EXHIBIT 10(at)
LICENSE AGREEMENT
License Agreement made this _____ day of ____________, 19__ by and between
________________________________________________ ("Network Station Affiliate")
and NCT Group, Inc., a Delaware corporation with offices at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, XXX ("NCT") and NCT's wholly owned subsidiary,
XxxxxxxxxxxXxxxx.xxx, Inc., a Delaware corporation with offices at 0000 Xxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, XXX ("DMC") .
WHEREAS the Network Station Affiliate is engaged in the licensing of certain
business technology rights and concepts; and
WHEREAS NCT has developed and exclusively licensed to DMC the Digital
Broadcasting Station Software ("DBSS") system and related technology that has
been applied to the delivery of targeted visual and audio advertising medium for
distribution to commercial and professional sites, and DMC is the exclusive
licensee of certain United States and foreign patents and copyrights covering
various aspects of the DBSS system which both parties believe can be applied by
the Network Station Affiliate; and
WHEREAS the Network Station Affiliate is desirous of obtaining a non-exclusive
license from DMC to use the DBSS system in a total of ________ site(s) in the
existing health, education, hospitality and fitness networks (the "Networks") in
the New York DMA Territory (the "Geographic Station Area").
NOW THEREFORE, in consideration of the mutual covenants contained herein, as
well as other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS
As used herein, the terms described below have the following meanings.
1.1 "Affiliate" shall mean any legal entity which directly or indirectly, is
controlled by, is in control of, or under common control with the legal
entity with reference to which the term "Affiliate" is used.
1.2 "Confidential Information" shall mean the information described in Article
5 below and shall include the Deliverables and any and all samples, models,
prototypes, drawings, specifications, formulas, algorithms, software,
operating techniques, processes, data, technical and other information,
including any information relating to the status of research or other
investigations being conducted, whether given in writing, orally, or in
magnetic or other electronic processing form to the extent that such
information is not in the public domain through other than a breach of this
Agreement.
1.3 "Deliverables" shall mean the DBSS system, models, specifications, codes
and other documentation and materials described on Schedule A hereto to be
delivered by DMC to the Network Station Affiliate under Section 4.3 of this
Agreement.
1.4 "Improvement" shall mean any improvement, further invention, enhancement,
derivative product, technology, software, firmware, mask work, trade
secret, know-how, patent, patent application or other intellectual property
making use of, extending, based upon or relating to: (a) NCT Technology
(hereinafter "NCT Improvements") or (b) Network Station Affiliate
Technology (hereinafter "Network Station Affiliate Improvements") provided
however, that no Sponsor Technology shall be deemed an Improvement.
1.5 "Know-how", in general, will have its usual and accepted meaning, that is,
inter alia, all factual knowledge and information not capable of precise,
separate description but which, in an accumulated form, after being
acquired as the result of trial and error, gives to the one acquiring it an
ability to produce and market something which one otherwise would not have
known how to produce and market with the same accuracy or precision
necessary for commercial success.
1.6 "Licensed Patents" shall mean all those patents relating to DMC's DBSS
system technology owned by NCT and licensed to DMC as listed on Schedule B
hereto together with those patents issued under patent applications filed
or to be filed relating to NCT's DBSS technology and also listed on
Schedule B hereto including any continuations, continuations-in-part,
divisions, extensions, reissues, re-examinations or renewals of any of the
foregoing.
1.7 "Licensed Product" shall mean a specific Network Station Affiliate DBSS
system site installation embodying or employing all or part of the Licensed
Patents and/or the Licensed Technology.
1.8 "Licensed Technology" shall mean that unpatented technology relating to
NCT's DBSS system owned by NCT and licensed to DMC as described on Schedule
C hereto.
1.9 "Network Station Affiliate Technology" shall mean any and all existing and
future technology, other than Sponsor Technology, relating to the design,
development, manufacture and assembly of the Network Station Affiliate DBSS
system installation now or hereinafter owned or licensed by or to the
Network Station Affiliate and/or its Subsidiaries, including without
limitation all know-how, trade secrets, methods, operating techniques,
processes, software, materials, technical data, engineering information,
formulas, specifications, drawings, machinery and apparatus, patents,
patent applications, copyrights and other intellectual property relating
thereto.
1.10 "Geographic Station Area" or "Territory" shall mean a geographic area of a
physical size to be determined by the density of targeted sites in an area.
An area may be a portion of a city, a city, a surrounding area, a state or
several states combined. It is estimated that a Territory will contain a
Network or Networks each with a minimum of 1,000 potential large sites
(more than 1,000 people per day) and 2,000 small sites (less than 500
people per day). Geographic Station Areas or Territories exclude private
networks.
