
event shall SunnComm be liable for special, incidental, consequential or
punitive
damages, including, without limitation, any damages resulting from loss
of
data,
loss of profits, loss of business or loss of goodwill arising out of or
in
connection with this Agreement or the performance of the Products, whether
or
not
SunnComm or its licensors has been advised of the possibility of such
damages.
8.
Indemnification.
8.1
Indemnification by MM. MM shall indemnify and hold harmless SunnComm
and
its
officers, directors, employees and agents, from and against any and all
claims,
demands, liabilities, losses, costs and expenses (including reasonable
attorneys
fees and any fees of consulting professionals) of any kind whatsoever
levied
against or incurred by SunnComm, its officers, directors, employees or
agents,
arising directly or indirectly out of conduct of MM outside the scope of
this
Agreement or MM's failure to perform any of its obligations under this
Agreement.
8.2
Indemnification by SunnComm. SunnComm shall indemnify and hold harmless
MM
and
its officers, managers, members, employees and agents, from and against
any
and
all claims, demands, liabilities, losses, costs and expenses (including
reasonable
attorneys fees and any fees of consulting professionals) of any kind
whatsoever
levied against or incurred by MM, its officers, directors, employees
or
agents, arising directly or indirectly out of conduct of SunnComm outside the
scope
of
this Agreement or SunnComm's failure to perform any of its obligations
under
this Agreement.
8.3
Infringement Indemnity. Each party hereto shall immediately notify the
other
party of any infringements of rights in the Products which come to their
attention.
SunnComm shall defend or, at its option, settle, any claim, action or
proceeding
brought against MM that any Product infringes any United States patent,
copyright or trade secret, and shall indemnify MM against all damages
and
costs
finally awarded against MM in any such action or proceeding which results
from any such claim. SunnComm shall have no liability under this Section
8.3
unl
ess MM (a) promptly notifies SunnComm in writing of the claim, action or
proceeding,
(b) gives SunnComm full authority, information and assistance to defend
such claim, action or proceeding, and (c) gives SunnComm sole control of
the
defense and settlement of such claim, action or proceeding and all negotiations
relating thereto. MM retains the right to be present and represented
by counsel, at its own expense, at all times during the litigation and/or
other discussions related to the proceedings. If a Product or any part
thereof
becomes, or in SunnComm's opinion is likely to become, the subject of a
valid
claim of infringement or the like under any United States patent, copyright
or trade secret law, SunnComm shall have the right, at its option and
expense,
either to obtain a license permitting the continued use of the Product
or
such
part, to replace or modify it so that it becomes non-infringing, or to
terminate
the license granted herein to market the Product. SunnComm shall have
no
liability hereunder for any costs incurred or settlement entered into without
its
prior
written consent. SunnComm shall have no liability hereunder with respect
to any claim based upon (a) the combination of the Product with other
products
not furnished by SunnComm or (b) any addition or modification to the
Product
by any person or entity other than SunnComm.
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9.
Term
and Termination.
9.1
Term.
The term and effectiveness of this Agreement shall commence upon the effective
date of July 1, 2006 and shall continue for a term of five years after the
effective date of this Agreement (the date on which the entirety of this
Agreement becomes effective pursuant to Section 2 hereof), unless earlier
terminated in accordance with this Section 9 (the "Term") (and the parties
hereby acknowledge that the following termination provisions apply only from
and
after the date of effectiveness of this Agreement).
9.2
Termination for Default. Either party may, at its option, terminate this
Agreement effective upon written notice to the other party if the other party
has materially breached any provision of this Agreement and has failed to cure
the breach within thirty (30) days after receipt of written notice of the
breach. Notwithstanding the foregoing, if either party shall fail to fulfill
any
of its material obligations hereunder and the other party has previously sent
two notifications to such party pursuant to this Section 9.2 of a failure to
fulfill the same or similar obligations, the other party may, despite any remedy
or cure of such breaches in the past by the defaulting party, terminate this
Agreement by giving written notice of termination to the defaulting party,
effective immediately upon its sending.
9.3
Termination for Insolvency. SunnComm may terminate this Agreement upon
written
notice to MM if MM is liquidated or dissolved, or becomes insolvent, or
suffers
a
receiver, administrator or trustee to be appointed for it or any of its
undertakings or assets, or is deemed to be unable to pay its debts or shall
cease
to
carry on business, or makes a general assignment for the benefit of its
creditors
or institutes or has instituted against it any proceeding under any law
relating to bankruptcy or insolvency or the reorganization or relief of
debtors.
9.4
Effect of Termination. Upon termination of this Agreement for any reason,
MM shall immediately cease (i) marketing the Products, and (ii) using
the
Marketing Materials. The termination of this Agreement shall not affect or
terminate the SunnComm’s payment obligations as set forth in Section 3.7(c) of
this Agreement.
