EXHIBIT 16.1
CO-MARKETING PARTNER AGREEMENT
THIS CO-MARKETING AGREEMENT ("Agreement") is entered into between NeoMedia
Technologies, Inc., a Delaware corporation having principal offices at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx, XX, 00000 XXX ("NeoMedia") and Xxxxx Cone &
Xxxxxxx, a division of FCB Worldwide L.L.C., a Delaware limited liability
company having offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Partner").
R E C I T A L S
WHEREAS, NeoMedia has developed its PaperClick service and other products that
link printed matter and physical objects to the Internet, and NeoMedia has the
right and authority to grant licenses to use and solicit orders for such service
and products;
WHEREAS, Partner possesses significant marketing experience and expertise; and
WHEREAS, NeoMedia desires to enlist Partner as a provider of Marketing Services
(as defined in Schedule A hereto) in the Territory (as defined herein);
NOW, THEREFORE, in consideration of the mutual covenants and promises recited
herein, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS
The above recitals are hereby incorporated into this Agreement.
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
2.1 "NeoMedia Trademarks" shall have the meaning set forth in Section 18
herein.
2.2 "Marketing Services", are defined as products and services, as described
further in Schedule A.
2.3 "End User" shall mean manufacturers, brand managers, or other people or
entities that register their unique identifiers for use in the PaperClick
platform.
2.4 "Product(s)" shall mean, collectively, NeoMedia's PaperClick platform.
Additional products and services may be added by amendment upon
negotiation and mutual agreement of the parties.
2.5 "Non-Exclusive" means that Partner is authorized to solicit orders for the
Product in the Territory designated in Schedule B, but that another entity
including NeoMedia might also be so authorized.
2.6 "Revenue Share" means the division of revenue generated from End Users
through NeoMedia's PaperClick platform, between NeoMedia and Partner, as
defined in Schedule C.
2.7 "Subscriber" means any entity licensed to utilize the Products.
2.8 "Territory" means the geographical region (and market segment, if
specified) as specified in Schedule B, attached hereto and made a part
hereof.
3. PROVISION OF SERVICES
3.1 Non-Exclusive Provider of Marketing Services. Subject to the terms and
conditions of this Agreement, NeoMedia hereby appoints Partner as a
non-exclusive provider of Marketing Services in the Territory, upon the terms
and conditions set forth herein. NeoMedia further grants to Partner a personal,
non-exclusive, nontransferable license to market and demonstrate NeoMedia's
services and products, during the term hereof and within the Territory, which
license may not be used by Partner for any purpose except in furtherance of its
obligations hereunder.
3.2 Conditions to Partner's Rights. NeoMedia grants the rights set forth in
Section 3.1, provided that:
(a) so doing will not reduce or diminish in any way NeoMedia's title or
proprietary rights to any portion of the Products;
(b) Except as otherwise explicitly permitted by this Agreement, Partner shall
not (i) adapt, modify, reverse-engineer, or disassemble Products; (ii)
create derivative works based upon the Products; or (iii) make any use of
the Products not explicitly provided for herein;
4. TERM
Unless sooner terminated in accordance with the terms hereof, the term of this
Agreement shall commence as of the date last executed (the "Effective Date") by
a party and shall continue in full force and effect for a period of one year
(the "Initial Term"); provided, however, that at the expiration of the initial
and each renewal term hereof, this Agreement shall automatically renew for
successive one (1) year periods (the "Renewal Term") unless either party shall
have delivered to the other notice of its intention not to renew at least thirty
(30) days prior to the expiration of the then-current term. The Initial and
Renewal Term may hereinafter be collectively referred to as the "Term."
5. TERRITORY
For purposes of this Agreement, the term "Territory" shall mean that geographic
area (and market segment if specified) described in Schedule B which is attached
hereto and incorporated herein by reference.
6. DUTIES OF PARTNER.
6.1 Reasonable Efforts. Partner shall use commercially reasonable efforts to
provide Marketing Services within the Territory in accordance with the terms of
this Agreement, consistent with good business ethics and in a manner that
Partner in good faith believes will reflect favorably upon NeoMedia.
6.2 Qualification To Do Business. Partner shall make such filings and take such
action as may be required to qualify to do business under all applicable
federal, state and local laws and regulations in order to perform under the
terms of this Agreement.