1.11 "NCT Technology" shall mean any and all existing and future technology,
other than Sponsor Technology, relating to the attenuation, isolation,
control and/or cancellation of noise and/or vibration and/or signals, now
or hereinafter owned or licensed by or to NCT and/or its Subsidiaries or
Affiliates, including without limitation all know-how, trade secrets,
methods, operating techniques, processes, software, materials, technical
data, engineering information, formulas, specifications, drawings,
machinery and apparatus, patents, patent applications, copyrights and other
intellectual property relating thereto.
1.12 "DMC Technology License" shall mean the license to the Licensed Patents and
the Licensed Technology granted by NCT or DMC to Network Station Affiliate
under Article 2 of this Agreement.
1.13 "Sponsor Technology" shall mean with respect to a party hereto (i) all
existing and future technology owned or licensed by or to a party and/or
its Affiliates or affiliates which, by virtue of contract restrictions
binding on such party, cannot be disclosed or transferred to the other
party on the same terms and conditions as NCT Technology or Network Station
Affiliate Technology, as the case may be; and (ii) all existing and future
technology which results from the combination of a party's technology and a
third party's technology, and which by virtue of contract restrictions
binding on the party in question, cannot be disclosed or transferred to the
other party on the same terms and conditions as NCT Technology or Network
Station Affiliate Technology, as the case may be.
1.14 "Technical Information" shall mean technical, design, engineering, and
manufacturing information and data pertaining to the design, manufacture,
commercial production and distribution of Licensed Products in the form of
designs, prints, plans, material lists, drawings, specifications,
instructions, reports, records, manuals, other written materials, computer
programs and software and other forms or media relating thereto.
ARTICLE 2. LICENSES
2.1 The DMC Technology License - License to Licensed Patents and Licensed
Technology. Subject to the terms and conditions of this Agreement, DMC
hereby grants to Network Station Affiliate a exclusive license in the
selected Networks within the selected Geographic Station Area or areas to
use the Licensed Products which incorporate or embody, or are covered or
claimed by, or are based on one or more of the Licensed Patents and/or
Licensed Technology as practiced.
2.2 Limitations. The DMC Technology License shall be non-exclusive as against
all others for the use and installation of Licensed Products in the
Geographic Station Area. Said licenses are limited to: (a) use,
distribution and installation of Licensed Products which practice, claim or
contain the Licensed Patents and/or Licensed Technology, and (b) the
Geographic Station Area.
2.3 Assignment and Sublicensing. The rights and licenses granted hereunder may
not be sublicensed, conveyed, assigned or otherwise transferred by the
Network Station Affiliate to any third party without DMC's prior written
consent in each instance. In addition, the Network Station Affiliate shall
not have the right to have Licensed Products manufactured for it by others.
2.4 Acceptance. The Network Station Affiliate hereby (i) accepts the rights
under the NCT Technology License granted to it by DMC under this Article 2,
and (ii) acknowledges that the rights that DMC has granted to Network
Station Affiliate hereunder are non-exclusive and limited to the use,
distribution and installation of Licensed Products in the Market subject to
the limitations set forth herein. 2.5 Patent and Copyright Notices. The
Network Station Affiliate shall xxxx or cause to be marked each Licensed
Product installed, leased, distributed or otherwise transferred and shall
cause all licenses, contracts and agreements with other parties for the
sale, lease, distribution, use or other disposition of Licensed Products to
contain a provision requiring, if feasible in the Network Station
Affiliate's reasonable opinion, such other parties to xxxx each Licensed
Product with a suitable legend identifying the Licensed Patents and
Licensed Technology with the appropriate patent or copyright notice, as the
case may be. If, in the Network Station Affiliate's reasonable opinion, the
Licensed Product is too small to have a legend placed on it, the Network
Station Affiliate will use all reasonable efforts to have a legend placed
on the software and/or packaging.
ARTICLE 3. FEES AND ROYALTIES
3.1 Fees. The Network Station Affiliate shall pay DMC _______________________
as a non-refundable license
fee.
3.2 Operation. At pricing no less favorable than that provided to any other
licensee, DMC (or its designee) shall be available to provide services and
equipment as requested from licensee for the operation of the licensed
sites, including (i) hardware and software installed at each site; (ii) the
maintenance and upgrades of the DBSS system and the hardware and software
installed at the licensed sites; (iii) providing sales and marketing
services for the sites; (iv) providing broadcast content, including music
and advertisements; (v) collecting revenues and, where appropriate,
remitting fees to the owners of installation sites. DMC agrees that the
Network Station Affiliate shall be entitled to receive 20% of the pre-tax
operating profit as a royalty on the operation of the licensed sites. Such
pre-tax operating profit, determined on the basis of generally accepted
accounting principles as followed by NCT and DMC during such quarter, shall
be remitted quarterly by the last business day of the following quarter to
the Network Station Affiliate.
