PREMIUM NETWORK LICENSE AND RESELLER AGREEMENT with DEVELOPMENT TERMS
Exhibit
10.1
with
DEVELOPMENT
TERMS
THIS
AGREEMENT (the “Agreement”) is made and entered into as of June 10, 2009, by and
between en2go International, Inc. (“en2go”), a corporation organized and
existing under the laws of the State of Nevada, United States of America, with a
place of business at 0000 Xxxx Xxxxx Xxx., Xxxxxxx, Xxxxxxxxxx 00000, and
Digital Stream, Inc., a company organized and existing under the laws of the
State of Nevada, United States of America, and with a place of business at 0000
Xxxxx Xxxxxxx Xxx., Xxxxxx Xxxx, Xxxxxxxxxx 00000 (“DSI”).
1. DEFINITIONS
Defined terms used in this Agreement
shall have the meanings set forth below:
1.1. “Application”
means the software and related documentation specified in Appendix B, which are
developed and marketed by DSI in combination with the Customized
Product.
1.2. “Basic
Maintenance” means en2go’s maintenance program pursuant to which en2go shall
provide to DSI receipt of all improvements, error corrections, enhancements,
modifications, updates, new versions, and new releases of the Products (other
than those designated as new products by en2go), and support for the Product(s)
and for all deliverables developed by en2go, for the fees described in Appendix D, payable
in advance. en2go reserves the right, in its sole discretion, to make
non-material changes to the form and content of its Basic Maintenance from time
to time and will provide DSI with a sixty (60) day advance notice of any such
non-material change(s). As used in this Agreement, a “non-material”
change shall consist of change of an administrative or otherwise non-substantive
nature, not having an adverse effect upon an Application previously effected, or
upon the value, performance or functionality of the maintenance, support or
Product being provided, as the case may be. No consent by DSI shall
be required for changes to the maintenance services provided by en2go to
customers of en2go other than DSI.
1.3. “Channel”
means a flow of media objects which can be accessed and delivered directly to a
user's rendering device, including but not limited to, a user’s desktop, by the
Product platform.
1.4. “Confidential
Information” of a party means such party’s technical, business, marketing,
financial or customer information, drawings, specifications, designs, records,
correspondence or other information disclosed by such party in relation to this
Agreement. The Product, Customized Product and any intellectual
and/or proprietary rights therein, including, without limitation, any patent,
copyright, trademark, service xxxx, logo, and trade secrets therein shall be
Confidential Information of en2go, subject to the remainder of this
paragraph. The Applications and any intellectual and/or proprietary
rights therein, including, without limitation, any patent, copyright, trademark,
service xxxx, logo, and trade secrets therein shall be Confidential Information
of DSI, subject to the remainder of this paragraph. A party’s
“Confidential Information” does not include information (i) already in the
public domain prior to the execution of this Agreement, or which enters the
public domain, other than by unauthorized acts of the party receiving such
information (the “Recipient”), (ii) in the rightful possession of the Recipient
prior to the execution of this Agreement, or (iii) which is independently
developed by the Recipient without use of the disclosing party’s Confidential
Information or in violation of the terms of this Agreement.
1.5. “Customized
Product” means the Product as customized and developed pursuant to Section
2.
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1.6. “Effective
Date” means the date first written above.
1.7. “End
User” means a customer of DSI who is authorized by an end user license agreement
to use the Application, Customized Product or Product for End User’s internal
purposes.
1.8. “Export
Laws” means all export laws, administrative regulations, and executive orders of
any applicable jurisdiction relating to the control of imports and exports of
commodities and technical data, including, without limitation, the U.S.
Department of Commerce.
1.9. “Intellectual
Property Rights” means patent rights (including but not limited to rights in
patent applications or disclosures and rights of priority), copyright (including
but not limited to rights in audiovisual works and moral rights), trade secret
rights, and any other intellectual property rights recognized by the law of each
applicable jurisdiction.
1.10. “Level 1
Support” means that the Customized Product or Product is non-operational and no
users can access the system, or the functionality is significantly decreased, or
back up or other security of data can no longer be performed. Such events shall
require immediate resolution by en2go. en2go must start the error
correction not later than four hours following notification by DSI or End User.
For Level 1 Support only, telephone support is available to report
irregularities 24 hours per day 7 days per week.
1.11. “Level 2
Support” means that the Customized Product or Product is operational with
functional limitations or restrictions but there is minimal business impact.
en2go must start the error correction not later than 24 hours following
notification by DSI or End User. en2go shall work to correct errors during
normal business hours using commercially reasonable best efforts to promptly
correct such errors within 5 business days.
1.12. “Level 3
Support” means that the Customized Product or Product is operational with
functional limitations or restrictions that are not critical to the overall
system operation. en2go shall work to correct such errors during normal business
hours. en2go shall use commercially reasonable efforts to correct such errors
within 30 business days.
1.13. “Live
Streaming Service” means DSI’s live streaming service as part of the
Application.
