STRATEGIC ALLIANCE
RESEARCH AND DEVELOPMENT AGREEMENT
This Agreement, entered into this ninth day of June, 1998.
BY AND AMONG:
QuesTec Imaging, Inc., a corporation duly organized and existing under the laws
of Wyoming, United States, and having its principle office of business at 000 X
Xxxx Xxxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxx 00000, (hereinafter referred to as
"QuesTec"):
LMC Live Motion Company, a corporation duly organized and existing under the
laws of Germany, and having its principal office of business at Unter den Xxxxxx
0, Xxxxxxxxx, Xxxxxxx, 00000 (Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxx), (hereinafter
referred to as "LMC").
WITNESSETH THAT:
WHEREAS, QuesTec is the owner of several technologies relating to software
systems developed for sports broadcasts, athletic analysis and production
services.
WHEREAS, LMC is a provider of production services and athletic analysis for
Sporting events.
WHEREAS, QuesTec and LMC desire to participate in software and product
development as defined hereinafter through QuesTec's research and development.
QuesTec desires to undertake such software development and distribution thereof
employing said technologies developed and acquired by QuesTec and LMC, and the
parties hereto desire to encourage others to participate in the same to the
mutual benefit of QuesTec and LMC and
WHEREAS, QuesTec and LMC are willing to enter into an Agreement which calls for
the development of software related broadcast enhancement products in the field
of sports broadcasting and athletic analysis.
NOW THEREFORE, it is agreed among the parties as follows:
ARTICLE 1. DEFINITIONS
"QUESTEC INTELLECTUAL PROPERTY" shall mean certain patents, trademarks,
servicemarks and copyrights which are held by QuesTec on software series and
relate to the fabrication and use of the Software, and know-how which includes
all descriptions of data, technical know-how and trade secrets (including but
not limited to, information on QuesTec's customers) relating to the fabrication
and use of The Software, al of which shall be fully described in the individual
Contracts.
"INTELLECTUAL PROPERTY" shall mean software related products developed by
QuesTec and partially funded by LMC directly or as an agent.
"PATENTS" shall mean any patents and patent application relating to the
software, any patents issuing upon any divisions or continuation of such Patents
and patent applications; any patents which issue upon patent application
corresponding to any of the aforesaid Patents and patent applications; and any
reissues, extensions, or additions to any of the foregoing, all of which are
obtained through the Development during the life of the Agreement.
"COPYRIGHTS" shall mean any copyrights relating to The Software which are
obtained through the Development during the life of the Agreement.
"THE SOFTWARE" shall mean certain software in the fields of sports to be used
for sports broadcasting, athletic analysis, and production services which exist
and/or are to be developed by QuesTec employing Patents, Improvement Patents and
know-how.
"DEVELOPMENT" shall mean research, development, creation, invention and any
other work to be conducted and performed by QuesTec hereto for the successful
manufacture of The Software.
"INDIVIDUAL CONTRACTS" shall mean those contracts between the parties where the
parties agree to develop specified
software applications under this Agreement.
ARTICLE 2. WARRANTIES AND UNDERTAKINGS
QuesTec and LMC represent and warrant that they have the full right and power to
grant the rights set forth herein. QuesTec further represents and warrants that
to the best of its knowledge it has full title to its own QuesTec Intellectual
Property, and that there are no outstanding agreements, licenses, assignments,
ship rights or other encumbrances in any manner inconsistent with the provisions
of this Agreement.
ARTICLE 3. INDIVIDUAL CONTRACTS
Specifications of The Software, term for development, share for the expenses for
development, the amount of the royalty for the Intellectual Property, and any
other detailed terms and conditions shall be provided for in the Individual
Contracts.
If there is any inconsistence between the provisions of such Individual
Contracts and this Agreement, the former shall prevail.
ARTICLE 4. LICENSES
QuesTec shall grant to LMC an exclusive license to QuesTec Intellectual
property, and Intellectual Property with the right to use, lease, sell and/or
hypothecate in Europe (excluding Great Britain), Dubai and the United Arab
Emirates. QuesTec will grant to LMC the exclusive rights to Great Britain on or
before March 1, 1999. The Software, pursuant to this Agreement and the
Individual Contracts.