6.3 Staff and Personnel. Partner may employ third parties in its business to
meet its obligations hereunder. Partner shall be solely responsible for any
payments owed to third parties, and hereby indemnifies and holds NeoMedia
harmless from claims by and liabilities to any person who alleges that NeoMedia
is responsible for the payment of amounts due to such third party as a result of
such party's relationship with Partner provided that Partner: (i) is promptly
informed and furnished a copy of each communication, notice or other action
relating to the alleged infringement, (ii) is given authority, information and
assistance necessary to settle, compromise or litigate said suit or proceeding,
and (iii) no settlement of any suit is made without the express permission of
Partner, which shall not be unreasonably withheld.
6.4 Training of Partner Personnel. Prior to marketing or demonstrating its
services, Partner must have at least one person(s) on staff who has/have
completed NeoMedia's required training. Training shall be provided by NeoMedia
or its representative(s), at a time and place mutually agreed upon by NeoMedia
and Partner.
6.5 Demonstrations. Partner may provide demonstration versions of the Products
to potential End Users, subject first to coordination with NeoMedia to secure a
demonstration license for Product in a form approved by NeoMedia and, if
practicable, a limited function/duration password from NeoMedia. Partner
acknowledges that any user of Product must consent to NeoMedia's standard terms
for any use of Product.
6.6 Representations. Partner shall limit its claims and representations
concerning NeoMedia to those made by NeoMedia in published product literature,
and shall not make any claims or representations inconsistent with or exceeding
such claims of NeoMedia.
6.7 Status Reports. Partner shall keep NeoMedia advised of its activities
relative to the Products, orally and through monthly written reports, which
shall include, without limitation and where applicable, information regarding:
(i) a complete record of all Marketing Services activity, in a form to be
mutually agreed upon by NeoMedia and Partner; (ii) advertising activities,
including a copy of all published advertisements and press releases relating to
Product; (iii) display of Product at appropriate trade shows and exhibitions;
and (iv) market and technical information concerning products similar to the
Products sold in the Territory.
6.8 Inspection. During the Term of this Agreement and for three (3) years
thereafter, Partner shall keep all usual and proper entries and records relating
to Marketing Services. Upon five (5) business days notice and during business
hours, NeoMedia may make reasonable inquiries, copies and conduct inspections to
ensure compliance by Partner with the terms and conditions of this Agreement.
1. DUTIES OF NEOMEDIA
7.1 Materials. NeoMedia shall promptly provide Partner with all code, graphics
and other materials necessary for Partner to perform its obligations as set
forth hereunder.
7.2 Customer Support and Service. NeoMedia shall provide telephone, e-mail and
Web-based support to Partner as reasonably necessary to implement and maintain
the PaperClick Linking Service platform. NeoMedia's customer support
representatives will be available between the hours of 8 a.m. and 6 p.m. E.S.T.
Monday through Friday. NeoMedia shall promptly forward to Partner all questions
directed to NeoMedia regarding the PaperClick Linking Service. NeoMedia shall
provide to Partner such training as required to implement the PaperClick Linking
Service platform, and shall provide Partner with a dedicated contact who shall
be available during standard business hours to answer Partner's questions
7.3 Representations. NeoMedia shall limit its claims and representations
concerning Partner to those made by Partner in published product literature and
approved by Partner, and shall not make any claims or representations
inconsistent with or exceeding such claims of Partner.
8. REVENUE SHARING
NeoMedia and Partner shall share revenue generated from sale of the Products and
the Marketing Services in the Territory as outlined in Schedule C.
9. ASSIGNMENT
Partner shall not assign or transfer, whether by merger, operation of law or
otherwise, this Agreement or any of its rights and privileges hereunder to any
other person, firm or corporation without the prior written consent of NeoMedia,
which consent may be withheld for any or no reason. Any attempted assignment
shall be void and without effect and not merely voidable.
10. TERMINATION
10.1 Without Cause. This agreement may be terminated without cause by either
party with 30 days written notice to the other party.
10.2 For Cause.
(a) Either party shall have the right to terminate this Agreement prior to the
expiration of the Initial or any Renewal Term of this Agreement for
"cause." The term "cause", for purposes of this Agreement, shall mean a
breach of any material obligation under this Agreement, which remains
uncured after written notice of breach or infringement and thirty (30)
days opportunity to cure such breach, except that in the event of a breach
associated with non-payment, the cure period shall be five (5) business
days.