9.5
Effect of Termination on Customers. Any termination of this Agreement
shall
not
affect any Customer Agreement, as long as the Customer is not in breach
of
such Agreement.
9.6
Return of Promotional Material and Confidential Information. Within five
days
after expiration or termination of this Agreement, MM shall promptly
submit
a
current sales report to SunnComm a report for the period from the date of the
last such report through the date of expiration or termination, (ii) return
to
SunnComm all copies of any Products, Confidential Information and Marketing
Materials, (iii) to the extent any such Products, Confidential Information
or
Marketing Material can not be returned to SunnComm, erase or destroy all copies
of such Products, Confidential Information and Marketing materials under MM's
control, including all copies that are fixed or running in machines controlled
by MM, and (iv) have an authorized representative of MM certify in writing
to
SunnComm that MM has complied with the requirements of this
paragraph.
10.
Dispute Resolution.
10.1
Matters Covered. Any dispute, controversy or claim between the parties
arising
out of this Agreement, including any dispute as to the existence, construction,
validity, interpretation, enforceability or breach of this Agreement
(the "Dispute"), shall be exclusively and finally resolved as set forth
hereafter.
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10.2
Meeting; Mediation. In the event of any such Dispute, a meeting (the
"Meeting")
shall be held in Phoenix, Arizona promptly between the parties, attended
by individuals with decision-making authority regarding the Dispute to
attempt
in good faith to negotiate a resolution of the Dispute. If within thirty
(30)
days
after such Meeting the parties have not succeeded in resolving the Dispute,
then the parties shall initiate non-binding mediation proceedings and
submit
the Dispute to a mutually acceptable third-party mediator in Phoenix,
Arizona
who is acquainted with dispute resolution methods. The parties will participate
in good faith in the mediation and the mediation process. The mediation
process shall be completed within sixty (60) days after the date of the
Meeting.
10.3
Arbitration. If the Dispute is not resolved by mediation, then either
party
may
initiate a binding arbitration action conducted in accordance with the
Commercial
Arbitration Rules (the "Rules") of the American Arbitration Association
("AAA"). The parties shall attempt to select a single neutral arbitrator
to hear the Dispute. Such arbitrator need not be affiliated with the
AAA.
If
the parties fail to agree on a single neutral arbitrator within ten (10)
days
of
the filing of the demand for arbitration, then three neutral arbitrators
shall
be
appointed in accordance with the Rules. The arbitration award shall be
in
writing and shall specify the factual and legal basis for the award. The
arbitration
shall be conducted in Phoenix, Arizona, and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
Neither party shall be entitled to seek or recover punitive damages in
considering
or fixing any award under these proceedings.
10.4
Costs. The costs of the mediation and arbitration, including any mediator's
fees, AAA administration fee, the arbitrator's fee, and costs for the
use
of
facilities during the hearings, shall be borne equally by the parties.
Attorneys'
fees may be awarded to the prevailing or most prevailing party at the
discretion
of the arbitrator(s).
10.5
Other. Any dispute relating to or in connection with the enforceability
of these dispute resolution provisions shall be brought only in a court
in
Phoenix, Arizona for that purpose.
11.
General.
11.1
Independent Contractors. The relationship of SunnComm and MM shall be
that
of
independent contractors and not employees, agents, joint venturers or
partners.
MM shall be solely responsible to determine the method, details and means
of
performing its services hereunder. MM assumes full and sole responsibility
for the payment of all compensation and expenses of its employees and
for
all of their state and federal income tax, unemployment insurance, Social
Security and other applicable employee withholdings. MM shall not hold
itself
out as an agent of SunnComm nor shall MM contract or otherwise make any
commitments
to any third party on SunnComm's behalf without SunnComm's prior consent.
11.2
Entire Agreement. This Agreement (including any and all attachments hereto),
constitutes the entire understanding and agreement between the parties
with
respect to the subject matter hereof, supersedes all prior oral and written
communications
between the parties with respect to the subject matter hereof, and
may
be amended, modified or changed only in writing when signed by both parties.
9
11.3
Assignment. This Agreement may be assigned in
whole or in part by MM pursuant to any merger, consolidation or other
reorganization involving MM, with the
prior
express written consent of SunnComm, which will not be unreasonably withheld.
SunnComm may not assign or transfer this Agreement, in whole or in part, without
the prior express written consent of MM. This Agreement shall be binding upon,
and shall inure to the benefit of, SunnComm and MM and each of their legal
representatives, successors and permitted assigns.
11.4
Waiver; Consent. No term of this Agreement will be deemed waived, and no breach
of this Agreement excused, unless the waiver or consent is in writing signed
by
the party granting such waiver or consent.
