STRATEGIC ALLIANCE AGREEMENT
BETWEEN
THIRDSPACE LIVING LIMITED AND CONCURRENT COMPUTER CORPORATION
This Strategic Alliance Agreement (the "Agreement") is made and entered
into by and between Concurrent Computer Corporation ("Concurrent"), with offices
at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000 and Thirdspace
Living Limited. ("Thirdspace"), with offices at Xxxxxxx Xxxxx, Xxxxxxxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxx, XX0 0XX, XX (collectively referred to herein as the
"Parties")
WHEREAS, Thirdspace is developing and marketing interactive media software
solutions and applications including its software products known as (i)
Thirdspace Application Server ("tAS") and (ii) Thirdspace Open Video Server
("OVS") (together referred to as the "Thirdspace Products") and
WHEREAS, Concurrent is developing and marketing multimedia video servers,
software and applications including, without limitation, the MediaHawk
integrated hardware and software video server system (the "Concurrent Products"
and together with the Thirdspace Products, the "Products");
WHEREAS, Concurrent and Thirdspace wish to enter into this Agreement to
integrate the Thirdspace Products and the Concurrent Products (referred to
collectively as "the First Phase Solution"), for the purpose of both Parties
either together or separately promoting, demonstrating and marketing the First
Phase Solution to customers and potential customers; and
WHEREAS, Concurrent and Thirdspace wish to have access to those portions of
the other party's Products as shall be necessary and required to (1) enable
integration of the Thirdspace Products and Concurrent Products to achieve the
First Phase Solution as outlined in the Statements of Work attached as Exhibit B
and (2) subject to successful achievement of the First Phase Solution, establish
discussion groups involving both Parties' representatives to discuss and use all
reasonable endeavours to agree to architectural principles for a tight
integration of the Thirdspace Products and the Concurrent Products and other
works required fully to integrate each other's Products so that the Thirdspace
Products and Concurrent Products can be run by a user in an integrated manner
("the Second Phase Solution") ( both elements of work as described in numbers
(1) and (2) of this recital being collectively referred to as the
"Integration"),
WHEREAS, Concurrent and Thirdspace agree that all intellectual property
rights (for the purposes of definition including any patent, registered design,
copyright, design right, trade xxxx (whether registered or not and including
goodwill), service xxxx, application to register any of the above, trade secret,
right in unpatented know how, right of confidence and any other intellectual or
industrial property right of whatsoever nature in any part of the world,
whensoever and howsoever arising for the full term thereof and including all
renewals, revivals and extensions thereof and defined as "IPR") in the Parties'
respective Products already existing at the date of this Agreement and/or before
commencement of the Integration ("Background IPR") shall be solely and
exclusively owned by that party owning it immediately prior to commencement of
the Integration
and that any IPR in any Technology developed by the Parties either separately or
jointly pursuant to the Integration ("Foreground IPR") shall be owned as set out
in Section 1 below. For the purposes of interpreting this Agreement the term
"Technology" means any and all additions, developments, improvements,
modifications, enhancements or adaptations not included as of the Effective Date
in the Parties' respective Background IPR.
NOW, THEREFORE, in consideration of the recitals above, which are herein
incorporated by this reference, and the mutual promises set forth below,
Concurrent and Thirdspace agree as follows:
1. COOPERATIVE RELATIONSHIP AND LICENSES.
1.1 LICENSE OF THIRDSPACE PRODUCTS TO CONCURRENT. Thirdspace hereby grants
to Concurrent and its Subsidiaries (as defined below) a
nontransferable, royalty free, nonexclusive, worldwide license to use
the Thirdspace Products and related documentation necessary and
required solely for:
(i) the marketing effort under this Agreement, agreed pursuant to
Exhibit A,
(ii) demonstration to customers and potential customers, under
mutually agreed conditions and at mutually agreed locations,
(iii) internal Concurrent training,
(iv) providing technical support to Thirdspace customers, solely in
conjunction with the Concurrent Products,
(v) quality assurance,
(vi) copying software elements of Thirdspace Products for
Concurrent internal archival or backup purposes only,
(vii) the Integration in the manner required to create the First
Phase Solution and
(viii) the joint development in accordance with Section 1.3 below
and the integration of the Second Phase Solution.