3.3 Representations. NCT represents that the Network Station Affiliate will own
hereunder the licenses and rights required in order to conduct business
substantially as described in the DMC Business Plan dated 1/21/99 and
previously provided to the Network Station Affiliate in the Territory or
Geographic Station Area selected. All such licenses and rights shall be
valid and enforceable, and shall not conflict with the rights of any third
parties.
ARTICLE 4. DISCLOSURE OF INFORMATION, DATA AND KNOW-HOW
4.1 Disclosure. The parties shall disclose to each other such appropriate
Technical Information as may be reasonably required to accomplish the
purposes of this Agreement. It is agreed, however, that neither party shall
be obligated to disclose information, the disclosure of which has been
restricted by a third party.
4.2 Treatment. All disclosed Technical Information which is Confidential
Information (as defined in Article 5 below) shall be kept confidential by
the receiving party in accordance with the further provisions of Article 5
below and will remain the property of the disclosing party.
4.3 Deliverables. DMC shall deliver the Deliverables to the Network Station
Affiliate and in accordance with the delivery dates set forth on Schedule A
hereto.
ARTICLE 5. CONFIDENTIALITY
5.1 Definitions. Each party possesses and will continue to possess confidential
information relating to its business and technology which has substantial
commercial and scientific value in the business in which it is engaged
("Confidential Information"). Subject to Section 5.4, Confidential
Information includes, but is not limited to: Deliverables, Technical
Information, trade secrets, processes, formulas, data and know-how,
discoveries, developments, designs, improvements, inventions, techniques,
marketing plans, strategies, forecasts, new products, software
documentation, unpublished financial statements, budgets, projections,
licenses, prices, costs, customer lists, supplier lists and any other
material marked "Confidential Information", "Proprietary Information" or in
some other reasonable manner to indicate it is confidential. Any
Confidential Information disclosed between the parties hereto orally or
visually, in order to be subject to this Agreement, shall be so identified
to the receiving party at the time of disclosure and confirmed in a written
summary appropriately marked as herein provided within ten (10) days after
such oral or visual disclosure.
5.2 Treatment. Each party shall during the term of this Agreement and for a
period of five (5) years thereafter, hold in confidence and not disclose to
third parties except as specifically permitted under this Section 5.2 and
Section 5.4 below any and all Confidential Information of the other party
disclosed directly or indirectly to it by the other party.
Each party shall take the following minimum safeguards with respect to the
Confidential Information of the other party:
(a) only those of its employees who need to receive the other party's
Confidential Information in order to carry out the purposes of
this Agreement shall have access to such information and such
access shall be limited to only so much of such information as is
necessary for the particular employee to properly perform his or
her functions;
(b) all documents, drawings, writings and other embodiments which
contain Confidential Information of the other party shall be
maintained in a prudent manner in a secure fashion separate and
apart from other information in its possession and shall be
removed therefrom only as needed to carry out the purposes of
this Agreement;
(c) all documents, drawings, writings and other embodiments of
information the security or safekeeping of which are subject to
governmental regulations shall be kept in accordance with those
regulations;
(d) all employees and contractors who shall have access to
Confidential Information of the other party shall be under
written obligation to it; (i) to hold in confidence and not
disclose all Confidential Information made available to them in
the course of their employment; (ii) to use such Confidential
Information only in the course of performing their employment
duties; and (iii) to assign to their employer or the party
retaining them all inventions or improvements relating to their
employer's business and conceived while in their employer's
employ unless such assignment is prohibited by applicable law.
Notwithstanding the foregoing, a party receiving Confidential
Information of the other party may disclose to its subcontractors and
material and component suppliers so much of such Confidential
Information as is necessary to enable such party to perform its duties
and obligations related to the accomplishment of the purposes of this
Agreement provided that such subcontractors and suppliers are
obligated to such party in writing; (i) to hold in confidence and not
disclose such information; and (ii) not to use such information except
as authorized by such party.
In no event shall the party receiving Confidential Information of the
other party disassemble, reverse engineer, re-engineer, redesign,
decrypt, decipher, reconstruct, re-orient, modify or alter any
Confidential Information of the disclosing party or any circuit
design, algorithm, logic or program code in any of the disclosing
party's products, models or prototypes which contain Confidential
Information or attempt any of the foregoing without first obtaining
written consent of the disclosing party in each instance.
5.3 Return. All documents, drawings, writings and other embodiments of a
party's Confidential Information, as well as those produced, created or
derived from the disclosing party's Confidential Information which
incorporate the disclosing party's Confidential Information and all copies
thereof shall be returned promptly to it by the other party upon the
termination of this Agreement provided that the parties shall continue to
be bound by the provisions of Section 5.2 above.