1.14. “Marks”
means a party’s trademarks, trade names, service marks, and/or service
names.
1.15. “Network”
means a channel which includes its own directory, divided by categories or
genres.
1.16. “Premium
Custom Network” means a custom build of the Product Network which enables
multiple administrators to set up channels as well as directories of its
content.
1.17. “Product”
means the Flyxo™ application developed by en2go as described on Appendix A and
licensed hereunder in accordance with this Agreement, including improvements,
error corrections, enhancements, updates, new versions and new releases,
provided to DSI by en2go.
1.18. “Source
Code” means software in human-readable form, including programmers’ comments,
data files and structures, header and includes files, macros, object libraries,
programming tools not commercially available, technical specifications,
flowcharts and logic diagrams, schematics, annotations and documentation
reasonably required or necessary to enable an independent third party programmer
with reasonable programming skills to create, operate, maintain, modify and
improve the software without the help of any other person.
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1.19. “Sub-Distributor”
means a reseller or distributor DSI engages or contracts with to market, sell,
distribute and sublicense the Application, specifically excluding all End
Users.
1.20. “Territory”
means anywhere in the world.
1.21. “User
Documentation” means the then current en2go user manual(s) and other written
materials on the proper installation and use of, and which are normally
distributed with, the Products. en2go represents to DSI that it has
provided to DSI an up-to-date copy of the User Documentation.
2. CUSTOMIZATION OF
PRODUCT
2.1. en2go
will develop interfaces, translations, applications and intellectual property to
customize the Product to include DSI’s Live Streaming Service and customize the
Product functionality to DSI’s clip builder software. en2go and DSI
will mutually agree upon a written statement of work and deployment schedule no
later than thirty (30) days from the Effective Date.
2.2. DSI shall
pay the development fees to en2go as specified on Appendix
D.
3. GRANT OF
LICENSES
3.1. Subject
to the terms and conditions herein, en2go hereby grants and DSI hereby accepts
(i) a non-exclusive, nontransferable (except as otherwise provided herein),
perpetual right and license to use the Customized Product in DSI’s Premium
Custom Network; (ii) a non-exclusive, nontransferable (except as otherwise
provided herein), perpetual, royalty-bearing right and license to subdistribute,
sublicense, display, sell and market the Customized Product as part of the
Application, Customized Product and Product, and accompanying User Documentation
in the Territory; (iii) the right and license to sublicense to End Users the
Customized Product as part of the Application, Customized Product and Product,
and accompanying User Documentation for internal use in the Territory; and (iv)
a non-exclusive, nontransferable (except as provided herein), perpetual,
royalty-free right and license to use in unaltered form en2go’s Marks solely to
promote the Application in the Territory, provided DSI obtains en2go’s prior
written approval for each new usage. en2go retains all title to and,
except as unambiguously licensed herein, all rights, including all Intellectual
Property Rights to the Product, and all copies and derivative works thereof (by
whomever produced).
3.2. Subject
to the terms and conditions herein, DSI hereby grants and en2go hereby accepts
(i) a non-exclusive, nontransferable (except as otherwise provided herein),
perpetual, royalty-bearing right and license to subdistribute, sublicense,
display, sell and market the Live Streaming Service for use solely in
conjunction with the Product in the Territory; (ii) the right and license to
sublicense to end users the Live Streaming Service for internal use in
conjunction with the Product in the Territory; and (iii) a non-exclusive,
nontransferable (except as provided herein), perpetual, royalty-free right and
license to use in unaltered form DSI’s Marks solely to promote the Live
Streaming Service in the Territory, provided en2go obtains DSI’s prior written
approval for each new usage. DSI retains all title to and, except as
unambiguously licensed herein, all rights, including all Intellectual Property
Rights to the Live Streaming Service.
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3.3. Any use
by either party of the other party’s Marks must reference the Marks as being
owned by such party. Nothing in this Agreement grants either party
ownership or any rights in or to use the other party’s Marks, except in
accordance with these licenses, and a party’s use of the Marks will inure to the
benefit of the other party. The rights granted to either party in
this license will terminate upon any termination or expiration of this
Agreement. Upon such termination or expiration, neither party will
make any further use of any Marks. en2go will have the exclusive
right to own, use, hold, apply for registration for, and register its Marks
during the term of, and after the expiration or termination of, this Agreement;
DSI will neither take nor authorize any activity inconsistent with such
exclusive right. DSI will have the exclusive right to own, use, hold,
apply for registration for, and register its Marks during the term of, and after
the expiration or termination of, this Agreement; en2go will neither take nor
authorize any activity inconsistent with such exclusive right.