Thirdspace shall exclusively own and continue to exclusively own all
Background IPR in the underlying Thirdspace Products licensed under
this Section 1.1. The software elements of such Thirdspace Products
shall only be available to Concurrent in the form of object code. For
the purposes of interpreting this Agreement, the term "Subsidiary"
means any corporation, partnership or other corporate entity however
described, which is controlled by and continues to be controlled by
during the course of this Agreement, by another entity. "Control"
meaning for these purposes owning and continuing to own during the
course of this Agreement, in the aggregate, a beneficial interest in
assets, profits or losses of more than fifty percent (50%).
1.2 LICENSE OF CONCURRENT PRODUCTS TO THIRDSPACE. Concurrent hereby grants
to Thirdspace and its Subsidiaries a nontransferable, royalty free,
nonexclusive, worldwide license to use the Concurrent Products and
related documentation necessary and required solely for:
(i) the marketing effort under this Agreement, agreed pursuant to
Exhibit A,
(ii) demonstration to customers and potential customers, under
mutually agreed conditions and at mutually agreed locations,
(iii) internal Thirdspace training,
(iv) providing technical support to Concurrent customers, solely in
conjunction with the Thirdspace Products,
(v) quality assurance,
(vi) copying software elements of Concurrent Products for
Thirdspace internal archival or backup purposes only,
(vii) the Integration in the manner required to create the First
Phase Solution and
(viii) the joint development work in accordance with Section 1.3
below and the integration of the Second Phase Solution.
Concurrent shall exclusively own and continue to exclusively own all
Background IPR in the underlying Concurrent Products licensed under
this Section 1.2. The software elements of such Concurrent Products
shall only be available to Thirdspace in the form of object code.
1.3 FIRST PHASE SOLUTION The Parties shall commit sufficient resources and
personnel to complete the First Phase Solution in accordance with
their respective obligations as set out in Exhibit B and in accordance
with the timetable for completion and testing of the First Phase
Solution in accordance with the Statements of Work for the First Phase
Solution set out in Exhibit B.
1.4 SECOND PHASE SOLUTION. Subject to successful integration of the First
Phase Solution, the Parties will commit all necessary resources
required to discuss, agree, plan, schedule and implement the Second
Phase Solution (including without limitation, agreeing to the content
of any statement of work required to achieve the successful completion
of the Second Phase Solution, the contributions required by each party
to achieve such and the timetable within which such project is to be
achieved). The Parties anticipate that the Second Phase Solution will
include the writing of API's to certain of the Thirdspace Products and
certain of the Concurrent Products with other work to be agreed upon
between the Parties. When agreed, the Parties will each sign the
formalized final statement of work to achieve the Second Phase
Solution which shall automatically be appended to and become a part of
this Agreement as Exhibit C. Subject to agreement to this statement of
work the Parties will each commit sufficient resources and personnel
to ensure that the Second Phase Solution is fully achieved in
accordance with their respective obligations as set out in the final
statement of work for the Second Solution and within the timetable for
such work as agreed.