5.4 Exclusions. Confidential Information shall not include information that:
(a) was at the time of disclosure in the public domain through no fault of
the party receiving it;
(b) becomes part of the public domain after disclosure to the party
receiving it through no fault of such party;
(c) was in the possession of the party receiving it (as evidenced by
written records) at the time of disclosure and was not acquired
directly or indirectly from the other party, or a third party, as the
case may be, under a continuing obligation of confidence of which the
party receiving it was aware;
(d) was received by the party receiving it (as evidenced by written
records) after the time of disclosure hereunder from a third party who
did not require it to be held in confidence and who did not acquire it
directly or indirectly from the other party under a continuing
obligation of confidence of which the party receiving it was aware;
(e) required by law, governmental regulations, court order or the rules of
any relevant securities exchange to be disclosed, but only to the
extent of such required disclosure; provided, that a party required to
so disclose Confidential Information shall use best efforts to notify
the other party of such potential disclosure so that such party may
seek a protective order or other remedies to maintain in confidence
any such Confidential Information;
(f) was developed independently by the receiving party and without the use
of any Confidential Information received from the disclosing party
under this Agreement; or
(g) was or is disclosed by the party owning it to third parties without
restrictions on use or disclosure comparable to those contained
herein.
ARTICLE 6. IMPROVEMENTS
6.1 NCT Improvements. In the event that the Network Station Affiliate
individually or together with NCT or DMC discovers, develops or creates any
NCT Improvements during the term of this Agreement, the Network Station
Affiliate promptly shall grant and assign, on a quitclaim basis, all of its
rights of ownership in such NCT Improvements to NCT, whether such NCT
Improvements are patentable or non-patentable under the laws of any
country, subject to any governmental approvals that may be required for
such grant back and assignment, it being understood that any such NCT
Improvements that are not made the subject of a patent shall constitute
part of the Licensed Technology licensed to the Network Station Affiliate
hereunder and that any such NCT Improvements that are made the subject of a
patent shall constitute one of the Licensed Patents licensed to Network
Station Affiliate hereunder.
In the event that NCT or DMC individually discovers, develops or creates
any NCT Improvements during the term of this Agreement which made use of,
extend, are based upon or relate to the Licensed Patents or the Licensed
Technology, then any such NCT Improvement that is not made subject of a
patent shall constitute part of the Licensed Technology licensed hereunder
and any such NCT Improvement that is made the subject of a patent shall
constitute a Licensed Patent licensed hereunder.
6.2 Network Station Affiliate Improvements. In the event that NCT or DMC
individually or together with the Network Station Affiliate discovers,
develops or creates any Network Station Affiliate Improvements during the
term of this Agreement, NCT and DMC promptly shall grant and assign, on a
quitclaim basis, all of its rights of ownership in such Network Station
Affiliate Improvements to the Network Station Affiliate, whether such
Network Station Affiliate Improvements are patentable or non-patentable
under the laws of any country, subject to any governmental approvals that
may be required for such grant back and assignment.
6.3 Joint Discoveries. In the event that the Network Station Affiliate and NCT
or DMC jointly discover, develop or create any intellectual property
whether patentable or non-patentable that is not an Improvement or is an
Improvement not covered by either Section 6.1 or 6.2 above, all rights and
interest in and to such intellectual property shall be owned equally by
Network Station Affiliate and NCT or DMC and each party hereby grants to
the other a royalty free, perpetual, irrevocable license to use and exploit
any such intellectual property.
6.4 Dual Improvements. In the event the Network Station Affiliate and NCT or
DMC jointly discover, develop or create any intellectual property whether
patentable or non-patentable that is or could be an Improvement under both
Sections 6.1 and 6.2 above, all rights and interest in and to such
intellectual property shall be owned equally by the Network Station
Affiliate and NCT or DMC and each party hereby grants to the other a
royalty free, perpetual, irrevocable license to use and exploit any such
intellectual property.
6.5 Individual Discoveries. In the event that either the Network Station
Affiliate or NCT or DMC individually discover, develop or create any
intellectual property whether patentable or non-patentable, that is not an
Improvement or is an Improvement not covered by either Section 6.1 or 6.2
above, all rights and interest in and to such intellectual property shall
be owned by the party discovering, developing or creating the same.
6.6 Further Assurances. The parties shall take all action legally permitted
that may be necessary or appropriate to assure full compliance with the
provisions of this Article 6 notwithstanding the fact that intellectual
property covered by this Article 6 may be discovered, developed or created
by an employee of one of the parties hereto.
ARTICLE 7. PAYMENTS
The Network Station Affiliate agrees to pay the amount set forth in Section 3.1
on or prior to _____________________.
ARTICLE 8. TERM
The term of this Agreement shall begin on the date hereof and, unless extended
or earlier terminated by the written agreement of the parties or the provisions
of Article 9 below, shall expire immediately upon either: (i) with respect to
rights granted under any patent hereunder, the expiration of that patent under
applicable law; or (ii) with respect to the other rights granted hereunder, upon
the expiration of the last to expire of the patents licensed hereunder.
ARTICLE 9. TERMINATION
9.1 General. This Agreement may be terminated prior to the end of the term
provided in Article 8 above under any of the following provisions of this
Article.