3.4. DSI shall
ensure that an End User agreement in electronic or hard copy form accompanies
each Customized Product or Product or copy distributed by DSI subject to
provisions no less protective for the Product and en2go, than those set forth
substantially in the form attached hereto as Appendix C, and
previously approved in writing by en2go. In addition, DSI shall
perform any other actions reasonably requested by en2go to assure adequate
protection of en2go’s interests in its Intellectual Property Rights contained in
the Customized Product and Product. DSI shall not distribute or
sublicense a Customized Product or Product pursuant to mass-market or
“shrink-wrap” licenses in those jurisdictions with respect to which DSI has been
advised by legal counsel to DSI that such licenses are not
enforceable. The provisions of the preceding sentence shall not
impair the rights of DSI or End Users in respect of a Customized Product or
Product distributed or licensed prior to the receipt of such advice by legal
counsel.
3.5. DSI shall
comply with en2go’s use policies attached hereto as Appendix E, and shall
use best efforts to cause its End Users and Sub-Distributors to comply with such
policies.
4. EN2GO LICENSE
RESTRICTIONS
4.1. DSI will
not disassemble, modify, decompile, reverse engineer or attempt to derive the
Source Code for the Customized Product. In addition, DSI will not use
the Customized Product in any manner to encumber, provide service bureau, time
sharing, rent or lease the rights granted by this Agreement. DSI’s
rights in the Customized Product and Product will be limited to those expressly
granted in this Agreement.
4.2. DSI shall
not (i) use any en2go Marks in a way that implies DSI is an agency or branch of
en2go, or (ii) modify or alter the Source Code of the Customized Product in any
way.
4.3. DSI
agrees not to resell, distribute or sublicense the Customized Product or Product
to third parties other than Sub-Distributors and End Users, except where such
third parties are approved in writing in advance by en2go, such approval not to
be unreasonably withheld.
4.4. The
Customized Product and Product and all related documentation are protected under
copyright and trade secret laws and contain proprietary information of en2go and
its licensors. DSI shall abide by the terms of any proprietary
notices or markings, and shall use the documentation and the Customized Product
and Product only for the purposes contemplated by this Agreement, and shall not
disclose to others or reproduce the Customized Product or Product (except as
specifically permitted under this Agreement), unless specifically authorized by
en2go or required by law, or relevant in any legal proceeding between the
parties, and shall be liable for all loss or damage to en2go from any failure to
so abide or from any unauthorized disclosure in violation of this Section 4, of the
Customized Product, Product or related documentation by DSI or its
agents.
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5. DSI LICENSE
RESTRICTIONS
5.1. en2go
will not disassemble, modify, decompile, reverse engineer or attempt to derive
the Source Code for the Live Streaming Service. In addition, en2go
will not use the Live Streaming Service in any manner to encumber, provide
service bureau, time sharing, rent or lease the rights granted by this
Agreement. en2go’s rights in the Live Streaming Service will be
limited to those expressly granted in this Agreement.
5.2. en2go
shall not (i) use any DSI Marks in a way that implies en2go is an agency or
branch of DSI, or (ii) modify or alter any of the Source Code used in the Live
Streaming Service in any way.
5.3. The Live
Streaming Service and all related documentation are protected under copyright
and trade secret laws and contain proprietary information of DSI and its
licensors. en2go shall abide by the terms of any proprietary notices or
markings, and shall use the documentation and the Live Streaming Service only
for the purposes contemplated by this Agreement, and shall not disclose to
others or reproduce the Live Streaming Service (except as specifically permitted
under this Agreement), unless specifically authorized by DSI or required by law,
or relevant in any legal proceeding between the parties, and shall be liable for
all loss or damage to en2go from any failure to so abide or from any
unauthorized disclosure in violation of this Section 5, of the
Live Streaming Service or related documentation by en2go or its
agents.
6. APPOINTMENT OF RESELLER;
RELATIONSHIP OF THE PARTIES
6.1. en2go
hereby appoints DSI as an authorized, non-exclusive Value-Added Reseller and
reseller within the Territory. DSI agrees not to market and resell
any other broadcast and media delivery platform except for the Product. A
“Value-Added Reseller” or “VAR” develops, owns and licenses, to one or more
Sub-Distributors and/or End Users, one or more value-added Applications in
conjunction with the Customized Product. A VAR licenses its
Application with each Customized Product it distributes and a reseller has the
right to distribute or license the Customized Product or Product on a
stand-alone basis. The relationship between the parties shall be that of VAR and
reseller licensing products and purchasing services as an independent contractor
from en2go and reselling and sublicensing to Sub-Distributors and End
Users. DSI and its employees are not agents or representatives of
en2go for any purpose and have no power or authority to represent, act for, bind
or commit en2go. Except as stipulated in this Agreement, neither
party shall have any rights, power, or authority to act or to create any
obligation, express or implied, on behalf of the other. Any place or
places of business maintained by DSI in connection with the performance of this
Agreement shall be maintained at DSI’s own name.