The amount of the licensing fee and royalty for the above licenses shall be
stipulated in the Individual Contracts.
ARTICLE 5. TECHNICAL INTERFACE
Each party shall have a Manager for the exchange of know-how. The Manager shall
supervise the exchange of know-how, arrange conferences and visitations,
maintain pertinent records, and the like, and shall be responsible for authoring
transmissions, disclosure and receipt of know-how.
Prior to disclosure of Intellectual Property, the Manager of the supplying party
shall generally identify the proposed disclosure and obtain a written agreement
from the Manager of the other party, so that the latter understands the nature
of and reason for the identified disclosure and is willing to accept the
identified disclosure. The identified Intellectual Property may thereafter be
disclosed by the
Manager of the disclosing party to the Manager of the other party under a
Confidential Information designation. Such disclosure shall be deemed to be
confidential only to the extent that it is received in writing from the
disclosing party, or, if received only to the extent that it is confirmed in
writing by the disclosing party within fourteen (14) days of the oral
disclosure. The receipt of confidential Intellectual Property shall be promptly
acknowledged in writing by the Manager of LMC.
Respecting any confidential Intellectual Property transmitted and received in
accordance with Article 5.3, to the extent that such Intellectual Property
remains confidential pursuant to Article 5.3, LMC shall use the same efforts to
avoid publication or dissemination of such confidential Intellectual Property as
it employs with respect to information of its own which it does not desire to be
published or disseminated. Notwithstanding expiration or termination of this
Agreement pursuant to Articles 9 and 10, this paragraph shall remain effective
for another two (2) years from the date of expiration or termination of this
Agreement.
ARTICLE 6. COPYRIGHT
QuesTec shall acquire and hold the copyright in The Software
which is developed by QuesTec pursuant to this Agreement.
ARTICLE 7. APPLICATIONS FOR PATENTS
QuesTec shall apply for patents for "The Software" and "Inventions' which are
required and developed under this Agreement, and shall won the Patents. QuesTec
shall bear the expenses in obtaining and maintaining such patents.
ARTICLE 8. INTELLECTUAL PROPERTY PROTECTION
In the event that Intellectual Property licensed hereunder to LMC by QuesTec is
infringed by the use, sale or lease of The Software by an unlicensed third
party, QuesTec may at its option and at its expense, file and prosecute a
lawsuit against such infringer and, in the case of an award of damages related
directly to the Software, after deducting its relevant costs therefrom, any
excess of each damage award shall be divided equally between QuesTec and LMC. If
QuesTec elects not to pursue such infringer for all of their infringement of
said Intellectual Property, than LMC may at there option pursue such infringer,
at their expense, and, in the case of an award of damages, whether or not
related directly to The Software, after deducting their costs from such damages,
any excess of any damage award shall be divided equally between QuesTec and LMC.
The parties hereto
shall each extend to the others full cooperation in all such litigation
proceedings, and either party may join the other as a party thereto.
In the event that on account of the use of QuesTec Intellectual Property, the
Copyrights, or the use or lease/sale of The Software, either LMC or QuesTec is
sued for patent, copyright or any other Intellectual Property infringement by a
third party, then QuesTec and LMC shall promptly and continuously share and
exchange all information relevant to the defense of each lawsuit. Either party
may join the other as a defendant, and both party shall give due and reasonable
credence to the legal and business judgement of the other party in adopting a
reasonable settlement or continuance of each litigation. No settlement shall be
reached which affects the royalty income of the other party without the written
consent of such other party which consent shall not be unreasonably withheld
whether the proposed compromise, if any, be in regard to the terms of settlement
or a reasonable design change in The Software.