(b) Notwithstanding anything to the contrary, either party may terminate for
cause immediately upon written notice (and without opportunity to cure)
upon the occurrence of the following:
(i) if the other party becomes insolvent, makes a general assignment for
the benefit of creditors, or becomes the subject of any voluntary or
involuntary bankruptcy or insolvency proceeding under any applicable
law and such proceeding is not terminated within sixty (60) days of
its commencement;
(ii) if the other party ceases to be actively engaged in business.
(c) Notwithstanding anything to the contrary, either party may terminate for
cause upon written notice in the event of a material breach of any
obligations with respect to title, proprietary rights, confidentiality or
trade secrets, or any infringement caused by any action or omission of the
other party, if such breach cannot be cured. In the event such breach can
be cured, the breaching party shall first be afforded written notice and a
five (5) day opportunity to cure if the breaching party has not previously
breached under this provision in the prior year.
10.3 Effect of Termination or Expiration. Upon termination or expiration of this
Agreement, any license or rights granted hereunder shall terminate and the
parties shall have no further liability or obligations to each other, except for
those which survive as specified in this Agreement.
10.4 Extension for Post-Termination Customer Support. NeoMedia acknowledges that
an End User agreement entered into with Partner's customers during the term of
this Agreement may have a duration extending beyond the Term hereof. Therefore,
after the expiration or termination of this Agreement, NeoMedia may allow
Partner to retain the right to use the Product internally only to provide
Customer Support until the expiration of then-existing End User agreements.
11. RELATIONSHIP
11.1 Independent Contractor. Partner and NeoMedia are independent contractors.
No employee of Partner shall be deemed to be an employee of NeoMedia, and vice
versa. Neither party shall have the power to hire or fire the other party's
employees and except as herein expressly provided, neither party may control or
have access to the other party's funds or the expenditures thereof, or in any
other way exercise dominion or control over the other party's business.
11.2 No Employment Relationship; No Joint Venture. Neither Partner nor any of
the individuals whose compensation for services is paid by Partner is in any
way, directly or indirectly, expressly or by implication, employed by NeoMedia,
nor shall any of them be deemed to be employed by NeoMedia for purposes of any
tax, withholding, or contribution levied by the Federal Social Security Act or
any state law, or any foreign national or local law, with respect to employment,
unemployment, disability, or compensation for employment. Partner accepts
exclusive liability for any payroll taxes, income tax withholding, or
contributions imposed by the Federal Social Security Act or any state law, or
any foreign national or local law, with respect to the Partners or individuals
whose compensation for services is paid by Partner. Nothing in this Agreement
shall be construed so as to give to the Partner any rights as a partner in the
business of NeoMedia or to entitle it to control in any manner the conduct of
such business. Neither party has the right to bind the other to any agreement
with a third party, or to incur any obligation or liability on behalf of the
other party, and neither shall be liable for the debts or obligations of the
other, unless written consent is given.
12. CONFIDENTIAL INFORMATION
12.1 Definition. "Confidential Information" consists of (i) any information
designated by the disclosing party as or which by its nature is known to be
confidential, and (ii) any information relating to the NeoMedia's Product plans,
Product designs, Product costs, Product prices, Product names, finances,
marketing plans, business opportunities, personnel, research, development or
know-how, including oral disclosures, except such information which the parties
agree in writing is not confidential. The recipient of Confidential Information
shall use Confidential Information solely for implementing its obligations under
this Agreement.
12.2 General. Neither party will use in any way for its own account or the
account of any third party, nor disclose to any third party, any such
Confidential Information revealed to it by the other party, except as explicitly
permitted herein. The recipient agrees to protect any Confidential Information
from disclosure to others with at least the same degree of care as that which is
accorded to its own proprietary information, but in no event with less than
reasonable care. In the event of termination of this Agreement, there will be no
use or disclosure by recipient of any Confidential Information of the disclosing
party, and the recipient will not develop or have developed any applications
utilizing any of the other party's Confidential Information.
12.3 Exceptions. The foregoing restrictions will not apply to information that
(i) is known to the recipient at the time of disclosure, (ii) has become
publicly known through no wrongful act of the recipient, (iii) has been
rightfully received from a third party authorized to make such disclosure
without restriction, or (iv) has been approved for release by written
authorization of the disclosing party.
12.4 Notification of Breach. Each party agrees to notify the other promptly in
the event of any breach of confidentiality or security under conditions in which
it would appear that any Confidential Information was prejudiced or exposed to
loss. The recipient shall, upon request of the disclosing party, take all
reasonable steps necessary to recover any compromised trade secrets disclosed to
or placed in the possession of the recipient by virtue of this Agreement.