6.2. DSI
hereby appoints en2go as an authorized, non-exclusive reseller within the
Territory. en2go agrees not to market and resell any other Live Streaming
Service except for DSI’s Live Streaming Service. A reseller has the
right to distribute or license the Live Streaming Service on a stand-alone basis
or in conjunction with the Product. The relationship between the parties shall
be that of reseller licensing products and purchasing services as an independent
contractor from DSI and reselling and sublicensing to end
users. en2go and its employees are not agents or representatives of
DSI for any purpose and have no power or authority to represent, act for, bind
or commit DSI. Any place or places of business maintained by en2go in
connection with the performance of this Agreement shall be maintained at en2go’s
own name.
6.3. Upon
payment of the license fees specified on Appendix D and upon
completion of the development of the Customized Product, en2go will deliver in
object-code form, one copy of the Customized Product to DSI. DSI
shall sell the Customized Product and Product according to the list base prices
set forth on en2go’s standard price list to be provided to DSI, as may be
amended from time to time by en2go at its sole discretion.
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6.4. Upon the
Effective Date, DSI will deliver in object-code form, a downloadable version of
the Live Streaming Service to en2go. en2go shall sell the Live
Streaming Service according to the list base prices set forth on DSI’s standard
price list to be provided to en2go, as may be amended from time to time by DSI
at its sole discretion.
6.5. en2go and
DSI will conduct a quarterly program review and planning session of their joint
reseller program which will be attended by en2go and DSI executive, sales,
marketing, and engineering teams to discuss the following: (i) sales and pricing
initiatives, (ii) marketing programs, including those committed under this
Agreement, (iii) product solutions, (iv) DSI sales targets for quarter, (v)
approval of DSI prospects as “protected accounts” for commission purposes, (vi)
resolution of channel conflicts, and (vii) registration of top prospects for
sales pipeline. The parties further agree to conduct an annual review
of this reseller program to ascertain progress to-date and to develop new
parameters.
7. FEES AND
PAYMENTS
7.1. DSI shall
pay (i) development fees to develop the Customized Product, (ii) license fees
for use of the Premium Custom Network (“License Fees”), (iii) distribution fees
to resell the Customized Product as part of the Application, (iv) commissions on
Customized Product and Product sales, and (v) Basic Maintenance in accordance
with the fees set forth on Appendix D attached
hereto, and subject to the terms of payment set forth herein and
therein.
7.2. For any
sales of the Live Streaming Service by en2go, DSI will pay a commission fee to
en2go in an amount to be determined by the parties and included as an addendum
to this Agreement. Such payments shall be due within thirty (30) days
after the end of each calendar quarter.
7.3. Each
party shall pay any amounts owed to the other party on the date specified and
according to the terms of this Agreement. Late payments shall accrue
interest at a rate of one and one-half percent (1.5%) per month or the maximum
permissible statutory rate if it is less. In the event that DSI fails
to fulfill the terms of payment, en2go may suspend its performance under this
Agreement until all amounts due are paid by DSI in full, without prejudice to
any other applicable remedies granted or available to en2go under this Agreement
and applicable law. Costs of conversion, outside collection and
related bank charges shall be paid by DSI.
8. REPORTS AND
AUDITS
8.1. Each
party will maintain complete records, during and for two years after the
termination or expiration of this Agreement, regarding the distribution and
sublicensing of the products hereunder.
8.2. The
parties agree to keep accurate records of revenues received and paid, and resale
customers related to and from the sale or license of the products hereunder
during the Term and for a period of 6 months thereafter (the “Reporting
Period”). During the Reporting Period, the parties agree to provide a
copy of such report if requested by the other party, not to exceed one request
per month.
8.3. During
the Reporting Period, either party may from time to time, but not more
frequently than once in any six-month period, inspect the other party’s books
and records as necessary to verify the calculation of payments due pursuant to
this Agreement. Each party will provide reasonable prior notice of
such inspections to the other party, and will conduct such inspection during
normal business hours and at the requesting party’s sole expense. For
any audit that reveals an underpayment in excess of five percent (5%), the
responsible party shall (i) promptly pay the sums owed, along with interest on
such unpaid amounts at the rate of one and one half percent (1.5%) per month or
the maximum rate permitted by law, whichever is less; and (ii) reimburse the
requesting party for the actual, reasonable and documented compensation it shall
have paid to any auditor for the conduct of that audit.
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9. MAINTENANCE, SUPPORT, AND
TRAINING
9.1. DSI will
be responsible for providing the following support to its Sub-Distributors and
End Users: installing the Customized Product and Product as needed; training
Sub-Distributors and End Users; and providing all direct Xxxxx 0 Support and
Level 2 Support to Sub-Distributors and End Users, including receipt of calls,
problem and question intake, installation assistance, problem identification and
assistance, efforts to create repeatable demonstrations of reportable Customized
Product and Product errors, and analysis and using its reasonable efforts to
provide solutions, error correction for the products consistent with DSI’s
standard maintenance and support policies and procedures.