9.2 Breach. In the event of a material breach of this Agreement, if the
defaulting party fails to cure the breach within thirty (30) days, in the
case of a breach involving non-payment of amounts to be paid hereunder, or
sixty (60) days, in the case of any other kind of breach following its
receipt of written notice from the non-defaulting party specifying the
nature of the breach and the corrective action to be taken, then the
non-defaulting party may terminate this Agreement forthwith by delivering
its written declaration to the defaulting party that this Agreement is
terminated; provided any payment default will require the defaulting party
to pay interest in order to cover the default at the rate of the then
current prime rate at The Chase Manhattan Bank N.A.
9.3 Insolvency. If one of the parties becomes bankrupt or insolvent, or files a
petition therefor, or makes a general assignment for the benefit of
creditors, or otherwise seeks protection under any bankruptcy or insolvency
law, or upon the appointment of a receiver of the assets of a party
("defaulting party") then the other party shall have the right to
immediately terminate this Agreement upon written notice to the defaulting
party provided, in any such instance, that said right of termination shall
be postponed for as long as the defaulting party continues to conduct its
business in the ordinary course.
9.4 Survival of Certain Terms. Notwithstanding the termination of this
Agreement under any of the provisions of this Article 9, the terms and
conditions of Section 4.2 and Article 5, and those pertaining to the
ownership of rights acquired under Article 6 shall survive termination of
this Agreement and shall continue to be applicable and govern the parties
with respect to the subject matter thereof.
9.5 Document Return. Each party shall return to the other party within thirty
(30) days of the date of termination under either Article 8 or this Article
9 all of the secret and confidential information, patent applications, and
know-how received pursuant to this Agreement together with all other
tangible property loaned for the implementation of this Agreement.
ARTICLE 10. FORCE MAJEURE
In the event of enforced delay in the performance by either party of obligations
under this Agreement due to unforeseeable causes beyond its reasonable control
and without its fault or negligence, including, but not limited to, acts of God,
acts of the government, acts of the other party, fires, floods, strikes, freight
embargoes, unusually severe weather, or delays of subcontractors due to such
causes (an "Event of Force Majeure"), the time for performance of such
obligations shall be extended for the period of the enforced delay; provided
that the party seeking the benefit of the provisions of this paragraph shall,
within ten (10) days after the beginning of any such enforced delay, have first
notified the other party in writing of the causes and requested an extension for
the period of the enforced delay and shall use all reasonable endeavors to
minimize the effects of any Event of Force Majeure.
ARTICLE 11. APPLICABLE LAW
The terms and conditions of this Agreement and the performance thereof shall be
interpreted in accordance with and governed by the laws of the State of Delaware
and the United States of America.
ARTICLE 12. DISPUTE RESOLUTION
The parties agree to attempt in good faith to resolve any dispute arising out of
or in connection with the performance, operation or interpretation of this
Agreement promptly by negotiation between the authorized contacts of the
parties.
If a dispute should arise, the authorized contacts will meet at least once and
will attempt to resolve the matter. Either authorized contact may request the
other to meet within fourteen (14) days, at a mutually agreed time and place. If
the matter has not been resolved within thirty (30) days of a request being made
for such a meeting, the authorized contacts shall refer the matter to the
representatives of the parties who are responsible for matters at the policy or
strategic level who shall meet within fourteen (14) days of the end of the
thirty (30) day period referred to above, at a mutually agreed time and place.
If the matter has not been resolved within thirty (30) days of a request being
made for this meeting, the parties shall proceed as follows:
(a) Any action, suit or proceeding where the amount in controversy as to
at least one party, exclusive of the interest and costs, exceeds one
million dollars (a "Summary Proceeding"), arising out of or relating
to this Agreement or the breach, termination or validity thereof,
shall be litigated exclusively in the Superior Court of the State of
Delaware (the "Delaware Superior Court") as a summary proceeding
pursuant to Rules 124-131 of the Delaware Superior Court, or any
successor rules (the "Summary Proceeding Rules"). Each of the parties
hereto hereby irrevocably and unconditionally (i) submits to the
jurisdiction of the Delaware Superior Court for any Summary
Proceeding, (ii) agrees not to commence any Summary Proceeding except
in the Delaware Superior Court, (iii) waives, and agrees not to plead
or to make, any objection to the venue of any Summary Proceeding in
the Delaware Superior Court, (iv) waives, and agrees not to plead or
to make, any claim that any Summary Proceeding brought in the Delaware
Superior Court has been brought in an improper or otherwise
inconvenient forum, (v) waives, and agrees not to plead or to make,
any claim that the Delaware Superior Court lacks personal jurisdiction
over it, (vi) waives its right to remove any Summary Proceeding to the
federal courts except where such courts are vested with sole and
exclusive jurisdiction by statute and (vii) understands and agrees
that it shall not seek a jury trial or punitive damages in any Summary
Proceeding based upon or arising out of or otherwise related to this
Agreement and waives any and all rights to any such jury trial or to
seek punitive damages.