1.5 OWNERSHIP OF INTEGRATION TECHNOLOGY
1.5.1 Thirdspace New IP. Thirdspace shall solely, exclusively and
-----------------
absolutely own any and all Foreground IPR (including but not
limited to copyrights) in the Technology which it creates or
develops as sole author, inventor,
creator or developer as part of the works necessary to achieve
the Integration ("Thirdspace New IP"). Thirdspace hereby
grants to Concurrent and its Subsidiaries a non-exclusive, non
transferable, worldwide, irrevocable, fully paid up, non
royalty bearing license to such Thirdspace New IP with the
rights to exploit, sub-license, license, make, have made,
duplicate, operate, export, distribute, rent, lease and
dispose of only in combination with the Joint Technology
without being required to seek or obtain any further consent
from the other party and without any obligation to pay or
account for any proportion of any license or other revenues
received. If any Thirdspace New IP contains the IPR of any
third-party, Thirdspace will use all reasonable endeavours to
obtain the rights from said third-party and, if obtained,
grant to Concurrent a license to such third-party IP similar
to the license granted to Thirdspace New IP.
1.5.2 Concurrent New IP. Concurrent shall solely, exclusively and
-----------------
absolutely own any and all Foreground IPR (including but not
limited to copyrights) in the Technology which it creates or
develops as sole author, inventor, creator or developer as
part of the works necessary to achieve the Integration
("Concurrent New IP"). Concurrent hereby grants to Thirdspace
and its Subsidiaries a non-exclusive, non transferable,
worldwide, irrevocable, fully paid up, non royalty bearing
license to such Concurrent New IP with the rights to exploit,
sub-license, license, make, have made, duplicate, operate,
export, distribute, rent, lease and dispose of only in
combination with the Joint Technology without being required
to seek or obtain any further consent from the other party and
without any obligation to pay or account for any proportion of
any license or other revenues received. If any Concurrent New
IP contains the IPR of any third-party, Concurrent will use
all reasonable endeavours to obtain the rights from said
third-party and, if obtained, grant to Thirdspace a license to
such third-party IP similar to the license granted to
Concurrent New IP.
1.5.3 Jointly developed Technology. To the extent that any
----------------------------
Foreground IPR (including but not limited to copyrights) in
the Technology created or developed as part of the works
necessary to achieve the Integration (excluding all Thirdspace
New IP and all Concurrent New IP) arises or is obtained in
respect of Technology developed by the Parties as joint
authors, inventors, creators or developers or otherwise than
solely by either party (for example and without limitation
joint specification of technology in any feature
specification), such Technology shall be known as "Joint
Technology". The Parties hereby agree that any Joint
Technology shall be owned as follows:
(a) subject to Section 1.6, all Joint Technology shall
be owned by the Parties in equal and undivided
shares;
(b) subject to Section 1.6, each party and its
Subsidiaries will be (and are hereby) granted by
the other party and its Subsidiaries a
non-exclusive, non transferable, worldwide,
irrevocable, fully paid up, non royalty bearing
license of such Joint Technology with the rights
to exploit, sub-license, license, make, have made,
duplicate, operate, export, distribute, rent,
lease and dispose of any Joint Technology without
being required to seek or obtain any further
consent from the other party and without any
obligation to pay or account for any proportion of
any license or other revenues received.
1.6 PROTECTION OF JOINT TECHNOLOGY. The Parties will confer to determine
whether to seek patents or take other necessary steps to protect any
Joint Technology in such regions of the world as they shall jointly
determine. Concurrent shall bear the responsibility (but not the
entire cost) for undertaking agreed upon actions relating to such
Joint Technology. Unless either party chooses to exercise an option
set out below, all costs associated with obtaining, maintaining,
licensing, enforcing, and protecting said Joint Technology shall be
equally shared between the Parties:
a. In the event both Parties fail to agree upon actions to be taken
with respect to the protection or enforcement of the Joint Technology
through litigation, settlement, or other like actions, the party
wishing to abstain from such action shall bear no cost nor receive any
benefit which results from any such action(s). However, if required by
the laws of the jurisdiction in which proceedings are to be brought
the party wishing to abstain from such action shall lend its name to
any proceedings such that it shall not be liable for any costs or
expenses unless that party is required by law to enter an appearance
and take an active part in the proceedings as a joint owner of the
rights to be enforced.
b. In the event either party ("Filing Party") wishes to seek or
maintain patent protection or other such IPR protection for Joint
Technology in any given geographic region ("the Relevant Region") but
the other party ("Other Party") does not at that stage wish to proceed
with such filing and/or maintenance, the Filing Party shall give
written notice to the Other Party of its intention to file and/or
maintain such rights specifying the Relevant Regions in question
("Filing Notice") and thereafter shall have the right to seek and/or
maintain IPR protection in such the Relevant Region in it's own name.
The Other Party shall assist the Filing Party in seeking such patents
or securing such protection if requested, including securing the
execution of patent applications, assignments, and other appropriate
documents and papers, and the Filing Party shall pay or reimburse the
Other Party for any and all reasonable out-of-pocket expenses incurred
by the Other Party in connection with providing such assistance. The
Other Party also agrees to assign its rights in any such IPR in the
Relevant Region to the Filing Party.
c. Within a period of two calendar years from receipt of any Filing
Notice the Other Party shall be entitled to serve notice in writing on
the Filing Party that it wishes to be the joint owner of the patent or
other protection sought under the Filing Notice and in the Relevant
Region specified in the Filing Notice ("Joint Ownership Notice"). At
all times prior to the end of such period of two years the Filing
Party shall keep complete and accurate records of the filing
procedures carried out and all fees/costs incurred in connection with
it and will on request from the Other Party provide details thereof.
If the Other Party fails to serve a Joint Ownership Notice within such
period of two years the Other Party will be deemed to have
automatically assigned any and all proprietary interest to such rights
in the Relevant Region to the Filing Party and will be entitled to
receive a license from the Filing Party in the Relevant Region in
respect of all IPR being the subject of the Filing Notice on fair and
reasonable terms and conditions as agreed by the Parties in good
faith. If the Other Party serves a Joint Ownership Notice it will
within 10 business days of receipt of documentary evidence showing the
documentable fees incurred by the Filing Party in connection with such
filing pay 50% of such fees to the Filing Party. On receipt of such
payment the Filing Party will also execute all documents required to
vest joint, equal and undivided ownership in such Joint Technology in
any Relevant Region between the Filing Party and the Other Party.
d. For the avoidance of doubt the provisions of Section 1.6 b and c
will not affect either party's rights in relation to Joint Technology
outside the Relevant Region in question.
1.7 LICENSE RESTRICTIONS. The licenses and permitted usage described in
Sections 1.1 to 1.6 are limited to use under this Agreement as
follows. Subject to the provisions of Sections 1.1 to 1.6 and the
Reseller Agreement referred to in Section 2.4 below, no other copies
of the software elements licensed under those sections shall be made
without the licensor's prior written consent, all titles, trademarks
and copyright and restricted rights notices shall be reproduced in
such copies and all archival and backup copies of the Products are
subject to the terms of this Agreement. Subject to those Sections
neither Party may:
a. Distribute (electronically or otherwise), use in any manner not
specified under this Agreement, duplicate, or make the other Party's
Products available to third parties;
b. Market, rent, lease, sublicense, provide access to, assign,
transfer or otherwise dispose of the other Party's Products other than
as specified in this Agreement, unless first obtaining written
approval from the other Party;
c. Modify, copy, alter, adapt, translate, port or otherwise use the
other Party's Products; or
d. Cause or permit the reverse engineering, disassembly, or
decompilation of the other Party's Products or attempt to derive the
source code to any such Product by any means except as permitted by
law.
Each Party shall retain all title, copyright, and other proprietary
rights in its existing and developed Products, and any modifications
or translations thereof. Neither Party acquires any rights in the
other Party's Products other than those specified in this Agreement.
1.8 TECHNICAL SUPPORT. Notwithstanding the above, each Party is
responsible for providing technical support of its own Product during
the term of this Agreement. However, the Parties agree to use
reasonable commercial efforts to cooperate with each other when a
support issue arises during the course of activities undertaken
pursuant to this Agreement.
2. COOPERATIVE MARKETING RESPONSIBILITIES.
2.1 MARKETING OPTIONS. Subject to completing successful joint development
work and during the progress of the First Phase Solution, Concurrent
and Thirdspace shall work together to define a common set of marketing
messages to be used to market the Concurrent Products integrated with
the Thirdspace Products to customers. Either party may directly market
the integrated solution and related products as outlined and
restricted in Exhibit A. However, where the integrated solution will
be supplied to customers separately by Thirdspace and Concurrent and
not by one party as a system integrator or reseller, the Parties may
not independently set pricing or expectations of delivery schedule or
future enhancements of the other party's Products, without the express
written permission of the other party.
The Parties may participate jointly in any public relations activities
subsequently agreed to by the Parties. Each party shall be responsible
for its own costs in marketing its respective products and with
respect to the marketing activities set forth in this Section 2.
2.2 PREFERRED PARTNER. Thirdspace shall, whenever possible, present
Concurrent as Thirdspace's preferred partner for video server hardware
products. Subject to successful completion of the Integration
Concurrent shall, wherever possible, present Thirdspace as
Concurrent's preferred partner for core interactive television
applications for DSL network delivery opportunities and the Parties
will discuss and use all reasonable endeavours to agree whether or not
Thirdspace should be Concurrent's preferred partner for video server
operating systems in DSL network delivery opportunities. Further, the
Parties shall use all reasonable endeavours to complete the
Integration in a manner that results in a Product and/or an
Integration that is superior to that currently available and optimises
the functionality and productivity of the Parties' respective
Products.
The parties intend that over the period of this Agreement they will
collectively work towards and seek to exploit opportunities to market
and sell the integrated Thirdspace Products and Concurrent Products in
the cable, DSL and other network environments.
2.3 SALES. In addition to the 90 day sales and marketing plan set out in
Exhibit A (which the Parties shall commit such resources required to
ensure full execution of), Concurrent and Thirdspace shall work
together to identify sales prospects, and recommend or introduce
customers to the other party throughout the term of this Agreement. No
Party shall have a right to any commission, payment or compensation
from the other Party for sales of the Products of the other that
result from independent or joint sales activities. Any per-unit
licensing fees for Thirdspace Products shall be borne by mutual
customers, and not by Concurrent. Likewise, any per-unit licensing
fees for the Concurrent Product shall be borne by mutual customers,
and not by Thirdspace.
2.4 RESALE OPPORTUNITIES. The Parties anticipate that opportunities may
arise where one party will be positioned as a system integrator and,
thus, able to resell the other party's Products. In such
circumstances, the party acting as the system integrator may resell
the other Party's Products pursuant to the Reseller Agreement of even
date separately agreed upon and entered into by the Parties.
3. COSTS AND EXPENSES. Except as otherwise set forth in this Agreement, each
Party hereto shall bear all costs, risks and liabilities incurred by it,
arising out of its performance under this Agreement. No Party shall have a
right to any reimbursement, payment or compensation from the other Party
for products, resources supplied, or services performed by a Party in
furtherance of this Agreement, except as otherwise expressly provided under
this Agreement or otherwise mutually agreed upon by Parties.
4. COOPERATIVE MARKETING AND TECHNICAL MANAGERS. Each Party agrees to appoint
two managers to coordinate its respective activities under this Agreement
and to act as the primary point of contact for all activities hereunder.
The Cooperative Marketing Managers for each Party are as follows:
For Thirdspace: For Concurrent:
---------------- ----------------
Technical: Xxxx Xxxxxxxxxxx Technical: Xxx Xxxxx
(T) 44 1628 428920 T: (000) 000-0000
(F) 44 1628 428887 F: (000) 000-0000
(Cell) 00 0000 000000 Cell: (000) 000-0000
xxxx@xxxxxxxxxx.xx xxx.xxxxx@xxxx.xxx
Marketing Xxxxxxxxx Xxxxxx Marketing - Del Xxxxxx
Thirdspace Living Limited
(T) 44 7831 412877 T: (000) 000-0000 (NJ)
(F) 44 1628 428987 T: (000) 000-0000 (GA)
F:(000) 000-0000
Cell:(000) 000-0000 (NJ)
xxxxxxxxx@xxxxxxxxxx.xx xxx.xxxxxx@xxxx.xxx
The two Cooperative Technical Managers will be the individuals responsible
to plan and ensure that the Integration is successfully achieved. The two
Cooperative Marketing Managers will be the individuals responsible for
planning and implementing the overall relationship, working to resolve any
disputes that may arise, and for focusing priorities and resources
necessary to facilitate the success of this relationship. Concurrent and
Thirdspace may each change their appointed Cooperative Technical Manager or
Marketing Manager by written notification to the other party.
The Parties agree to hold monthly meetings to review the implementation of
the Agreement at times and locations to be agreed from time to time by the
Parties.
5. TERM OF AGREEMENT.
5.1 TERM. This Agreement shall become effective on the Effective Date set forth
below and shall remain in effect for 2 calendar years from the Effective
Date, unless the Agreement is terminated previously pursuant to Section 5.2
as provided below. Unless either Party elects to terminate this Agreement
at the end of the initial two-year term or on any renewal date thereafter
by giving the other Party at least six (6) months notice of its election to
terminate this Agreement (such notice to be given at least six (6) months
prior to the expiry of the initial term or any renewal date thereafter),
the initial term of this Agreement will be automatically renewed for
one-year terms, thereafter.
5.2 TERMINATION. Either Party may immediately terminate this Agreement by
providing written notice to the other Party (the "Defaulting Party")
if any of the following events have occurred and are continuing:
5.2.1 The Defaulting Party breaches any of the material covenants
and agreements contained in this Agreement and such breach has
not been cured within thirty (30) days of written notice.
Provided, however, if the breach is not curable within 30 days
and the party in breach is diligently working to cure such
breach, the period to cure may be extended.
5.2.2 The Defaulting Party dissolves, becomes insolvent or otherwise
terminates its existence,
5.2.3 The Defaulting Party commences any proceeding, whether
voluntary or involuntary, under any bankruptcy or insolvency
law or laws relating to the relief of debtors, readjustment of
indebtedness or reorganization or composition by or against
the Defaulting Party which proceeding, if voluntarily
commenced, is not dismissed within thirty (30) days of
commencement,
5.2.4 The Defaulting Party, for any reason, discontinues
substantially all of its business of providing or distributing
the Products.
5.2.5 An Event of Default under the Loan Stock Instrument and the
Debenture.
5.2.6 A Commercial Fallout has occurred as defined below and is
either not disputed (as set out in Section 5.4.3.2 below) or
is confirmed by an arbitral panel (as set out in Sections
5.4.4 to 5.4.8 below)
5.3 EFFECT OF TERMINATION. Except as provided in this Section 5.3, upon
termination of this Agreement, all rights and obligations of the
parties under this Agreement shall terminate, except such rights as
shall have accrued prior to termination of this Agreement. Upon
termination, the licenses granted under this Agreement other than
under Section 1.5 shall terminate, and each Party shall cease using
and shall promptly return the other Party's marketing materials and
Products. In addition to this section 5.3, Sections 1.5, 1.6,1.7, 3,
5.4, 6.1, 7, 8, 9, 11, 13, 16, and 14 shall survive termination of
this Agreement.