9.2. Subject
to receipt by en2go of the License Fee and Distribution Fee, respectively, en2go
will be responsible for providing Xxxxx 0 Xxxxxxx, Xxxxx 0 Support and Level 3
Support to DSI directly, and Level 3 Support to Sub-Distributors or End
Users. Subject to receipt by en2go of the License Fees, en2go will
provide DSI with Basic Maintenance.
9.3. Any and
all obligations of en2go to provide the Customized Product and Product, as well
as any technical assistance, will be subject in all respects to such United
States laws and regulations as will from time to time govern the license and
delivery of technology and products abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, Bureau of Export
Administration. DSI warrants that it will not export or re-export the
Customized Product, Product and copies related thereto, any Confidential
Information or an Application, or technical data related thereto, except in
conformity with such laws and regulations. DSI agrees that unless
prior written authorization is obtained from the Bureau of Export Administration
or the Export Administration Regulations explicitly permit the re-export without
such written authorization, it will not export, re-export, or transship,
directly or indirectly, the Customized Product, any of en2go’s Confidential
Information or an Application to country groups S or Z (as defined in the export
Administration Regulations), or to any other country as to which the U.S.
Government has placed an embargo against the shipment of products which is in
effect during the term of this Agreement.
9.4. Each of
the Customized Product and Product is a commercial product, licensed on the open
market at market prices, and was and will be further developed entirely at
private expense and without the use of any U.S. Government funds. If
the Customized Product or Product is supplied to the Department of Defense, the
U.S. Government acquires only the license rights customarily provided to the
public and specified in this Agreement. If the Customized Product or
Product is supplied to any unit or agency of the U.S. Government other than the
Department of Defense, the license to the U.S. Government is granted only with
restricted rights. Use, duplication, or disclosure by the U.S.
Government is subject to the restrictions set forth in subparagraph (c) of the
Commercial Computer Software Restricted Rights clause of FAR
52.227-19.
9.5. Subject
to receipt by en2go of the License Fees, en2go will provide technical training
to DSI on how to use the Customized Product, on an as-needed basis.
9.6. If DSI
desires to contract with en2go for additional support, installation and
training, or any other need, DSI will provide such assistance at en2go’s then
current rates.
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10. MARKETING
10.1. Both
parties have the right to issue an initial press release describing the
relationship created by this Agreement, subject to the other party’s written
consent. In the event either party fails to respond to the other
party within five (5) business days after receiving a request to review an
initial press release, such non-responding party shall be deemed to have
consented to the press release. Both parties will have the right and
license to publicly refer to the relationship created by this Agreement and to
use each other's names and/or Marks in advertisements and public relations and
marketing materials related to this Agreement, provided that the specific use
shall be subject to the approval of the other party in each instance except
where disclosure is required by applicable securities laws (which approval shall
not be unreasonably withheld) and shall contain appropriate trademark or service
xxxx notations. The consent provisions of this Section 10 shall not
apply to direct communications between the parties and their customers,
investors, employees, consultants, vendors, attorneys, accountants and prospects
related thereto.
10.2. The
parties agree to co-brand and co-promote each other’s use of products and
services with “Powered by Flyxo” and “Powered by Digital Stream.”
11. CONFIDENTIALITY
11.1. Each
party agrees that it will not disclose to any third party or use any
Confidential Information disclosed to it by the other party, except to carry out
its rights and obligations under this Agreement, and that it will take all
reasonable measures to maintain the confidentiality of all Confidential
Information in its possession or control, which will in no event be less than
the measures it uses to maintain the confidentiality of its own information, but
shall in any event use reasonable care.
11.2. Within
fifteen (15) days of the request of the disclosing party (which requests may not
be made before the termination of this Agreement and all licenses granted
herein), and in its sole discretion, the receiving party shall either return to
the disclosing party originals and copies of any Confidential Information and
all information, records and materials developed from them by the receiving
party, or destroy the same. Either party may disclose only the
existence, but not the contents, of this Agreement without the prior consent of
the other party, except that the contents may be disclosed to parent companies
or other controlling entities, and to financial or legal advisors.
11.3. DSI shall
promptly notify en2go of any actual or suspected unauthorized use or disclosure
of en2go’s Confidential Information received from en2go, or which it becomes
aware and shall provide reasonable assistance to en2go (at en2go’s expense) in
the investigation and prosecution of unauthorized uses or disclosure. En2go
shall promptly notify DSI of any actual or suspected unauthorized use or
disclosure of DSI’s Confidential Information received from DSI, or which it
becomes aware and shall provide reasonable assistance to DSI (at DSI’s expense)
in the investigation and prosecution of unauthorized uses or
disclosure.
11.4. DSI does
not have, and shall not claim that it has, any right in or to any of the Product
or the Confidential Information received from en2go other than as specifically
granted by this Agreement.