(b) In the event any action, suit or proceeding where the amount in
controversy as to at least one party, exclusive of interest and costs,
does not exceed One Million Dollars (a "Proceeding"), arising out of
or relating to this Agreement or the breach, termination or validity
thereof is brought, the parties to such Proceeding agree to make
application to the Delaware Superior Court to proceed under the
Summary Proceeding Rules. Until such time as such application is
rejected, such Proceeding shall be treated as a Summary Proceeding and
all of the foregoing provisions of this Section relating to Summary
Proceedings shall apply to such Proceeding.
(c) In the event a Summary Proceeding is not available to resolve any
dispute hereunder, the controversy or claim shall be settled by
arbitration conducted on a confidential basis, under the U.S.
Arbitration Act, if applicable, and the then current Commercial
Arbitration Rules of the American Arbitration Association
("Association") strictly in accordance with the terms of this
Agreement and the substantive law of the State of Delaware. The
arbitration shall be conducted at the Association's regional office
located closest to Network Station Affiliate's principal place of
business by three arbitrators, at least one of whom shall be
knowledgeable in Active Technology and one of whom shall be an
attorney. Judgment upon the arbitrators' award may be entered and
enforced in any court of competent jurisdiction. Neither party shall
institute a proceeding hereunder unless at least sixty (60) days prior
thereto such party shall have given written notice to the other party
of its intent to do so. Neither party shall be precluded hereby from
securing equitable remedies in courts of any jurisdiction, including,
but not limited to, temporary restraining orders and preliminary
injunctions to protect its rights and interests but such shall not be
sought as a means to avoid or stay arbitration.
(d) The Network Station Affiliate hereby designates and appoints
_____________________________, as its agent to receive service of
process in any Proceeding or Summary Proceeding. NCT and DMC hereby
designates and appoints Corporation Service Company with offices on
the date hereof at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000, as its
agent to receive such service. Each of the parties hereto further
covenants and agrees that, so long as this Agreement shall be in
effect, each such party shall maintain a duly appointed agent for the
service of summonses and other legal processes in the State of
Delaware and will notify the other parties hereto of the name and
address of such agent if it is no longer the entity identified in this
article.
ARTICLE 13. ANNOUNCEMENTS AND PUBLICITY; INDEPENDENT CONTRACTORS
Except for any disclosure which may be required by law, including appropriate
filings with the Securities Exchange Commission and the NASDAQ Stock Market,
Inc., neither party may use the other's name or disclose the terms of this
Agreement without the consent of the other, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, upon the execution of this
Agreement NCT and DMC may issue a press release in NCT's or DMC's customary
format and manner reporting the execution of this Agreement and its general
subject matter provided NCT or DMC shall have received the Network Station
Affiliate's prior approval thereof which approval shall not be unreasonably
withhold or delayed.
Each party to this Agreement is an independent contractor and neither shall be
considered the partner, employer, agent or representative of the other.
ARTICLE 14. SEVERABILITY
If any part of this Agreement for any reason shall be declared invalid or
unenforceable, such decision shall not affect the validity or enforceability of
any remaining portion, which shall remain in full force and effect; provided,
however, that in the event a part of this Agreement is declared invalid and the
invalidity or enforceability of such part has the effect of materially altering
the obligations of any party under this Agreement, the parties agree, promptly
upon such declaration being made, to negotiate in good faith to amend this
Agreement so as to put such party in a position substantially similar to the
position such party was in prior to such declaration.
ARTICLE 15. RIGHTS OF ASSIGNMENT; SUCCESSORS AND ASSIGNS
Neither NCT, DMC nor the Network Station Affiliate shall have any right to
assign this Agreement or any of their respective rights or obligations under
this Agreement to any third party except by operation of law or with the prior
written consent of the other party. In the event the Network Station Affiliate
wishes to assign any of its rights or obligations under this Agreement to an
Affiliate of the Network Station Affiliate, NCT's and DMC's consent will not be
unreasonably withheld. In the event NCT or DMC wishes to assign any of its
rights or obligations under this Agreement to an Affiliate of NCT or DMC, the
Network Station Affiliate's consent will not be unreasonably withheld. The
provisions of this Agreement shall inure to the benefit of, or be binding upon,
the successors and assigns of each party hereto.
ARTICLE 16. NOTICES
Any notices under this Agreement shall be in writing and shall be deemed
delivered on the date of delivery if delivered by personal service, or sent by
telecopy and confirmed by first class registered or certified mail, or same day
or overnight courier service with postage or charges prepaid and on the third
day following dispatch if sent only by first class registered or certified mail
or same day or overnight courier service with postage or charges prepaid. Unless
subsequently notified in writing in accordance with this Section by the other
party, any notice or communication hereunder shall be addressed to NCT as
follows:
NCT Group, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telecopy No: 0-000-000-0000
to DMC as follows:
XxxxxxxxxxxXxxxx.xxx, Inc.