ARTICLE 9. AGREEMENT BETWEEN QUESTEC AND LMC
In the event that QuesTec and LMC shall enter into additional Agreements, unless
specified all Agreements shall remain binding. All European clients/prospects
and clients/prospects from Dubai and the United Arab Emirates
are to be serviced by LMC directly. If QuesTec is approached by such
clients/prospects they will be referred to LMC. LMC is to inform QuesTec of any
and all inquiries concerning the use of the above mentioned products and or
services.
ARTICLE 10 DISTRIBUTION
In addition to development, QuesTec will designate LMC as its distributor in
Europe, Dubai and United Arab Emirates, of The Software developed by QuesTec.
The amount of the licensing fee and royalty for LMC's distribution of such
Software and products shall be determined separately by and between QuesTec and
LMC.
ARTICLE 11. TERM.
This Agreement shall come into force on the day first above written and continue
in full force and effect for seven (7) years, and, thereafter, be automatically
renewed for one (1) year periods unless terminated by a written notice given by
either party to the other at least 6 months prior to the expiration date of the
initial period or of any subsequent one year period of this Agreement.
ARTICLE 12. TERMINATION
Should QuesTec or LMC at any time commit any breach of this Agreement and should
such failure or breach not be cured within sixty (60) days after written notice
from either party to the defaulting party specifying the nature of the default,
the notifying party shall thereafter have the right to terminate this Agreement
and/or any licensing rights hereunder as the case may be, by giving written
termination notice to the other party, and such termination shall become
effective on the sixtieth (60) day after the dispatch of such termination
notice. A termination under this Article shall place the parties in the
respective legal position which existed prior to the effective date of this
Agreement.
Should either QuesTec or LMC become insolvent, make an assignment for the
benefit of creditors or be adjudged bankrupt, or should a receiver or trustee of
the property of either QuesTec or LMC be appointed, the other party may
forthwith terminate this Agreement.
ARTICLE 13. NOTICE
All notices and statements to be given shall be sent by mail or facsimile to the
respective addresses of the parties as set forth above unless notification of a
change of address is given in writing. When such notice is given by mail, the
date of mailing shall be deemed the date the notice or
statement is given. A notice given by facsimile shall be deemed effective one
day after dispatch, subject to being following by mail.
ARTICLE 14. ARBITRATION
All disputes, controversies or differences which may arise among the parties
hereto, out of or in relation to or in connection with this Agreement, or the
breach thereof, shall be finally settled by arbitration in the United States in
accordance with The Commercial Arbitration Rules of The U.S. Commercial
Arbitration Association. The award rendered by arbitrator(s) shall be final and
binding upon the parties.
ARTICLE 15. FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and to
the extent such failure or delay is caused by riots, civil commotions, wars,
hostilities between nations, governmental laws, orders or regulations embargoes,
actions by the government or any agency thereof, acts of God, storms, fires,
accidents, strikes, sabotage, explosions, or other similar or different
contingencies beyond the reasonable control of the respective parties. If, as a
result of legislation or
governmental action, any party or parties are precluded from receiving any
benefit to which they are entitled hereunder, the parties shall review the terms
of this Agreement so as to be in the same relative positions as previously
obtained hereunder.
ARTICLE 16. NON-ASSIGNABILITY
Neither party hereto shall assign any of its rights or obligations under this
Agreement without the prior written consent of the other party hereto.
ARTICLE 17. INTERPRETATION
This Agreement shall be construed and interpreted according to the laws of the
United States and the state of New York.
ARTICLE 18. MODIFICATION
This Agreement supersedes any and all prior agreements between the parties
hereto regardless of whether such agreements, if any, existed by reason of
direct contract, assignment or otherwise whatsoever, and it embodies all of the
understandings and agreements between the parties pertaining to the subject
matter hereof and may be amended or modified only by written instrument duly
executed by the
parties.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to by signed
and sealed by their duly authorized office or representative as of the date
first above written.
"QuesTec"
QuesTec Imaging, Inc.
by: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxx (CS)
by: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx
"LMC"
LMC Live Motion Company
by: /s/ Xxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxxxxx
by: /s/ Xxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxx
