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EXHIBIT 10.7
DVD MANUFACTURING LICENSE AGREEMENT
This DVD MANUFACTURING LICENSE AGREEMENT is made as of the 4th day of April,
2000, by and between MACROVISION CORPORATION, a Delaware corporation, having its
principal place of business at 0000 Xx0xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
U.S.A., facsimile number (000) 000-0000, and XXXXXX.XXX, INC., a California
corporation, having its principal place of business at 00000 Xxxxxxx Xxxx.,
Xxxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000.
RECITALS
A. Macrovision is the owner of all right, title and interest in and to
certain anticopying technology which may be used to protect video
material against unauthorized analog copying in connection with Digital
Video Disc, Digital Video Cassette Recorder or DVD ROM program playback.
B. As the owner of such technology, Macrovision has developed a unique
licensing structure which relies for its success upon the proper
implementation of the technology by Licensee, and Licensee acknowledges
the importance to the overall success of the DVD industry of Licensee 's
compliance with the terms and specifications set out in this Agreement.
C. Licensee desires to incorporate the Macrovision anticopy technology
components into Products.
D. Macrovision acknowledges Licensee's desire and is ready to make such
technology available to Licensee in accordance with the terms and
conditions contained in this Agreement.
E. Prior to the Effective Date of this Agreement, Licensee has made certain
written representations to Macrovision, including but not limited to,
representations regarding Licensee's background, senior executives,
annual reports and/or financial statements, primary customers, bank and
credit references, key shareholders, and how Licensee intends to utilize
Macrovision technology in the commercial marketplace. Macrovision is
relying on these representations in consenting to enter into this
Agreement with Licensee.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants set forth below, the
parties agree as follows:
1. DEFINITIONS
In this Agreement,
1.1 "ADAPTIVE CONTROL" means the ability to switch between the
primary configuration of the Process and one or more secondary
configurations of the Process on a real-time basis in accordance
with the status of control bits read from the media;
1.2 "AGC SYSTEM" means a system of modifying a video signal so as to
inhibit the making of Playable video recordings therefrom. This
modification includes adding a combination of either a pseudo
sync or a regular sync pulse with an AGC pulse. These pairs of
sync and AGC pulses are designed to cause the AGC circuitry in a
Recording Device to miscalculate the proper gain setting and
thereby render copy protection performance Effective;
1.3 "AGREEMENT" means this agreement and all attachments hereto;
1.4 "APPARATUS" means apparatus for implementing the Process within
a Product;
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1.5 "APPARATUS CLAIMS" means claims 14-20 of U.S. Patent No.
4,631,603, claims 8-14 of U.S. Patent No. 4,577,216, claims 9-13
of U.S. Patent No. 4,819,098, claims 18-29, 32,33,44-52 of U.S.
Patent No. 4,907,093, foreign counterparts thereof having a
first filing date prior to April 14,2007, as well as reissues,
continuations, continuations-in-part, divisions, patents of
improvement, patents of addition, and inventor certificates
thereof, and all patent applications for related improvements
filed prior to April 14,2007;
1.6 "AUTHORIZED COMPONENT SUPPLIER" means a Macrovision authorized
supplier of manufactured Devices;
1.7 "COLORSTRIPE" means the modification of a color video signal to
inhibit the making of Playable video recordings thereof. The
resultant color picture from a subsequent video tape recording
will show variations in the color fidelity that appear as bands
or stripes of color error;
1.8 "COPY PROTECTED" means, when referring to a Disc or Digital
Cassette, a Disc or Digital Cassette on which the Trigger Bits
have been set to activate the Process in the Product; and when
referring to program material means that the Process has been
applied to the analog output of the Product;
1.9 "DEVICE" means an Authorized Component Supplier's integrated
circuit which contains the Apparatus;
1.10 "DIGITAL CASSETTE" means a prerecorded digital video cassette
which incorporates the Trigger Bits to activate or control part
or all of the Process;
1.11 "DISC" means a prerecorded digital video disc/digital versatile
disc which incorporates the Trigger Bits to activate or control
part or all of the Process;
1.12 "DISPLAY DEVICE" means consumer-type television sets, TV-VCR
Combinations which display an analog NTSC, PAL, YC or YUV
signal, and all other devices which display NTSC, PAL, YC or YUV
video signals from Products, which Licensee or its Subsidiaries
or affiliates manufactures or sells;
1.13 "DVCR TECHNOLOGY" means the technology used in the design
development and/or manufacture of digital video cassette
recorders utilizing industry standard specifications. Such
recorders will reproduce real-time recordings as well as play
back Digital Cassettes. Such recorders do not include digital
recorders that record on a less-than-real time basis for later
playback. For the purposes of this Agreement,
"less-than-real-time" means any application in which a video
program is transmitted to an end user in significantly less time
than the program 's normal running time, and is recorded as
received on any suitable medium, for later viewing by the end
user;
1.14 "DVD TECHNOLOGY" means the technology used in the design,
development and/or manufacture of Digital Versatile Disc players
and/or recorders utilizing industry standard specifications,
independent of the laser technology, the method of media
production and the disc or system parameters. Such players
and/or recorders may utilize industry standard specifications
and will reproduce real-time recordings as well as playback
Discs. Such recorders do not include digital recorders that
record on a less-than-real time basis for later playback;
1.15 "EFFECTIVE" or "EFFECTIVENESS" or words of similar import means
the characteristic of recording a Process-encoded input signal
in such a way that it seriously degrades the recorded signal to
produce a
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picture, the entertainment value of which is destroyed. Subject
to the foregoing, one means of determining whether the
Effectiveness requirements have been met would be to ascertain:
1.15.1. for the AGC System, that Recording Devices will react to
the AGC signal such that, when a program has been Copy
Protected with the AGC process, a Recording Device will
create copies of the program which, when played back,
display a reduction in their video signal amplitude of
at least 65%. More specifically, a standard color bar
signal containing 100% peak white, and measuring 1 volt
peak-to-peak from sync tip to peak white, when Copy
Protected according to the latest published AGC process
specifications, should be reduced to 350 millivolts or
less as measured from sync tip to peak white, when
recorded and played back. [Note that the AGC pulses
cycle in amplitude between zero and 117 IRE units. The
reduction to 350 millivolts peak-to-peak of the recorded
video level should be measured while the AGC pulses are
at maximum level.];
1.15.2. for Colorstripe, that a Recording Device will be
considered to have met the Effectiveness criteria for
Colorstripe, if, on playing back a Colorstripe-protected
video program which was recorded on the Recording Device
used for such play back, any one or more of the
following effects is produced:
1.15.2.1 a complete inversion of the color phase of
the chroma on those lines which began with a
Colorstripe-modified colorburst;
1.15.2.2 a complete loss of chroma on the active
portion of those lines following a
Colorstipe-modified colorburst;
1.15.2.3 a complete or intermittent loss of chroma
throughout at least 50% of the visible image
(if intermittent, the chroma should be
missing not less than 50% of the time in any
10 second interval); or
1.15.2.4 any other form and level of degradation to
which Macrovision in its sole and absolute
discretion agrees in writing;
1.15.3. Licensee may satisfy the requirements for Effectiveness
herein by incorporating into its Recording Devices
circuitry which will detect a modified signal as
described in the AGC System and/or Colorstripe and, upon
doing so, stop recording.