12.5 Remedies. Each party acknowledges that any breach of any of its obligations
under this Section is likely to cause or threaten irreparable harm to the other
party, and, accordingly, the recipient agrees that in such event, the disclosing
party shall be entitled to equitable relief to protect its interest therein, as
well as money damages.
13. NON-SOLICITATION
Each party acknowledges that, pursuant to discussions and negotiations of this
Agreement or with the ongoing performance thereof, each may have contact with
the employees and contractors (collectively, the "Employees") of the other party
and that said Employees might be rendering valuable and/or unique services, the
interruption or termination of which might cause serious disruption to the
business interest of the party employing such Employees. Therefore, each party
agrees it will not solicit for the purpose of employment the Employees of the
other party who are associated with work related to this Agreement. This
provision shall remain in effect during the term of this Agreement and for one
year following termination or expiration.
14. INDEMNIFICATION
14.1 Indemnification for Performance.
Partner shall indemnify, defend and hold NeoMedia, its shareholders, directors,
officers, employees, representatives, dealers, Partners and assignees harmless
against any claims arising out of performance by Partner or its employees and
contractors of its or their duties or the exercise of its or their rights
pursuant to this Agreement and pursuant to any agreement with such third parties
provided that Partner: (i) is promptly informed and furnished a copy of each
communication, notice or other action relating to the alleged infringement, (ii)
is given authority, information and assistance necessary to settle, compromise
or litigate said suit or proceeding, and (iii) no settlement of any suit is made
without the express permission of Partner, which shall not be unreasonably
withheld. For purposes of this indemnification, "claims" means and includes all
obligations, such as taxes in connection with business conducted or sales made
by the Partner or its third parties, or actual damages, such as accountants',
attorneys' and expert witness fees, costs of investigation and proof of facts,
court costs, other litigation expenses, travel and living expenses. This
indemnity shall continue in effect even after, and notwithstanding this
Agreement's expiration or termination.
14.2 Third Party Rights. Partner hereby agrees to indemnify, defend and hold
harmless NeoMedia, its affiliates and their shareholders, directors, officers,
employees, representatives, dealers, partners, vendors, consultants and
assignees; against any liability for any claims of any type whatsoever that the
actions of Partner violated any third party rights, including but not limited to
infringement of any copyright, invasion of privacy or violation of any other
right of any third party or any actions arising from or related to the subject
matter, text, graphics, or other content or material on or associated with the
web content linked by Partner provided that Partner: (i) is promptly informed
and furnished a copy of each communication, notice or other action relating to
the alleged infringement, (ii) is given authority, information and assistance
necessary to settle, compromise or litigate said suit or proceeding, and (iii)
no settlement of any suit is made without the express permission of Partner,
which shall not be unreasonably withheld.
14.3 Insurance. No insurance is required by Partner to act on behalf of
NeoMedia.
14.4 Indemnification for Infringement.
(a) Deferral and Payment of Settlements. NeoMedia shall defend any suit or
proceeding brought against the Partner insofar as such suit or proceeding
is based on a claim that Product as furnished by it to Partner constitutes
infringement of any issued United States patent, copyright, or trade
secret, and NeoMedia shall pay all settlements and costs against Partner,
subject to the limitation of liability set forth herein, and provided that
NeoMedia: (i) is promptly informed and furnished a copy of each
communication, notice or other action relating to the alleged
infringement, (ii) is given authority, information and assistance
necessary to settle, compromise or litigate said suit or proceeding, and
(iii) no settlement of any suit is made without the express permission of
NeoMedia, which shall not be unreasonably withheld. This indemnity shall
continue in effect even after, and notwithstanding this Agreement's
expiration or termination.
(b) Alternative Benefits. If Licensed Product is held in any such suit to
infringe and the use of the Product is enjoined, or in the case of a
settlement as described above, NeoMedia shall have the option, at its own
expense, to (i) procure for Partner the right to continue using Product,
(ii) replace same with a non-infringing Product of substantially similar
functionality, (iii) modify same to make it non-infringing, or (iv) refund
the cost of the affected Product, and accept the return of same.
14.5 Partner Infringement. Notwithstanding anything to the contrary, NeoMedia
shall not be obligated to defend or be liable for costs and damages if
infringement arises out of compliance with Partner's specifications,
incorporation of Partner's or third party equipment, applications or software in
the Product, from a modification of Product after delivery or from other fault
or action of Partner or a third party. NeoMedia may decline to accept orders
under this Agreement if infringement caused by any such action of indemnified
party has been alleged, or has occurred.