11.5
Governing Law. This Agreement, its construction and enforcement shall be
governed by the laws of the State of Arizona, without giving effect to conflict
of law principles.
11.6
Severability. If any term or provision of this Agreement shall be found
by
a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable,
the same shall not affect the other provisions hereof or the whole
of
this Agreement, but such terms or provisions shall be deemed modified
to
the
extent necessary in the court's opinion to render such terms or provisions
enforceable, and the rights and obligations of the parties shall be construed
and enforced accordingly, preserving to the fullest permissible extent
the
intent and agreements of the parties herein set forth.
11.7
Force Majeure. Neither party shall be liable to the other for any failure
or delay in performance of its obligations hereunder on account of terrorist
attacks, strikes, shortages, riots, insurrections, fires, floods, storms,
explosions, earthquakes, acts of God, war, governmental action or any
other
cause which is beyond the reasonable control of such party.
11.8
Notices. All notices, requests and other communications permitted or
required
under this Agreement must be in writing, and shall deemed to have been
given
if
faxed (with transmission acknowledgement received), delivered personally
or by overnight courier service, sent by electronic mail or mailed by
certified
or registered mail (return receipt requested) as follows:
To
SunnComm: SunnComm International, Inc.
000
Xxxxx
00xx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000)000-0000
Email:
xxxxx@xxxxxxxx.xxx
Attention:
Mr. Xxxxx Xxxxxx
With
a
copy to: Wees Law Firm, L.L.C.
0000
X.
Xxxxxxx Xxx., Xxxxx 000
Xxxxxxx,
XX
00000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxx@xxx.xxx
Attention:
Xxxxx X. Xxxx
To
MM:
MediaMax Technology Corporation
000
Xxxxx
00xx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
Email:
xxxxx@xxxxxxxxxxxxxxxxxx.xxx
Attention:
Xxxxx Xxxxxxxxxx
or
to
such other address, fax number or electronic mail address of which any
party
may
notify the other parties as provided above. Notices shall be deemed given
as
of the date of any fax transmission acknowledgement, upon personal delivery
or delivery by overnight courier service, receipt of any reply e-mail
confirming
delivery of such e-mail or five days after deposit of any certified or
registered letter in the mail.
10
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| SUNNCOMM INTERNATIONAL, INC. | MEDIAMAX TECHNOLOGY CORPORATION | |
|
By ______________________________
Name: Xxxxx X. Xxxxxx
Title: President
|
By___________________________
Name:
Xxxxx Xxxxxxxxxx
Title:
President
|
11
SCHEDULE
A
Description
of Products
TranzByte
CD and DVD multimedia enhancement software enables extra features like music
videos, lyrics, biographies, photo galleries, banner and other online viral
advertising, games, internet links and much more. It allows you to copy songs
to
a computer or portable player with the record labels approval. You can also
share songs with family and friends using the MusicMail feature.
CDMX
is a
multi-media CD enhancement technology is housed entirely on the CD itself and
does not require the loading of any software components in order to access
the
music and bonus content.
IPT
is an
enabling technology that was designed to offer companies an innovative
alternative to traditional marketing media. Housed on a digitally-enhanced
CD,
X.XX provides branding, viral marketing, advertising and revenue-generating
opportunities.
OctiPod
provides an environment and interface to include additional digital content
on a
Video DVD. The most common application might be a movie soundtrack or other
audio content included on the same DVD as a movie.
All«Play
allows the use of electronic, optical and digital content across multiple
applications, and more specifically, allows both content owners and end users
to
control how and where they can access content. For example, the delivery of
music from an online music store to multiple destinations in multiple formats.
DVD
copy
management, content protection and enhancement technology. This technology
provides an alternative, authorized process to play, move and share content
from
Video-based (Movie) DVDs in a legally approved and controlled process. It
provides a compromise solution that delivers limited rights and enhanced
features to DVD buyers without allowing freedom to steal content from
the
producer, or studio.
Perfect
Placement is a product / service offering available through a graphic user
interface. It is a centrally-served direct response marketing environment which
provides a mechanism for the record labels, artists and movie studios to
advertise their back catalogs, merchandise, web sites and take advantage of
cross-promotional opportunities. Perfect Placement also allows record labels
and
Movie studios to generate third-party ad revenue based on targeted advertising
and sponsorships available through the user interface.
MusicMail
is a software product that allows the owner of a SunnComm enhanced CD or DVD
to
legally share available music with a friend by providing the recipient with
a
song that can be downloaded and listened to for a limited number of days, a
limited number of plays or with a specific expiration date or no expiration
at
all.
Other
products currently under development include, but are not limited to: MediaMax
used in conjunction with a Music Kiosk that creates "enhanced CDs", MediaMax
for
CD+G (Karaoke CDs), MediaMax customized for confidential corporate audio/video
content on CDs & DVDs.
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