1.15.4. Attachment 8 sets out the pertinent test criteria by
which Licensee may verify the responsiveness of its VCR
circuitry for the purpose of determining Effectiveness;
1.16 "EFFECTIVE DATE" means the date entered in the preamble of this
Agreement;
1.17 "LICENSEE" means XxXxxx.xxx, Inc. and its Subsidiaries;
1.18 "MACROVISION" means Macrovision Corporation;
1.19 "METHOD CLAIMS" means claims 1-13 of U.S. Patent No. 4,631,603,
claims l-7 of U.S. Patent No. 4,577,216, and claims 1-8 of U.S.
Patent No. 4,819,098, foreign counterparts thereof having a
first filing date prior to April 14,2007, as well as reissues,
continuations, continuations-in-part, divisions, patents of
improvements, patents of addition and inventor certificates
thereof, and all patent applications for related improvements
filed prior to April 14, 2007;
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1.20 "PERSONAL VIDEO RECORDER" means a stand-alone, real-time video
recording appliance containing a Device, having both analog
video input and output ports, which digitize the analog input
for recording in a digital format on a removable or
non-removable recording medium (other than a Digital Cassette or
a Disc) with subsequent output as analog video;
1.21 "PLAYABLE" and "PLAYABILITY" means the characteristic of not
displaying materially degraded pictures from signals containing
the Process, including color bars and active program material.
The ideal playability requirement for an anticopy process
requires that a skilled observer, viewing a variety of typical
and worst case images on a large representative sampling of TV
models in use, should be unable to determine whether copy
protection is turned on or not. In this context, worst case
images are those most likely to produce visible artifacts for
the particular copy protection system in question. For the
purposes of this Agreement, compliance with the Playability
requirements of the Agreement will be determined largely by
objective measurement criteria, but in light of the
impossibility of including every possible situation under an
objective measurement umbrella, Licensee is required to adhere
to a subjective indicator of playability also. The subjective
indicator, from which the objective measurements are derived, is
as follows: the TV model in question, when displaying copy
protected images, should not produce any artifacts as a result
of the copy protection which could cause critical consumers to
complain. Without limiting the generality of the foregoing,
Playability will be deemed to have been achieved when:
1.21.1. with respect to the AGC System,
1.21.1.1 Skew Errors. The horizontal phase lock loop
shall have recovered from any disturbance
caused by the pseudo-sync pulse component of
the AGC process such that the first active
line of each field shall be offset
horizontally by no more than 200 nanoseconds
from its correct position. Subsequent lines
shall have smaller offsets in a smoothly
diminishing manner. Also, the offset error
profile on alternate fields shall differ by
no more than 10%;
1.21.1.2 Clumping errors. The black level clamping
circuits shall have recovered from any
disturbance caused by the pseudo-sync/AGC
pulse pairs, such that the blanking error on
the first active line of each field shall be
within 2 IRE unit of its correct value, and
subsequent lines shall have smaller errors
in a smoothly diminishing manner. Also, the
error profile on alternate fields shall
differ by no more than 0.5 IRE units to
avoid flicker. This measurement should be
carried out when the AGC pulses are at
maximum amplitude;
1.21.1.3 Gain Errors. The gain of the luminance or
chrominance channels of the TV set shall
change by no more than 1% when the AGC
pulses are cycled between maximum and
minimum amplitude;
1.21.1.4 Vertical Jitter. Any vertical jitter caused
by the interaction of the pseudosync pulses
and the vertical sync circuits of the TV set
shall be less than 0.05% of picture height;
and
1.21.1.5 Retrace Blanking. TV sets should have
adequate blanking to ensure the absence of
any visible artifacts due to the presence of
AGC pulses during the retrace period;
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1.21.2. with respect to Colorstripe,
1.21.2.1 RGB amplitude Errors. The demodulated RGB
signals shall exhibit no more than a
0.5% amplitude differential between lines
with modified colorburst and lines with
normal colorburst, measured using 75% color
bars. Field to field (30Hz) changes of this
differential should be less than 0.1%. This
measurement may either be made
differentially between tube grids and
cathodes, or directly on the color
difference signals with appropriate scaling;
1.21.2.2 Saturation Changes. The amplitude of the
demodulated color difference signals shall
change by no more than 1% when the
Colorstripe process is cycled on and off;
1.21.2.3 Phase Changes. The phase of the regenerated
color subcarrier shall change by no more
than 1 degree when the Colorstipe process is
cycled on and off; and
1.21.2.4 Luminance artifacts. The separated luminance
signal shall exhibit no amplitude variations
in excess of 0.25% on lines with modified
colorbursts as compared to lines with normal
colorburst.
1.22 "PROCESS" means Macrovision's proprietary Analog Protection
System ("APS") in which the video signal is modified by:
1.22.1. the AGC System, or
1.22.2. the AGC System and Colorstripe, as more particularly
described in Attachments 1A and 1B;
1.23 "PRODUCT", sometimes individually referred to herein as a Player
or a Recorder, means one or more of the following:
1.23.1 a Disc player which incorporates the Device, and an
analog video output port and associated control
software, and which is offered for sale or intended to
be offered for sale by Licensee to consumers, directly
or indirectly, for purposes of play back of real-time
Discs; or
1.23.2 Disc recorder which incorporates the Device, and an
analog video output port and associated control
software, and which is offered for sale or intended to
be offered for sale by Licensee to consumers, directly
or indirectly, for purposes of play back and/or
recording of real-time Discs; or
1.23.3 a digital video tape recorder which incorporates the
Device, and an analog video output port and associated
control software, and which is offered for sale or
intended to be offered for sale by Licensee to
consumers, directly or indirectly, for purposes of
recording and/or playback of real-time Digital
Cassettes, and includes digital video tape recorders as
well as camera/recorder ("camcorders" combinations
containing analog video output or input ports; or
1.23.4 a DVD ROM drive and/or a circuit board or other
associated circuitry which incorporates or utilizes the
Device and an analog video output port and associated
control software, and
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which is offered for sale or intended to be offered for
sale by Licensee to consumers, directly or indirectly,
for purposes of play back of real-time Discs;
1.23.5 any future product incorporating the Device which
emulates the functionality of any of the foregoing;
provided that any question of interpretation as to
whether any such product actually constitutes a Product
for the purposes of this definition will be broadly
construed in favor of providing copy protection to
Rights Holders;
1.24 "RECORDING DEVICE" means any consumer-type analog video
recorders, including camcorders, and/or consumer-type analog
television-video recorder combinations which Licensee or
affiliates manufactures or sells under its own brand names after
the Effective Date;
1.25 "RIGHTS HOLDER" means an owner of program rights to any material
to be recorded on a Disc or a Digital Cassette. Rights Holders
will be under individual licenses from Macrovision to activate
the Process by encoding or embedding codes onto a copy-protected
Disc or Digital Cassette during the mastering and/or
manufacturing of the Disc or Digital Cassette;
1.26 "SECURITY STANDARDS" means the features Licensee must include in
the design of the Player or Recorder to reasonably ensure that
the Apparatus cannot readily be compromised, activated or
deactivated by an unauthorized party, as specified in Attachment
2;
1.27 "SET TOP DECODER" means a digital video decoder which contains a
Device and which enables consumers to receive television
broadcasts or transmissions of pay-per-view programming over
cable, direct broadcast satellite, telephone lines or by other
means;
1.28 "SUBSIDIARY" means any entity in which the majority of shares
entitled to vote for the election of directors is owned or
directly or indirectly controlled by a party hereto, for as long
as such ownership or control exists;
1.29 "TECHNOLOGY" means Macrovision's proprietary technology
embodying the Apparatus Claims (but not the Method Claims), the
technology specified in Attachments 1A, lB, 2 and 3, related
trade secrets, know-how, and show-how, and all related
improvements developed by Macrovision in the future, necessary
to enable a reasonably competent manufacturer to design, develop
and/or manufacture Products which will allow application of the
Process to the analog output of a Player or a Recorder and which
will allow detection of the analog copy protection signal on the
analog input of a Recorder, but expressly excludes the
technology used for activation of the Adaptive Control of the
Process;
1.30 "TERRITORY" means the countries in which Macrovision has
relevant patents, as listed in Attachment 4. Macrovision, upon
the written request of Licensee, will consider in good faith the
addition of individual nations to the Territory on a
nation-by-nation basis; and
1.31 "TRIGGER BITS" means those Analog Protection System (APS)
trigger bits, to control the application of the Process within a
Product the function of which is to control the application of
the Process within a Product.
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2. GRANT OF RIGHTS/PAYMENTS
2.1 GRANT. For valuable consideration, and subject to the terms and
conditions of this Agreement, Macrovision grants to Licensee,
and Licensee hereby accepts from Macrovision, the following
royalty-free, indivisible, non-exclusive and non-transferable
rights to use the Technology to:
2.1.1. purchase the Device from Authorized Component Suppliers;
2.1.2. incorporate in the Territory, or have incorporated in
the Territory on a subcontract basis for the benefit of
Licensee, the Device within one or more Products; and
2.1.3. use, import, offer for sale, sell and distribute
Products worldwide, for use in implementing the Process
with program material which has been Copy Protected
under agreement with Macrovision, directly or indirectly
to consumers solely under Licensee's own brand names;
provided that Licensee also has the worldwide right to
physically dispose of defective Product after it has
been destroyed.
Macrovision also agrees not to assert its rights against
Licensee for Licensee's manipulation or passing of the Trigger
Bits by way of a software function.
2.2 FIELD OF USE RESTRICTIONS. Licensee acknowledges that
Macrovision is granting and Licensee is receiving under this
Agreement only those rights expressly set out in this Agreement
and no other rights or licenses, express, implied or by
estoppel. Without limiting the generality of the foregoing, this
Agreement grants no rights whatsoever with respect to
less-than-real-time applications, pay-per-play Discs and related
hardware, Set Top Decoders and Product/Set Top Decoder
combinations, Personal Video Recorders and Product/Personal
Video Recorder combinations, and Products manufactured in
combination with other digital devices. Licensee expressly
acknowledges that its right to offer for sale, sell and
distribute Products incorporating the Device directly or
indirectly to consumers is restricted solely to allowing such
consumers to utilize such Products to play program material Copy
Protected under an agreement with Macrovision (which restricted
use Licensee will incorporate into its Product manuals).
2.3 OEM'S. Agreement is not applicable by itself to situations in
which Licensee proposes to build Product on an original
equipment manufacturer (OEM) basis for third party suppliers who
market such Products under their own brand names, and no rights
to sublicense the Technology are granted hereunder. In addition
to this Agreement, a separate non-assertion agreement between
Macrovision and Licensee substantially in the form attached
hereto as Attachment 7 will be required in such instances, and
all such third party suppliers who will sell or otherwise
distribute more than five thousand (5,000) Products in any
calendar year, directly or indirectly to consumers, under their
own brand names, must execute a license agreement with
Macrovision under Macrovision's then current license terms,
prior to receiving shipment of Product from Licensee. However,
provided that Licensee has entered into the separate
non-assertion agreement with Macrovision, Licensee may sell a
limited number of Macrovision-certified Products to non-licensed
third parties on an OEM basis pursuant to the terms of such
non-assertion agreement. Macrovision will negotiate the required
nonassertion agreement and third party license agreements in
good faith. Parties desiring to acquire nonMacrovision capable
DVD equipment from Licensee on an OEM basis are not required to
obtain a license from Macrovision.
2.4 FEES APPLICABLE. Notwithstanding Section 2.1, Licensee will pay
to Macrovision a license fee in the amount of thirty-thousand
U.S. dollars ($30,000.00) which is payable upon execution of the
Agreement by Licensee. In addition, throughout the term of this
Agreement, Licensee will pay to
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Macrovision an ongoing annual license fee of fifteen-thousand
U.S. dollars ($15,000.00) on each anniversary of the Effective
Date unless, for any given year, Licensee produces or has
produced for it less than one hundred (100) items comprising
Products, in which event the annual fee will be five thousand
dollars ($5,000.00). If following the Effective Date Licensee
chooses to enter the Display Device and/or Recording Device
business, then, notwithstanding Section 2.1, Licensee will
choose (and notify Macrovision in writing of such choice), prior
to shipping any such products for revenue, whether or not it
will comply with both Sections 4.3 and 4.4 of this Agreement. If
Licensee chooses not to comply with either Section 4.3 or 4.4,
as applicable, then the following additional fees will apply:
2.4.1. ADDITIONAL UP-FRONT FEE. Licensee will pay to
Macrovision, in addition to the license fees referred to
in section 2.4 hereof, a license fee of one hundred
thousand U.S. dollars ($100,000.00), payable thirty
(30)days after the twelve-month anniversary of the
Effective Date; and
2.4.2. PRODUCT ROYALTY FEES. Licensee will pay to Macrovision a
Product Royalty Fee equal to five U.S. dollars
($5,000.00) or two percent (2%) of Licensee 's wholesale
price to its distributors, whichever is greater, for
each Product sold by Licensee from the inception of this
Agreement until such time as Licensee becomes compliant.
All Product Royalty Fees are payable to Macrovision
within thirty (30) days after the close of each calendar
quarter in which such Product is sold.
In the event that Licensee chooses to become compliant with
Sections 4.3 and 4.4 of this Agreement subsequent to fees
becoming payable under this Section, Licensee will not be
relieved of its obligation to pay any fees which have accrued
prior to such time as Licensee actually becomes compliant.
2.5 PAYMENT TERMS. Each royalty payment due to Macrovision under
Section 2.4, if any, will be accompanied by a written statement
substantially in accordance with Attachment 6, specifying the
amount of payment due Macrovision and the means of calculation
thereof. Each statement will be certified as true and correct by
an officer of Licensee. Interest will be due on any late payment
at the rate of eighteen percent (18%) per annum or the maximum
rate permitted under applicable law, whichever is less, from the
due date of such payment until the date of actual payment.
2.6 BILLING ADDRESS. Licensee's billing address for the purposes of
this Agreement, if applicable, is:
00000 Xxxxxxx Xxxx
Xxxxxxx, Xx 00000
Attention: Xxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
2.7 AUDIT RIGHTS. Whether or not this Agreement commences as or
becomes a royalty-bearing agreement, Macrovision will have the
right during the term of this Agreement and for one (1) year
thereafter to have an independent certified public accounting
firm review or audit Licensee records for the purpose of
certifying compliance with this Agreement. All audits will be at
Macrovision's expense and conducted during regular business
hours, and begun upon at least one (1) week's prior notice. If
the audit reveals that any payments due to Macrovision have been
understated by more than five percent (5%), or that Licensee has
otherwise materially breached this Agreement, then, without
limiting any other rights which Macrovision may have in respect
thereof, Licensee will
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reimburse Macrovision for the cost of the audit. Any
discrepancy in the amounts paid will be corrected within ten
(10) days of the written notice of the official results of the
audit being delivered by the auditor.
3. DESIGN REQUIREMENTS/CERTIFICATION AND COSTS
3.1 DESIGN AND DEVELOPMENT OF PRODUCTS. Licensee will design and
develop the Product to properly incorporate the Technology in
accordance with Attachments lA, lB, 2 and 3. Macrovision will
have no responsibility for the design, development, manufacture
and distribution of Products. Licensee further agrees and
acknowledges that the design, development, manufacture, and
integration of the Technology into a Product will be at Licensee
's sole expense.
3.2 ADAPTIVE CONTROL. Licensee will be solely responsible for
implementation from a software and hardware perspective of the
Adaptive Control of the Process and the Device. Macrovision will
not provide to Licensee any software or hardware component
related to Adaptive Control, or any specification therefor, and
Licensee will be solely responsible for providing (or obtaining
from third parties) the necessary adaptive control capability
within the DVD or DVCR format. Licensee acknowledges that the
Product specification developed by Macrovision provides for
Adaptive Control, but that Authorized Component Suppliers are
free to implement Adaptive Control in a unique manner which may
result in Adaptive Control differences from one Authorized
Component Supplier to another.
3.3 CERTIFICATION PROCESS. Prior to shipment of the initial item
constituting a Product hereunder to any customer (including OEM
customers), Licensee will furnish such initial Product and its
product manual to Macrovision at Licensee's sole expense, and
will coordinate with Macrovision the time period required for
the testing and approval thereof. Licensee will not ship any
Product or New Product until such item has been tested and
approved by Macrovision and Macrovision has provided Licensee
with a certificate evidencing such approval. Subsequent Product
shipments do not require testing prior to shipping, however,
throughout the term of this Agreement, Macrovision may request
that Licensee provide up to three (3) representative samples of
each Product, even if such Product has already been tested and
certified by Macrovision. For purposes of this Agreement, a New
Product means any Product which i) contains a Device
manufactured by a different manufacturer, ii) which uses
different firmware or microcontroller code to control the
Device, iii) which uses new navigator software which manipulates
the Trigger Bits, or iv)which incorporates changes to the
filtering of the analog signal. A Product will also require
recertification if it was validated for only one TV standard and
subsequently will be deployed in an area with a different TV
standard. Licensee agrees to promptly respond* to technical
questions raised by Macrovision which arise as a result of such
testing or which relate to variances from Attachments lA, lB, 2
and 3 of this Agreement or the Security Standards, and agrees to
discuss such matters with Macrovision at Macrovision's facility
in Sunnyvale, California as may be reasonably necessary.
Licensee agrees that it shall be the Licensee's ongoing
responsibility to design and manufacture all Products such that
they meet the requirements of Attachments lA, lB, 2 and 3 of
this Agreement and the Security Standards.
4. ADDITIONAL TERMS
4.1 ACTIVATION/USAGE OF TECHNOLOGY INTO DVD TECHNOLOGY AND/OR DVCR
TECHNOLOGY. For the purposes of this Agreement:
4.1.1. it is assumed that a mechanism by which a Disc and/or a
Digital Cassette can be encoded with a part of the
Process and/or have the digital bit stream marked in
such a manner that it
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will activate the Apparatus and add the Process to the
analog output of the Product exists and is available to
Licensee and/or Rights Holders;
4.1.2. a Rights Holder will determine if a particular Disc or
Digital Cassette is to be Copy Protected;
4.1.3. the Apparatus will be "off" (i.e., no Process output)
unless a Disc or Digital Cassette has been encoded for
copy protection and/or has copy protection embedded
codes; and
4.1.4. Licensee agrees that only Macrovision can authorize
usage of the Process or encoding or embedding of Process
codes or Process activation codes onto Discs and Digital
Cassettes.
4.2 UTILIZATION OF TECHNOLOGY. Licensee will incorporate the
Technology in each DVD player, DVD recorder, DVD ROM drive and
DVD-related card, circuit board or reference design which it
produces or has produced for it. Nothing in this Agreement
prohibits Licensee from also incorporating any other form of
anticopy technology, whether existing now or in the future, into
its Products, or from incorporating the Technology into DVD
players, DVD recorders, DVD ROM drives and DVD-related cards or
circuit boards which do not have the capability to decrypt
digitally encrypted video discs.
4.3 RECORDING DEVICE RESPONSE TO TECHNOLOGY. Licensee represents and
warrants to Macrovision that as of the Effective Date, Licensee
does not manufacture or have manufactured for it any items which
constitute Recording Devices. Licensee will promptly notify
Macrovision in writing in the event that it commences business
as a manufacturer or seller of Recording Devices. If during the
term of this Agreement Licensee manufactures or has manufactured
for it any Recording Devices, then Licensee will use its best
efforts, in accordance with this provision, to ensure that its
Recording Devices be responsive to Revision 6.1 and 7.1.Dl (or,
at Licensee's option, higher) of the Process by stopping
recording or recording a Process-encoded input signal in such a
way that it is Effective. In particular, Licensee will not alter
the design of any Recording Device (including but not limited to
changes to the luminance AGC system or color processing) in a
manner that would reduce the Effectiveness of the response to
the Process as described above. License will either stop selling
and manufacturing all such Recording Devices that are not
responsive to the Process in a way that is Effective or alter
the design (including but not limited to changes to the
luminance AGC system or color processing) of such non-responsive
Recording Devices so as to render them Effective. Licensee will
indicate in writing to Macrovision its actions taken in this
regard. This Section 4.3 shall not apply to Recording Devices
manufactured and/or distributed for sale to consumers within the
United States of America.
4.4 DISPLAY DEVICE PLAYABILITY WITH MACROVISION ANTICOPY SIGNAL.
Licensee represents and warrants to Macrovision that as of the
Effective Date, Licensee does not manufacture or have
manufactured for it any items which constitute Display Devices.
Licensee will promptly notify Macrovision in writing in the
event that it commences business as a manufacturer or seller of
Display Devices. If during the term of this Agreement Licensee
manufactures or has manufactured for it any Display Devices,
Licensee, in accordance with the terms of this Section, will
ensure that all such Display Devices be Playable with Revision
6.1 and 7.1.D1 (or higher at Licensee's option) of the Process.
Macrovision will provide the information necessary in its
reasonable opinion to support Licensee in this effort.
Additionally, Licensee will not design Display Devices, or
implement designs in future Display Devices, in a manner which
has the effect of reducing the Effectiveness of the Process when
displaying an analog signal to which the Process has been
applied. If prior to May 1, 1999, the interindustry forum to
resolve Playability issues has been formed as contemplated in
the Joint Explanatory Statement of the Committee of the
Conference for the Digital Millennium Copyright
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Act of the Second Session of the 000xx Xxxxxx Xxxxxx Congress
(H. R. 2281), then the requirements of this Section 4.4 will be
suspended for so long as such inter industry forum remains
available to resolve such Playability issues. Licensee
understands that the Joint Explanatory Statement contemplates
the establishment of an inter industry forum to resolve
Playability issues on a worldwide basis which may arise in the
future in relation to either revisions to the technical
specifications for the Process or the development of new
consumer technologies and products. Licensee acknowledges that
prior to the Effective Date, the Process was the subject of
extensive testing of existing display device technologies which
testing included all or virtually all of the major consumer
electronics manufacturers, and that this testing resulted in
modifications of the specifications (which modifications are
incorporated in Revision 7.1.D1) to assure that the Process
does not produce noticeable adverse effects on the normal
display of content that is protected utilizing the Process.
Accordingly, Licensee further acknowledges that it is on notice
of the existence of the Process and its technical specifications
and should be able to design its products to avoid any adverse
effects. Macrovision has agreed to cooperate in the inter
industry forum, however, Licensee accepts that Macrovision will
not be responsible for resolving future Playability issues with
respect to existing display device technologies unless such
issues are the result of changes to the technical specifications
for the Process made by Macrovision.
4.5 PROCESS ATTRIBUTES. Licensee will not make any representations
about the Apparatus, its effectiveness and attributes that are
contrary to any written representations provided by Macrovision.
Licensee will instruct its distributors to similarly limit
representations made with respect to the Technology.
4.6 LIQUIDATED DAMAGES. If Licensee fails to comply with Section 4.2
herein, or, having elected to comply with Sections 4.3 and 4.4
herein, fails to comply with one or both such Sections, then the
parties agree that, as a realistic assessment of damages
suffered by Macrovision and not by way of penalty, Licensee will
pay to Macrovision in the form of liquidated damages the greater
of the following amounts:
4.6.1. an amount equal to one hundred thousand U.S. dollars
($100,000.00) plus two-percent (2%) of the wholesale
value of all DVD player and DVCR product, whether or not
containing the Technology, which Licensee manufactures
and makes available for sale; or
4.6.2. five hundred thousand U.S. dollars ($500,000.00).
4.7 CONSEQUENTIAL DAMAGES. Notwithstanding anything contained in
this Agreement, Licensee will be liable to Macrovision for
consequential damages resulting from Licensee's failure to
fully comply with the provisions of Section 4.2, or, after
having elected to comply therewith, Sections 4.3 or 4.4, whether
as a result of its negligence or intentional conduct.
4.8 VIDEO CAPTURE CARDS. If video capture cards which Licensee
manufactures or has manufactured are capable of capturing the
video stream for output at a resolution greater than 240 by 320,
and more than thirty (30) fields per second (equivalent to
fifteen (15) frames per second), then Licensee will take one of
the following actions, at its choice:
4.8.1. design and manufacture such video capture cards such
that they are "AGC aware", i.e., they stop their
recording process when a Macrovision pseudo sync pulse
and/or AGC pulse is detected in the vertical blanking
interval; or
4.8.2. pass the copy protection signal through the Product
transparently (i.e., no analog-to-digital conversion)by
hardwire means to the analog output port; or
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4.8.3. digitize the incoming signal and, if the AGC System or
Colorstripe signal is present, apply the Trigger Bits to
a Device that activates the AGC System or the
combination of the AGC System and Colorstripe, for the
purpose of copy protecting any analog output;
provided, however, that with respect to existing video capture
cards Licensee will not be required to implement the terms of
this provision until eighteen (18) months after the Effective
Date, and that this Section shall not apply to video capture
cards which do not accept or process NTSC, PAL or SECAM video
input.
5. SUPPORT AND IMPROVEMENTS
5.1 MACROVISION SUPPORT. When requested by Licensee, Macrovision
will provide, at no cost to Licensee, telephone, fax and email
technical support (and in-person support at Macrovision's
offices in Sunnyvale, California) and documentation reasonably
necessary to assist Licensee and Licensee's chosen Authorized
Component Suppliers with the implementation of the Technology in
its Products. Macrovision will provide reasonable support to
Licensee regarding the use of the Process and its Playability
and Effectiveness with TVs and VCRs, and evaluate problems and
use reasonable efforts to resolve problems reported to Licensee
by consumers.
5.2 IMPROVEMENTS. Macrovision will apprise Licensee of any
improvements in the Apparatus and pursuant to the terms of
Section 1.5 ("Apparatus Claims") such improvements shall
automatically be granted to Licensee pursuant to the terms of
Section 2 (Grant of Rights/Payments) at no charge to Licensee
other than those set forth in Section 2.4 (Fees Applicable) and
Macrovision's reasonable non-development related costs for
services requested in writing by Licensee, which costs may
include (but are not limited to)documentation, travel, meal and
lodging expenses. During the term of this Agreement, and
pursuant to the terms of Section 2 (Grant of Rights/Payments)
Licensee may purchase any improved version of the Device that is
made available by Authorized Component Suppliers.
5.3 COMPLETE DOCUMENTATION. Macrovision represents that the
specifications contained in Attachments 1A, lB, 2, and 3 are
complete to enable a reasonably competent manufacturer to
design, develop and/or manufacture Products which will allow
application of the Process to the analog output of a Player or a
Recorder and which will allow detection of the analog copy
protection signal on the analog input of a Recorder, but exclude
the technology used for activation of the Adaptive Control of
the Process, and may be updated from time to time to reflect
improvements to the Process.
6. PROPRIETARY RIGHTS
6.1 PROPRIETARY PROPERTY OF MACROVISION. Licensee recognizes and
agrees that the Apparatus, the Process and the Technology are
the proprietary property of Macrovision and that Licensee has no
right to sublicense the Apparatus, the Process or the Technology
to any party and has only such limited rights as are expressly
granted by Macrovision to Licensee hereunder. Macrovision
represents and warrants that it owns the Technology and has the
right and power to enter into this Agreement with Licensee.
Macrovision represents that it has no knowledge as of the
Effective Date of any material claims by third parties that the
Process as implemented using the Device infringes any third
party patents.
6.2 PRODUCT NOTICE. Licensee will display notices as set forth in
Attachment 5 on Products and associated collateral material, as
required to appropriately protect Macrovision's intellectual
property
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rights in the country of Product distribution. Such notices may
be in a language appropriate to the countries where the Product
will be distributed.
7. QUALITY CONTROL
Licensee will employ such industry quality standards with respect to use
of the Technology as would be expected of a reasonably competent
manufacturer of electronic devices of the nature and complexity of the
Products, and will design, develop and manufacture Products and any
related operating system software capable of using the Apparatus in
compliance with the Security Standards and Adaptive Control. Licensee
will coordinate any quality control questions which may arise in respect
of Adaptive Control with the relevant Rights Holders. Licensee further
agrees to employ such quality standards with respect to integration of
the Device into Products. Licensee will be solely responsible for
carrying out adequate tests of the Process variables specified in
Attachments 1A and 1B for the purpose of confirming that the design has
been implemented properly and that the Licensee's Product correctly
incorporates the Technology.
8. INDEMNIFICATION
8.1 INDEMNIFICATION OF MACROVISION. Licensee will indemnify
Macrovision against any and all third party claims of
infringement, including patent, copyright and trade secret
claims which may be asserted against Macrovision on the grounds
and to the extent that any modifications to the Apparatus or the
Technology made by Licensee infringes upon such third party 's
patent(s), copyright(s)or trade secret rights. Licensee will
have the right to defend against, control the defense of, and
settle any action based upon any such claims. Licensee will bear
all costs and expenses, including reasonable attorney' fees,
incurred in connection with the defense of any such claims or as
a result of any settlement made or judgment reached on the basis
of such claims. Macrovision will:
8.1.1. promptly notify Licensee in writing if and when such a
claim is made;
8.1.2. furnish such information and assistance as Licensee may
reasonably request in connection with the defense,
settlement or compromise of such claim;
8.1.3. not enter into any settlement of any such claim without
Licensee 's prior written consent; and
8.1.4. allow Licensee to direct the defense of and/or handle
such suit, claim or proceeding.
9. DISCLAIMER OF WARRANTIES AND REVISION LEVEL OF TECHNOLOGY
9.1 THE TECHNOLOGY IS LICENSED UNDER THIS AGREEMENT BY MACROVISION
TO LICENSEE "AS IS". NOTHING IN THIS AGREEMENT WILL BE CONSTRUED
AS A WARRANTY OR REPRESENTATION THAT:
9.1.1. LICENSEE WILL BE ABLE TO MAKE OR INCORPORATE THE DEVICE
OR THE PRODUCT WITHOUT INFRINGING THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES;
9.1.2. LICENSEE WILL BE ABLE TO SUCCESSFULLY MAKE OR
INCORPORATE THE APPARATUS, DEVICE OR PRODUCT; OR
9.1.3. LICENSEE IS GRANTED ANY RIGHTS BY IMPLICATION, ESTOPPEL
OR OTHERWISE EXCEPT THE RIGHTS EXPRESSLY SET FORTH
HEREIN.
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9.2 SPECIFIC REVISION OF TECHNOLOGY. LICENSEE RECOGNIZES THAT THE
LEVEL OF REVISION OF THE PROCESS AND SPECIFICATIONS INCLUDED IN
THIS AGREEMENT IS REVISION 7.1.Dl AND THAT THE REVISION LEVEL TO
BE INCORPORATED AT THE TIME OF MANUFACTURE MAY BE DIFFERENT FROM
THE REVISION LEVEL OF ATTACHMENTS lA, lB, 2 AND 3 AT THE TIME OF
EXECUTION OF THIS AGREEMENT. LICENSEE FURTHER RECOGNIZES THAT
THE REVISION LEVEL OF ATTACHMENTS lA, lB, 2 AND 3 MAY BE THE
SUBJECT OF INDUSTRY STANDARDIZATION OF THE FORMAT SPECIFICATIONS
FOR THE DVD TECHNOLOGY AND THE DVCR TECHNOLOGY AND MAY BE
CHANGED FROM REVISION 7.1.D1. LICENSEE ASSUMES FULL
RESPONSIBILITY FOR INCLUDING THE APPROPRIATE REVISION LEVEL
SPECIFICATIONS IN PRODUCTS PRODUCED BY LICENSEE.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT WILL MACROVISION BE LIABLE FOR LOSS OF PROFITS, LOSS
OF BUSINESS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR
ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR
ANY NATURE OR RIND WHATSOEVER, ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
10.2 IN NO EVENT WILL MACROVISION'S LIABILITY IN CONNECTION WITH THE
TECHNOLOGY, THE DEVICE, THE PROCESS, OR THIS AGREEMENT EXCEED
THE AMOUNTS PAID BY LICENSEE TO MACROVISION UNDER THIS
AGREEMENT. THIS LIMITATION WILL APPLY TO ALL CAUSES OF ACTION IN
THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF
CONTRACT, BREACH OF WARRANTY, MACROVISION'S NEGLIGENCE, STRICT
LIABILITY, PROPRIETARY RIGHTS INFRINGEMENT, MISREPRESENTATION
AND ALL OTHER TORTS.