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Legal Department
Telecopy No: 0-000-000-0000
to the Network Station Affiliate as follows:
_______________________
_______________________
_______________________
Attn: ______________
Telecopy No. __________
ARTICLE 17. TAXES
The Network Station Affiliate shall be solely responsible for any sales, use,
occupational, property or privilege taxes, duties, fees or other similar charges
imposed by any governmental authority in connection with the construction sale,
lease, distribution, use or other disposition by Network Station Affiliate of
Licensed Products or the Licenses granted hereunder. Any other taxes, including
income taxes based on royalties and other payments to NCT or DMC, shall be the
responsibility of NCT or DMC.
ARTICLE 18. INDEMNIFICATION
Each of NCT, DMC and the Network Station Affiliate agrees to indemnify, defend,
and hold harmless the other party and each of its officers, directors,
employees, agents, successors and permitted assigns (hereinafter referred to in
the aggregate in this section as the "Indemnified Party") against any and all
losses, claims, damages, liabilities, costs and expenses (including without
limitation, reasonable attorneys' fees and other costs of defense of every kind
whatsoever and the aggregate amount of reasonable settlement of any suit, claim
or proceeding) but excluding lost profits, opportunity costs, exemplary and
punitive damages, which the Indemnified Party may incur or for which the
Indemnified Party may become liable on account of any suit, claim or proceeding
purporting to be based upon a failure to perform obligations under this
Agreement to be performed by the other party (hereafter the "Indemnifying
Party") and its employees or agents. NCT and DMC shall also indemnify and defend
the Network Station Affiliate from and against any cause of action, suit or
claim brought or made against the Network Station Affiliate, or any of the
entities comprising the Network Station Affiliate, or any of their respective
officers, agents, or principals, and arising out of or resulting from the
execution, delivery, performance or enforcement of this Agreement or from any
transaction contemplated hereby. The Indemnified Party shall promptly advise the
Indemnifying Party of any such suit, claim or proceeding and shall cooperate
with the Indemnifying Party in the defense or settlement of such suit, claim or
proceedings which shall be controlled by the Indemnifying Party providing no
settlement shall be made without the consent of the Indemnified Party, which
consent shall not be unreasonably withheld. In any event, the Indemnified Party
shall furnish to the Indemnifying Party such information relating to such suit,
claim or proceeding as the Indemnifying Party shall reasonably request for use
in defending the same.
ARTICLE 19. MAINTENANCE AND DEFENSE OF LICENSED PATENTS
19.1 Enforcement of Patents. Throughout the term of this Agreement, NCT shall
maintain in force the Licensed Patents. In this connection, NCT shall
promptly pay all costs of any and all continuations, continuations-in-part,
divisions, extensions, reissues, re-examinations, or renewals of the
Licensed Patents, including, without limitation, the costs and expenses of
any and all attorneys, experts or other professionals engaged in connection
with any of the foregoing. In addition, NCT shall actively protect the
Licensed Patents and shall institute all such suits, actions or proceedings
for infringement of any of the Licensed Patents as may be reasonably
necessary in this regard. Unless NCT shall have received the advice of
counsel that success on the merits is reasonably certain, NCT shall be
excused from its duty to commence and/or may withdraw from any enforcement
action under the Licensed Patents and Network Station Affiliate shall then
be free to pursue enforcement of the Licensed Patents in its own name and
at its sole expense and risk, but only to the extent such infringement
occurs in the Geographic Station Area. In the event NCT fails to commence
an enforcement action or otherwise protect the Licensed Patents as
aforesaid after notice of possible infringement from the Network Station
Affiliate, the Network Station Affiliate shall be entitled by itself to
take proceedings in the name of and with the cooperation of NCT to restrain
any such infringement at the Network Station Affiliate's expense and for
the Network Station Affiliate's benefit. Where the Network Station
Affiliate proceeds alone and achieves an award from the official
enforcement forum in such an action brought by it, the Network Station
Affiliate shall be entitled to retain such award. However, any compromise
of such enforcement action or concession of invalidity or priority of
invention of any patent whether in connection with an enforcement action or
any other proceeding shall require NCT's participation and express prior
written approval. If NCT has elected to participate in and share in the
expense of any such enforcement action, any award shall be shared equally
by NCT and the Network Station Affiliate.
19.2 Infringement. NCT shall defend and save harmless the Network Station
Affiliate against any suit, damage claim or demand, and any loss, cost or
expense suffered as a result thereof (including reasonable attorneys fees),
based on actual or alleged infringement of any patent or trademark or any
unfair trade practice resulting from the exercise or use of any right or
license granted under this Agreement; provided that the Network Station
Affiliate (a) promptly notifies NCT of such suit, claim or demand and (b)
provides NCT with such assistance as NCT may reasonably request for the
defense or settlement of such suit, claim or demand, which NCT shall
control.
Notwithstanding the foregoing, NCT shall have no liability to defend or pay
damages or costs to the Network Station Affiliate with respect to any claim
of infringement which is based on an implementation designed or modified by
any third party or the Network Station Affiliate's use of the Licensed
Patents or the Licensed Technology for any purpose other than the design,
manufacture, use or sale of Licensed Products pursuant to this Agreement.
ARTICLE 20. WARRANTIES
NCT and DMC represents and warrants that it has the right, power and
authority to enter into this Agreement and to grant the licenses and other
rights contained herein to the Network Station Affiliate as herein provided
and that none of the same will breach or be in violation of any agreement,
license, or grant made with or to any other party by NCT or DMC and that to
the best of NCT's and DMC's knowledge and belief the Licensed Patents are
valid and do not infringe any other patent issued prior to the date hereof.
ARTICLE 21. DISCLAIMER
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NCT AND DMC HEREBY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF THE ACCURACY, RELIABILITY,
TECHNOLOGICAL OR COMMERCIAL VALUE, COMPREHENSIVENESS OR MERCHANTABILITY OF
THE LICENSED PATENTS, THE NCT TECHNOLOGY, OR THE LICENSED PRODUCTS, OR
THEIR SUITABILITY OR FITNESS FOR ANY PURPOSE WHATSOEVER. NCT AND DMC
DISCLAIMS ALL OTHER WARRANTIES OR WHATEVER NATURE, EXPRESS OR IMPLIED. NCT
AND DMC DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE RESULTING, DIRECTLY
OR INDIRECTLY, FROM THE USE OF THE LICENSED PATENTS, THE NCT TECHNOLOGY, OR
THE LICENSED PRODUCTS, OTHER THAN THOSE ARISING FROM CLAIMS OF INFRINGEMENT
OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES; WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THIS DISCLAIMER EMBRACES CONSEQUENTIAL
DAMAGES, LOSS OF PROFITS OR GOOD WILL, EXPENSES FOR DOWNTIME OR FOR MAKING
UP DOWNTIME, DAMAGES FOR WHICH THE NETWORK STATION AFFILIATE MAY BE LIABLE
TO OTHER PERSONS, DAMAGES TO PROPERTY, AND INJURY TO OR DEATH OF ANY
PERSONS.
ARTICLE 22. SUPPORT SERVICES
DMC shall provide the Network Station Affiliate with engineering,
maintenance and sales support with respect to Licensed Products to be
installed by or for the Network Station Affiliate under this Agreement to
the extent and at the rates set forth in Schedule D hereto.
ARTICLE 23. SCOPE OF THE AGREEMENT
This Agreement and the Schedules hereto constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements or understandings of the
parties with regard to the subject matter hereof. No interpretation,
change, termination or waiver of any provision hereof shall be binding upon
a party unless in writing and executed by the other party. No modification,
waiver, termination, recession, discharge or cancellation of any right or
claim under this Agreement shall affect the right of any party hereto to
enforce any other claim or right hereunder.
IN WITNESS THEREOF, the members of the Network Station Affiliate, NCT and
DMC have executed this Agreement effective as of the date first written
above.
NCT Group, Inc.
By:____________________________
Name:
Title:
XxxxxxxxxxxXxxxx.xxx, Inc.
By:____________________________
Name:
Title:
[Network Station Affiliate]
By:____________________________
Name:
Title:
Schedule A
Deliverables
Pursuant to Section 4.3 DMC will supply Network Station Affiliate with the
following Deliverables on or before the dates set forth below:
Deliverable Date
[To be completed]
Schedule B
Licensed Patents
Patents
[To be completed by NCT]
Patents Pending Under Filed Applications
[To be completed by NCT]
Disclosures for Which Patent Applications are to be Filed
[To be completed by NCT]
Schedule C
Licensed Technology
1. The unpatented technology contained in the patent applications filed or to
be filed and listed on Schedule B hereto.
2. The unpatented technology in NCT's possession which NCT is free to disclose
and which supports, amplifies, explains or enables the design or
manufacture of products embodying any of the claims of the Licensed
Patents.
3. The unpatented technology contained in the Deliverables listed on Schedule
A hereto.
4. [Other items to be completed by NCT.]
Schedule D
Support Services
DMC will provide engineering, maintenance and sales support services, subject to
personnel availability, at the following standard rates. Actual rates may vary,
and rates are subject to change without notice. Out-of-pocket, travel and
material expenses are additional and will be billed at cost.
Technician/Draftsman $ ____/Hour
Junior Engineer ____/Hour
Engineer ____/Hour
Senior Engineer ____/Hour
Manager ____/Hour