15. WARRANTY AND DISCLAIMER
WARRANTY. NEOMEDIA SOLELY OWNS THE PRODUCT, AND TO THE BEST OF ITS KNOWLEDGE,
THE PRODUCT DOES NOT INFRINGE ANY THIRD PARTY PATENTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS. PRODUCT IS PROVIDED TO PARTNER ON AN "AS IS" BASIS. ALTHOUGH
NEOMEDIA WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN PRODUCT, PARTNER
UNDERSTANDS AND AGREES THAT PRODUCT IS OF SUCH COMPLEXITY THAT IT MAY CONTAIN
INHERENT DEFECTS. NEOMEDIA DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS OR
GUARANTEES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO (i) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE; (ii) ANY WARRANTY THAT PRODUCT WILL OPERATE UNINTERRUPTED OR
ERROR-FREE; AND (iii) ANY WARRANTY REGARDING CONTINUED PROVISION OR ACCURACY OF
DEMOGRAPHIC INFORMATION.
16. LIMITATION OF LIABILITY AND DAMAGES
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD
PARTY FOR ANY SPECIAL, ENHANCED, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL,
OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING FROM THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOSS OF DATA, OR
OTHERWISE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT OR OTHER
THEORY OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES OR NOTWITHSTANDING WHETHER SUCH DAMAGES WERE FORESEEABLE. THESE
LIMITATIONS SHALL NOT APPLY TO DAMAGES FOR PERSONAL INJURY OR DEATH.
17. FOREIGN LAW WARRANTIES
Governmental Consent. Partner represents and warrants that no (i) consent,
approval or authorization of or designation, declaration filing with any
governmental authority in the Territory is required in connection with the valid
execution and delivery of this Agreement, and (ii) no provision of this
Agreement violates any statute, rule or regulation promulgated within the
Territory; or if any of the forgoing do apply, that Partner will not commence
any marketing activity in that portion of the Territory until such warranty can
be made. Partner shall be responsible for making appropriate filings with any
applicable governmental or regulatory authorities in the Territory.
18. PROPERTY RIGHTS
18.1 Rights to Product.
18.1.1 Intellectual Property Rights; Assignment. Partner acknowledges and agrees
that NeoMedia owns all right, title, and interest in the Product, and in all of
NeoMedia's patents, trademarks, trade names, inventions, copyrights, know-how,
and trade secrets relating to the design, manufacture, operation or service of
the Product. The use by Partner of such property rights is authorized only for
the purposes herein set forth and upon termination of this Agreement for any
reason, such authorization will cease.
18.1.2 No Other Rights. Partner may not, directly or through any person or
entity, in any form or manner, except as specifically authorized herein, copy,
distribute, reproduce, incorporate, use or allow access to the Product or
modify, prepare derivative works of, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from the Product. Product shall not be
used for Partner's own business use, except solely in furtherance of its
obligations hereunder. Partner will take appropriate steps with its customers,
as NeoMedia may reasonably request, to inform them of the restrictions contained
in this Section.
18.1.3 Proprietary Notices. Partner will not remove any copyright and other
proprietary notices in the Product.
18.2 Trademarks and Trade Names.
18.2.1 Use of Trademarks. During the term of this Agreement, either party
may advertise the Product under the trademarks, marks, and trade names that the
owning party may adopt from time to time ("NeoMedia Trademarks" or "Partner
Trademarks," as the case may be). Nothing herein will grant to either party any
right, title or interest in the other party's trademarks. At no time during or
after the term of this Agreement will either party challenge or assist others to
challenge the other party's trademarks or any registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to the other
party's trademarks.
18.2.2 Use of Trade Names. Partner will present and promote the sale of the
Product. Partner may use the Product in advertising and promotional media,
provided that the advertising party conspicuously indicates in all such media
that such names are trademarks of the owning party, as specified by the owning
party. Upon termination of this Agreement for any reason, each party will
immediately cease all use of the other party's names and trademarks and deliver
all materials in its control or possession which bear such names and trademarks.
Neither party will challenge any intellectual property rights claimed by the
other in such trademarks. Notwithstanding anything herein to the contrary,
neither party will attempt to cause the other party to adopt any particular
advertising, promotional or marketing plan.
18.3 Survival. The provision of this Section shall survive expiration or
termination of this Agreement.