11. TERM AND TERMINATION
11.1 TERM. This Agreement will commence on the Effective Date and
will continue in effect for a period of five (5) years
thereafter, unless earlier terminated in accordance with its
terms. Subject to such earlier termination, this Agreement will
automatically renew for two (2) three-year renewal terms unless,
within ninety (90) days prior to the commencement of a renewal
term, Macrovision is unable to produce at Licensee's written
request at least one letter from a major Hollywood film studio
indicating such studio's desire to have the Technology continue
to be implemented in industry DVD players and/or related DVD
products. At the end of the second renewal term, Licensee is
free to choose not to renew this Agreement.
11.2 TERMINATION FOR BREACH. Other than with respect to Sections
4.2,4.3,4.4 and 11.3, in the event of a material breach by one
party in the performance of its duties, obligations or
undertakings under this Agreement, the other party will have the
right to give written notice to the breaching party advising
such party of the specific breach involved. If the breaching
party will not have remedied such breach within thirty (30) days
after such notice, the other party will have the right, in
addition to any other rights and remedies it may have, to
terminate this Agreement immediately upon written notice to the
defaulting party of such default with reasonable supporting
documentation specifying in detail the nature of such default.
The thirty (30) day cure period is not applicable to breaches of
confidentiality or improper disclosure of proprietary technology
or other trade secrets.
11.3 TERMINATION FOR NON-PAYMENT. If Licensee fails to make any
payment due to Macrovision under this Agreement, and has failed
to remedy such default within ten (10) days following written
notice
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from Macrovision, then Macrovision will have the right, in
addition to any other rights and remedies it may have, to
immediately terminate this Agreement upon written notice to
Licensee.
11.4 TERMINATION FOR NON-USE. In the event Licensee does not offer
Products for sale in the normal course of its business within
two years of the Effective Date of this Agreement, or fails to
offer Products for sale in the normal course of its business for
any period thereafter during the term of this Agreement that
exceeds one year, then Macrovision, at its option, may terminate
this Agreement by giving written notice to Licensee.
11.5 EFFECT OF TERMINATION. Upon the termination of this Agreement:
11.5.1. all rights granted to Licensee under this Agreement
immediately will terminate and absolutely no interest
whatsoever in any of such rights will thereafter remain
in Licensee; and
11.5.2. Licensee will immediately cease the manufacture and/or
distribution of Products.
11.6 CONTINUING LIABILITY. No termination of this Agreement will in
any manner whatsoever release, or be construed as releasing, any
party from any liability to the other arising out of or in
connection with a party's breach of or failure to perform any
covenant, agreement, duty or obligation contained herein prior
to the date of such termination.
12. CONFIDENTIAL INFORMATION
12.1 CONFIDENTIALITY. Macrovision and Licensee (on behalf of
themselves and their respective officers, employees and
agents)each agree to use all reasonable efforts to keep secret
and confidential, and not to use or permit the use of for any
purpose whatsoever, during the term of this Agreement and for a
period of three (3) years thereafter, all written confidential
information (including the terms of this Agreement) acquired
from the other party ("Confidential Information"), whether prior
to or during the term of this Agreement, except as disclosure or
use of such Confidential Information is permitted by this
Agreement or by a writing signed by the parties hereto. This
confidentiality requirement will extend to Licensee's
relationships with subcontractors and/or distributors. To that
end, without limiting the generality of the foregoing,
Macrovision and Licensee each agree that the Technology
technical information provided by Macrovision and all
information concerning the Security Standards is deemed
Confidential Information for the purpose of this Section. The
parties will promptly confirm any oral disclosure of
Confidential Information in writing, and cause all other written
materials and other documents containing Confidential
Information to be plainly marked by the disclosing party to
indicate the secret and confidential nature thereof, and to
prevent the unauthorized use or reproduction thereof.
Information which is labeled as "Trade Secret" will be protected
for so long as such information remains secret and confidential.
The obligations imposed upon each party hereto by this Section
will not apply with respect to any information which:
12.1.1. is or becomes published or otherwise is generally
available to the public other than through the fault of
the receiving party; or
12.1.2. is publicly released in writing by the disclosing party;
or
12.1.3. is lawfully obtained from a third party without a duty
of confidentiality; or
12.1.4. is known to the receiving party prior to such disclosure
and was not improperly obtained; or
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12.1.5. is, at any time, developed by the receiving party
independently of any such disclosure from the disclosing
party.
The disclosure of Confidential Information shall not be
precluded if such disclosure is in response to a valid order of
a court or other governmental body or is otherwise required to
be disclosed by law; provided, however, that the receiving party
shall first have given written notice to the disclosing party so
that the disclosing party may seek an appropriate protective
order.
12.2 EQUITABLE REMEDIES. Each party acknowledges that in the event it
breaches any confidentiality provision of this Agreement, the
other party may be irreparably harmed and may not have an
adequate remedy at law. In the event either party commits or
threatens to commit any such breach, the other party will be
entitled to injunctive relief to enforce its rights hereunder,
without being required to post any bond or other security.
12.3 SURVIVAL OF OBLIGATIONS. The obligations of the parties under
this Section 12 will survive, in accordance with the terms
hereof, the term and termination of this Agreement and will
remain in full force and effect regardless of the cause of any
termination.
13. EXPORT CONTROLS AND EXCISE TAXES
13.1 FOREIGN CONTROL REGULATIONS. The export regulations of the U.S.
Department of Commerce prohibit, except under special validated
license, the export from the United States of technical data
relating to certain commodities unless the exporter has received
certain written assurances from the foreign importer. In order
to facilitate the exchange of information in accordance with
this Agreement and in conformity with the regulations relating
to the exportation of technical data, Licensee agrees to fully
comply with all relevant regulations of the U.S. Department of
Commerce and to assure that no violation of such regulations or
of the authorizing legislation therefor will occur.
13.2 EXCISE TAXES. The parties anticipate that there will not be any
sales tax, use tax, or other excise tax imposed upon the
transactions set forth in this Agreement. However, in the event
that ay sales tax, use tax, or other excise tax is imposed upon
Macrovision by any jurisdiction with respect to such
transactions, Licensee will reimburse Macrovision the amount of
any and all such taxes paid by Macrovision (excluding taxes on
the income of Macrovision) to the fullest extent permitted by
law.
14. MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW. This Agreement will be governed by and
interpreted in accordance with the laws of the State of
California, as applied to an agreement between two residents of
California to be wholly performed in California.