12. PROPRIETARY
RIGHTS
12.1. The
Product and accompanying documentation, and Product marketing and promotional
materials are and will remain the sole and exclusive property of en2go and its
licensors, if any, whether the Product is separate or combined with any other
products, including the Application. en2go’s rights under this
Section will include, but not be limited to all Intellectual Property Rights in
the Product and accompanying documentation, and Product marketing and
promotional materials.
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12.2. DSI will
not delete or in any manner alter the Intellectual Property Rights notices of
en2go and its licensors, if any, appearing on the Customized Product and Product
as delivered to DSI. As a condition of the license rights granted to
DSI in this Agreement, DSI will reproduce and display such notices on each copy
it makes of any product.
12.3. DSI will
take customary measures in the marketing and distribution of the Customized
Product and Product to protect en2go’s Intellectual Property Rights in such
product, no less than the extent to which DSI protects its Intellectual Property
Rights in DSI’s products, and will, to the extent lawful, report promptly to
en2go any confirmed infringement of such rights of which DSI becomes
aware. Furthermore, DSI will not modify any of the marketing and
promotional materials of en2go without the prior written consent of
en2go.
12.4. en2go
reserves the sole and exclusive right at its discretion to assert claims against
third parties for infringement or misappropriation of its Intellectual Property
Rights in the Product.
13. PARTY
COMMITMENTS
13.1 en2go
agrees to:
(a) Provide
information as en2go considers necessary and suitable for use within the
Territory and/or as reasonably requested by DSI and agreed upon by en2go, which
enable DSI to develop and market the Application.
(b) Subject
to the receipt of the License Fees, (i) develop and provide customized marketing
and sales materials, and training to DSI; and (ii) jointly develop a dedicated
customer support plan.
(c) To
immediately bring to the attention of DSI any improper or wrongful use in the
Territory of DSI’s Intellectual Property Rights which come to en2go’s
notice. en2go shall assist DSI in taking all steps to defend DSI's
rights but shall not be required to institute legal proceedings.
13.2. DSI
agrees to:
(a) To
maintain at all times to the reasonable satisfaction of en2go sufficiently
trained sales personnel to enable the DSI to perform its obligations under this
Agreement, and for that purpose, to participate in the sales training programs
offered by en2go.
(b) To commit
up to $1,000,000 per year to expenses for marketing, promoting and selling the
Customized Product in the Territory in part based on a joint marketing strategy
and plan with en2go.
(c) To comply
with all laws applicable to the performance of the Agreement, including the
Anti-Kickback Act (41 U.S.C. §§ 51-58) and the Xxxx Amendment (31 U.S.C. §
1352).
(d) To
immediately bring to the attention of en2go any improper or wrongful use in the
Territory of en2go’s Intellectual Property Rights which come to DSI’s
notice. DSI shall assist en2go in taking all steps to defend en2go's
rights but shall not be required to institute legal proceedings.
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14. LIMITED
WARRANTIES
14.1. en2go
warrants to DSI that it has sufficient right and authority to grant to DSI all
licenses and rights that en2go grants under this Agreement. en2go will perform
its development and support services provided hereunder in a professional and
workmanlike manner. DSI
warrants to en2go that it has sufficient right and authority to grant to en2go
all licenses and rights that DSI grants under this Agreement.
14.2. Unless
otherwise expressly authorized in writing, specifying a longer or shorter
period, en2go warrants for a period of one year from date of first use, that the
Product with standard configuration furnished by it, unless altered by DSI or a
third party without the written consent of en2go, conform to the applicable
written specification accompanying such product. DSI’s standard warranty shall
be as set forth on Appendix F attached
hereto.
14.3. en2go’s
liability for any breach of this warranty shall be limited solely to replacement
or repair at the sole option of en2go, if any software found to be defective
during the warranty period, provided the Product is properly installed, not
tampered with or modified, and is being used as originally intended and in
accordance with accompanying specifications and manual. DSI must
notify en2go of any breach of this warranty within the aforementioned warranty
period, and such breach shall be remedied in accordance with this
Agreement.
14.4. IT IS
EXPRESSLY AGREED THAT THE WARRANTY SET FORTH HEREIN SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF DSI, SUB-DISTRIBUTORS AND END USERS. UNDER NO
CIRCUMSTANCES SHALL EN2GO BE LIABLE FOR ANY COSTS, LOSS, EXPENSE, DAMAGES,
SPECIAL DAMAGES, INCIDENTAL DAMAGES OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR
INDIRECTLY FROM THE DESIGN, DEVELOPMENT, SALE, USE OR REPAIR OF THE
CUSTOMIZED PRODUCT OR PRODUCT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE
OR STRICT LIABILITY. IN NO EVENT WILL LIABILITY EXCEED THE PURCHASE
PRICE OF THE CUSTOMIZED PRODUCT OR PRODUCT, AS APPLICABLE.