19. MISCELLANEOUS
19.1 Press Releases. Both parties hereby grant each other authority to mention
one another in each party's press releases. Each party shall have approval
authority before any such press release is made.
19.2 Entire Agreement. Together with any prior Confidentiality agreement which
may exist between the parties, this Agreement constitutes the entire agreement
between the parties with reference to the subject matter hereof and supersedes
all prior negotiations, understandings, representations and agreements, if any.
Each of the parties acknowledges that it is entering into this Agreement as a
result of its own independent investigation and not as a result of any
representations of any other party not contained herein.
19.3 Construction and Interpretation. (a) This Agreement is to be construed in
accordance with the laws of the State of FLORIDA, UNITED STATES OF AMERICA,
without regard to conflict of laws principles, and the parties agree that in any
dispute, jurisdiction and venue shall be in Xxx County, Florida USA. (b) The
titles and subtitles of the various sections and paragraphs of this Agreement
are inserted for convenience and shall not be deemed to affect the meaning or
construction of any of the terms, provisions, covenants and conditions of this
Agreement. (c) The language in all parts of this Agreement shall in all cases be
construed simply according to its fair meaning and not strictly for or against
either party. (d) It is agreed that if any provision of this Agreement is
capable of two constructions, one of which would render the provision void and
the other of which would render the provision valid, then the provision shall
have the meaning which renders it valid.
19.4 Assignment. This Agreement shall inure to the benefit of each party's
respective successors and assigns, subject to the limitations on assignment or
transfer otherwise set forth herein.
19.5 Modifications and Waivers. Neither this Agreement nor any provision thereof
may be modified, waived, discharged or terminated orally, but only by a writing
signed both parties. A waiver of any provision by either party to this Agreement
shall be valid only in the instance for which given and shall not be deemed
continuing; further, any such waiver shall not be construed as a waiver of any
other provision of this Agreement.
19.6 Further Assurances. Each party to this Agreement represents, agrees and
warrants that it will perform all other acts and execute and deliver all other
documents that may be necessary or appropriate to carry out the intent and
purposes of this Agreement.
19.7 Severability. Nothing contained in this Agreement shall be construed as
requiring the commission of any act contrary to law. Whenever there is any
conflict between any provision of this Agreement and any present or future
statute, ordinance or regulation contrary to which the parties have no legal
right to contract, the latter shall prevail, but in such event the provision of
this Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law. In the event that any
part, article, paragraph, sentence or clause of this Agreement shall be held to
be indefinite, invalid or otherwise unenforceable, the entire Agreement shall
not fail on account thereof and the balance of the Agreement shall continue in
full force and effect. If any court of competent jurisdiction deems any
provision hereof (other than for the payment of money) unreasonable, court may
declare a reasonable modification thereof and this Agreement shall be valid and
enforceable and the parties hereto agree to be bound by and perform the same as
thus modified.
19.8 Notices. Whenever notice or consent is required hereunder, such notice
shall be made in writing, and shall be considered effective upon personal
delivery; or upon delivery to the postal system, if sent postage prepaid,
registered or certified mail, return receipt requested; or upon delivery to a
national overnight courier, if prepaid, receipt signature required; at the
address of each party stated herein. Notices shall be directed to the attention
of the person signing this Agreement and in the case of NeoMedia, a copy shall
also be directed to the attention of the General Counsel. Either party may
change its address designation by providing notice hereunder. Such notices which
are refused shall be deemed delivered on the date of attempted delivery.
19.9 Force Majeure. Neither party shall be liable to the other for delays or
non-delivery or non-fulfillment of any orders or failure to perform any part of
this Agreement for any reason or unforeseen circumstance beyond the affected
party's reasonable control, including without limitation acts of God, fire,
labor disputes of any nature, inevitable accident, insurrection, delays in
transportation, delivery, or supply.
19.10 Signature Authority. The parties hereto represent and warrant that the
individuals signing below are authorized to bind their respective parties.
19.11 Counterparts; Duplicate Originals. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument. This
Agreement may be executed in duplicate.
INTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to
be executed as of the date and year last executed below.
PARTNER: NEOMEDIA:
XXXXX CONE & XXXXXXX, a division of NEOMEDIA TECHNOLOGIES, INC.
FCB WORLDWIDE L.L.C.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------- -------------------------------
Print Name: Xxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxxx
Title: Chariman and CEO FCBi Worldwide Title: President & CEO
Date: 3/18/05 Date: 3-18-05