14.2 ARBITRATION. Except for claims regarding ownership or
infringement of the Technology, the Apparatus Claims, the Method
Claims and/or the Process, any dispute between the parties
arising out of, or relating to, the validity, construction,
interpretation or performance of this Agreement that cannot be
resolved amicably shall be submitted to binding arbitration, to
be held in San Francisco, California, USA, in accordance with
the rules of the American Arbitration Association. Any such
arbitration proceeding shall be conducted before an arbitration
panel composed of three (3) arbitrators; each party shall
designate one (1) arbitrator, and the two (2) arbitrators so
designated shall designate the third arbitrator. The decision
and award of the arbitrators shall (i) be in writing, (ii) state
the reasons therefor, (iii) be based solely on the terms and
conditions of this Agreement, as interpreted under the laws of
the State of California, USA, and (iv) shall be final and
binding upon the parties. The decision and award of the
arbitrators in any such arbitration
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proceeding may be enforced in any court of competent
jurisdiction. However, nothing in this provision shall prohibit
either party from seeking injunctive relief as expressly
provided for herein.
14.3 RIGHTS CUMULATIVE. Each and all of the various rights, powers
and remedies of the parties will be considered to be cumulative
with and in addition to any other rights, powers and remedies
which such parties may have at law or in equity in the event of
breach of any of the terms of this Agreement. The exercise or
partial exercise of any right, power or remedy will neither
constitute the exclusive election thereof nor the waiver of any
other right, power or remedy available to such party.
14.4 NOTICES. All notices, consents or demands of any kind which
either party to the Agreement may be required or may desire to
serve on the other party in connection with this Agreement will
be in writing, will be deemed complete upon delivery and will be
delivered by facsimile with a confirming copy sent by mail,
personal service or by registered or certified mail, return
receipt requested, deposited in the United States mail with
postage thereon fully prepaid, addressed to the party at the
address or facsimile number set forth in the initial paragraph
of this Agreement. Service of any such notice, consent or demand
so made by mail will be deemed complete on the date of actual
delivery as shown by the addressee's registry or certification
receipt. Each party hereto may from time-to-time, by notice in
writing served upon the other as aforesaid, designate a
different mailing address or facsimile number or a different
person to which such notices or demands are thereafter to be
addressed or delivered.
14.5 SEVERABILITY. If any of the provisions of this Agreement are
held to be void or unenforceable, the parties agree that such
determination will not result in the nullity or unenforceability
of the remaining portions of this Agreement. The parties further
agree to replace such void or unenforceable provisions of this
Agreement with valid and enforceable provisions which will
achieve, to the extent legally permissible, the economic,
business and other purposes of the void or unenforceable
provisions.
14.6 COUNTERPARTS. This Agreement may be executed in separate
counterparts, and by facsimile, each of which will be deemed an
original, and when executed, separately or together, will
constitute a single original instrument, effective in the same
manner as if the parties had executed one and the same
instrument.
14.7 ENTIRE AGREEMENT. This Agreement is intended by the parties to
be the final expression of their agreement and constitutes and
embodies the entire agreement and understanding between the
parties hereto and constitutes a complete and exclusive
statement of the terms and conditions thereof, and will
supersede any and all prior correspondence, conversations,
negotiations, agreements or understandings relating to the same
subject matter.
14.8 AMENDMENTS. No change in, modification of or addition to the
terms and conditions contained herein will be valid as between
the parties unless set forth in a writing which is signed by
authorized representatives of both the parties and which
specifically states that it constitutes an amendment to this
Agreement.
14.9 WAIVER. No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more
instances, will be deemed to be, or be construed as, a further
or continuing waiver of that term, provision or condition or any
other term, provision or condition of this Agreement.
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14.10 ASSIGNMENT. Neither party hereto will assign this Agreement or
any rights or obligations hereunder to any party without the
prior written consent of the other party hereto, such consent
not to be unreasonably withheld. However, either party may
assign this Agreement in total to a successor in interest.
14.11 BINDING ON SUCCESSORS AND ASSIGNS. Subject to the restrictions
of Section 14.10 (Assignment), this Agreement and all of its
terms, conditions and covenants are intended to be fully
effective and binding, to the extent permitted by law, on the
successors and permitted assigns of the parties hereto.
14.12 CAPTIONS. Captions are provided in this Agreement for
convenience only and they form no part of this Agreement and are
not to serve as a basis for interpretation or construction of
this Agreement, nor as evidence of the intention of the parties
hereto.
14.13 DISCLAIMER OF AGENCY. Nothing contained in this Agreement is
intended or will be construed so as to constitute the parties to
this Agreement as partners or joint venturers or as agents of
each other. Neither party will have any express or implied right
or authority to assume or create any obligations on behalf of or
in the name of the other party or to bind the other party in any
contract, agreement or undertaking with any third party.
14.14 PUBLICITY. Macrovision and Licensee agree that from time-to-time
it will be beneficial to both parties to issue press releases
and other public announcements concerning benefits arising from
the manufacture and sale of Products. Each party agrees to
submit for mutual approval any press release which involves the
other party and the Technology, such approval not to be
unreasonably withheld. Macrovision may at any time "line list"
Licensee as an authorized Product Licensee. Likewise, Licensee
may publicly disclose that it is a Macrovision-authorized
Product Licensee.
14.15 ATTORNEYS FEES: In any dispute, action, litigation, or
arbitration between the parties arising out of or related to
this Agreement, the prevailing party therein shall be entitled
to have its attorneys' fees, reasonable expenses, related
litigation costs and costs of suit (if any) paid by the
nonprevailing party.
14.16 EFFECTIVENESS. This Agreement shall be effective only when
signed by all parties.
14.17 AMBIGUITIES. Each party and its counsel have participated fully
in the review and revision of this agreement.
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Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not apply in
interpreting this agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the Effective Date.
MACROVISION CORPORATION XXXXXX.XXX, INC.
By: /s/ [ILLEGIBLE] By /s/ XXX XXXXXX
----------------------------- ---------------------------------------
Name: Xxxxx Xxxxxx Name: Xxx Xxxxxx
--------------------------- ------------------------------------
Title: Dir., Contracts Title: V.P. of Business Development
-------------------------- -----------------------------------
Date: 5/1/00 Date: 4-4-00
--------------------------- ------------------------------------
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NOTICE
ATTACHMENTS 1 - 3 OF THIS AGREEMENT ARE THE LATEST VERSION OF THE
"SPECIFICATIONS OF THE MACROVISION ANTITAPING PROCESS FOR DIGITAL PLATFORMS"
IF YOU DO NOT HAVE A COPY OF THE SPECIFICATIONS DOCUMENT,
PLEASE CALL THE CONTRACTS ADMINISTRATIVE ASSISTANT AT (000)000-0000.
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