14.5. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, THE CUSTOMIZED PRODUCT AND PRODUCT, PARTS AND
SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTY AND LIMITS OF
LIABILITY CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES,
EXPRESSED OR IMPLIED ARISING BY LAW, CUSTOM, BY ORAL OR WRITTEN
STATEMENTS. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE, AND ANY DUTIES OF LACK OF NEGLIGENCE ARE
HEREBY DISCLAIMED BY EN2GO AND IT’S REPRESENTATIVES.
15. FORCE
MAJEURE
Neither party shall be responsible for
delays or failure of performance resulting from acts beyond the reasonable
control of such party including, but not limited to, acts of God, fire, flood,
war and civil disturbance, riot, acts of governments, currency restrictions,
terrorist acts, labor shortages or disputes, unavailability of materials, fuel,
floods, power, energy or transportation facilities, failures of suppliers or
subcontractors to affect deliveries, or other similar
disasters. However, any payment obligations by either party pursuant
to the terms of this Agreement shall remain in full force and
effect.
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16. INDEMNIFICATION
16.1. Each
party, its successors, assigns, and affiliates (the “Indemnifying Party”) shall
indemnify, defend and hold the other party, its successors, assigns, and
affiliates (the “Indemnified Party”) harmless from and against any losses,
liabilities, claims, actions, and expenses, including reasonable attorneys’
fees, arising out of: (a) in the case of en2go, a claim alleging that the
Product infringes any U.S. patent, trademark or copyright of any
third party, validly granted and in force under the laws of the United States of
America, or a claim arising out of the breach of any of en2go’s material
obligations under this Agreement, or of any of the representations and
warranties and covenants set forth herein; or (b) in the case of DSI, a claim
alleging that the Application (except for the Customized Product) and the Live
Streaming Service infringes any U.S. patent, trademark or copyright of any third
party, validly granted and in force under the laws of the United States of
America, or a claim arising out of the breach of any of DSI’s material
obligations under this Agreement, or of any of the representations and
warranties and covenants set forth herein.
16.2. The
Indemnified Party shall promptly notify in writing of any claims, demands or
lawsuits covered by this indemnity, provided, however, that the Indemnified
Party’s failure to promptly notify the Indemnifying Party shall not affect the
Indemnifying Party’s indemnity obligations hereunder unless, and only to the
extent that, such failure materially impairs the Indemnifying Party’s ability to
defend against such claim, demand or lawsuit. Promptly after receipt
of such notice, the Indemnifying Party shall assume the defense of such
claim. If the Indemnifying Party fails, within a reasonable time
after receipt of such notice, to assume the defense, then the Indemnified Party
shall have the right to undertake the defense, compromise, and settlement of
such claim for the account and at the expense of the Indemnifying
Party. Notwithstanding the above, if the Indemnified Party in its
sole discretion so elects, the Indemnified Party may also participate in the
defense of such actions by employing counsel at its expense, without waiving the
Indemnifying Party’s obligations to indemnify or defend, provided that the
Indemnifying Party is not prejudiced by such actions. The
Indemnifying Party shall not settle or compromise any claim or consent to the
entry of any judgment to the extent that the judgment or settlement would
prejudice or damage the Indemnified Party, without the prior written consent of
the Indemnified Party.
17. TERM AND TERMINATION OF
AGREEMENT
17.1. This
Agreement shall come into force on the Effective Date, and shall continue in
full force and effect for an initial term of three (3) years (“Initial Term”),
unless terminated earlier under the terms of this Section
17. If this Agreement is not terminated by either party within
ninety (90) days prior to the expiration of the Initial Term or any subsequent
twelve-month extensions, this Agreement shall be automatically renewed for
additional twelve-month terms (the “Initial Term” and any subsequent twelve
month periods, shall be collectively referred to herein, as, the
“Term”).
17.2. en2go or
DSI may terminate this Agreement at anytime based upon any material breach of
this Agreement which is not cured within thirty (30) days of the delivery of a
written notice of such breach to the breaching party by the non-breaching
party.
17.3. en2go or
DSI may terminate this Agreement at anytime for convenience upon ninety (90)
days prior written notice.
17.4. This
Agreement is automatically terminated in the event of: (i) the filing of a
petition for bankruptcy, or any insolvency or receivership concerning either
party; or (iii) the inability of either party to perform its obligations
hereunder, or if a party is prevented from so performing by any governmental
authority, regulation, decree, law, action or inaction. Upon such
termination, en2go shall have no further liability or responsibility to DSI of
any nature whatsoever, including any claims for damages, direct, incidental,
consequential or otherwise, and DSI hereby waives any rights it may have to
termination benefits or fees which are not specified in the
Agreement.
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17.5. On the
termination or expiration of this Agreement, all outstanding obligations in
accordance with the terms of this Agreement, to pay any amount by either party
will become due and payable within thirty (30) days after such termination or
the period otherwise provided in this Agreement, whichever is
earlier.
17.6. Notwithstanding
anything to the contrary contained in this Agreement, it is expressly agreed
that the expiration or termination of this Agreement for any reason shall not
terminate or diminish in any way the right of End Users then using the
Application to use the Customized Product, or end users then using the Live
Streaming Service sold by en2go.
17.7. Upon
termination of this Agreement, the provisions of Sections which are deemed by
their terms shall survive any such termination.
18. ASSIGNMENT
This Agreement may not be assigned by
either party or by operation of law to any other person, corporation or other
entity without the express prior written approval of the other
party. Any purported assignment without such approval shall be null
and void and shall be cause for termination of this Agreement.
19. APPLICABLE
LAW
The interpretation, validity, and
performance of this Agreement shall be governed, construed and enforced in all
respects according to the laws of the state of California, United States of
America without regard to the principles of conflicts of laws. The
United Nations Conventions on Contracts for the International Sale of Goods
shall not apply to this Agreement.
20. NOTICES
All notices required under this
Agreement shall be in writing and shall be deemed given as of the day they are
received either by registered or certified mail or facsimile confirmed and
addressed as follows:
TO
EN2GO: en2go
International, Inc.
Attn:
Chief Executive Officer
0000 Xxxx
Xxxxx Xxx.
Xxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
WITH A
COPY
TO: Xxxxxxxxx
Genshlea Chediak
Attn:
Xxxx Xxx
000
Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000, XXX
Facsimile:
(000) 000-0000
12
TO
DSI:
Digital Stream, Inc.
Attn:
Chief Executive Officer
0000 X.
Xxxxxxx Xxx.,
Xxxxxx
Xxxx, XX 00000, XXX
Facsimile:
_________________
21. LANGUAGE;
HEADINGS
This Agreement is executed in the
English language, which shall be the sole and controlling language used in
interpreting or construing its meaning. The titles and headings of
the various sections and paragraphs in the Agreement are intended solely for
convenience of reference and are not intended for any other purpose whatsoever,
or to explain, modify or place any construction upon or on any of the provisions
of the Agreement.
22. ARBITRATION
Any dispute arising from or in
connection with this Agreement shall first be resolved by negotiations between
en2go and DSI. If such negotiations do not resolve the dispute,
either party has the right to submit the dispute to the American Arbitration
Association in Los Angeles, California, for arbitration by a single arbitrator,
which shall be conducted in accordance with the commercial arbitration rules in
effect at the time of applying for arbitration. The arbitral award is
final and binding upon both parties. Each party shall pay their own
expenses relating to arbitration.
23. AMENDMENT;
WAIVER
No provisions in any business forms
employed by either party will supersede the terms and conditions of this
Agreement, and no supplement, modification, or amendment of this Agreement shall
be binding unless executed in writing by a duly authorized representative of
each party to this Agreement; provided however, that, in the event en2go from
time to time determines, in its sole and absolute discretion, that any
provisions of this Agreement may be invalid, unenforceable, or otherwise
inconsistent with the laws and regulations in force anywhere in the Territory,
as they may from time to time be amended, DSI agrees to in good faith employ its
best efforts to reach agreement with en2go on, and to execute, an amendment of
this Agreement designed to cure such obstacles to recognition and
enforcement. None of the provisions of this Agreement shall be
deemed to have been waived by any act of or acquiescence on the part of en2go or
its agents, employees, but only an instrument in writing signed by an authorized
officer of en2go. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision or of the same provision on another
occasion.
24. SEVERABILITY AND
REFORMABILITY
If any term of this Agreement is held
invalid and unenforceable pursuant to judicial decree or decision, then this
Agreement, including all of the remaining terms, will remain in full force and
effect and such term will be deemed to be either (i) restated or (ii) eliminated
as if such term had never been included, such restatement or elimination
reflecting as nearly as possible the original intentions of the parties in
accordance with applicable law.
25. ENTIRE
AGREEMENT
The parties have read this Agreement
and agree to be bound by its terms, and further agree that it constitutes the
complete and entire Agreement of the parties and supersedes all previous and
contemporaneous communications, oral, implied or written, and all other
communications between them relating to the subject matter
thereof. No representations or statements of any kind in relation to
the subject matter hereof made by either party, which are not expressly stated
herein, shall be binding on such party.
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26. COUNTERPARTS
This Agreement may be executed in one
or more counterparts, each of which will be deemed an original but all of which
will constitute one and the same instrument.
27. ATTORNEY
FEES
In the event of any controversy or
claim or dispute between the parties arising out of or relating to this
Agreement, or the breach of this Agreement, the prevailing party will be
entitled to recover, from the losing party, reasonable attorneys’ fees, expenses
and costs.
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have affixed their signatures and initialed
each page hereof as of the date first written above.
|
EN2GO
INTERNATIONAL, INC.
|
DIGITAL
STREAM, INC.
|
|
BY:
_________________________________
NAME:
______________________________
TITLE:
______________________________
DATE:
______________________________
|
BY:
_________________________________
NAME:
______________________________
TITLE:
______________________________
DATE:
______________________________
|
[SIGNATURE PAGE TO
AGREEMENT]
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