5.4 COMMERCIAL FALLOUT.
5.4.1 The Parties acknowledge that:
5.4.1.1 Concurrent is entering into a relationship with
Thirdspace for the primary purpose of gaining
access to worldwide video over DSL markets for
Concurrent Products through the relationships that
Thirdspace has with incumbent and competitive
telecommunication network providers ("the
Thirdspace Channel");
5.4.1.2 Concurrent is making an equity investment and
making loans to Thirdspace in the context of a
wider commercial relationship with Thirdspace and
with the intention of securing the Thirdspace
Channel to market for the Concurrent Products but
also recognising that although Concurrent will be
the preferred supplier of video servers and
systems to Thirdspace, the market into which
Thirdspace is marketing and selling its products
and services will require Thirdspace to
interoperate with other similar products and to
present to End Customers and to the Thirdspace
Channel suitable alternatives to the Concurrent
Products;
5.4.1.3 The Parties intend under this Agreement to produce
an integrated joint product for sale and resale
purposes into the Thirdspace Channel;
5.4.1.4 The commercial relationship between the Parties is
expected by them to evolve and develop and will be
reflected in further legal agreements and
arrangements, all of which will together with this
Agreement be taken as establishing and providing
evidence of their commercial relationship from
time to time if a Commercial Fallout (as defined
below) shall have occurred;
5.4.1.5 As a corporation listed on a recognised stock
exchange the market expectation of Concurrent is
that it will be inconsistent for Concurrent to be
required to retain its investment in and funding
of Thirdspace if the commercial relationship
between the Parties has fundamentally broken down
as a result of the default of Thirdspace or
because Thirdspace voluntarily and without cause
elects to terminate that commercial relationship.
5.4.1.6 Each of the Parties will use their respective
reasonable endeavours at all times during this
Agreement to ensure that the Concurrent Products
are market competitive in terms of pricing,
functionality and otherwise.
5.4.2 The Parties agree that the occurrence of any of the following
events shall result in a Commercial Fallout (each such
occurrence being a "Commercial Fallout"):
5.4.2.1 Thirdspace serves a notice to terminate under
Section 5.1 of this Agreement or to terminate the
Reseller Agreement under Section 3.0 thereof
("Reseller Agreement" shall mean the Agreement
entered into by the Parties on same date entitled
Reseller Agreement: Concurrent and Thirdspace
provided always that such termination by
Thirdspace of this Agreement or the Reseller
Agreement is not made pursuant to new commercial
agreements in place or to be put in place between
the Parties which replace or supplement this
Agreement and/or the Reseller Agreement); or
5.4.2.2 A reasonable third party reasonably concluding
that, other than by reason of Force Majeure or
resulting directly from a breach by Concurrent of
its obligations under Section 5.4.1.6, Thirdspace
has caused a fundamental breakdown in the
commercial relationship between the Parties by:
5.4.2.2.1 doing or omitting to do any material
matter or thing with the effect that the
Thirdspace Channel for the Concurrent
Products is extinguished or
significantly and adversely effected or
is reasonably anticipated to be
extinguished or significantly and
adversely effected for the foreseeable
future; or
5.4.2.2.2 failing or refusing to commit the
resources to accomplish the Integration
as herein described; or
5.4.2.2.3 rescinding any license granted herein or
under the Reseller Agreement or under
the Patent License Agreement between the
Parties dated February 28, 2002; or
5.4.2.2.4 failing or refusing to cooperate in the
protection of Joint Technology as
outlined in paragraph 1.6; or
5.4.2.2.5 failing or refusing to promote
Concurrent as the preferred provider of
video server hardware products; or
5.4.2.2.6 breaching its obligations to maintain
Confidential Information as required in
Section 8.
For the avoidance of doubt none of the following
matters will of themselves or by any combination
be deemed to constitute a Commercial Fallout:
(a) delays or cancellations to customer orders
(b) changes in Product demand
(c) economic conditions
(d) rapid technology changes
(e) the highly competitive environment in which
Thirdspace operates
(f) the entry of new competitors into the markets
at which the Thirdspace Channel is targeted.
5.4.3 If Concurrent determines that pursuant to 5.4.2 there has been
a Commercial Fallout, it shall serve a Commercial Fallout
Notice on Thirdspace. (Notice to be provided as stated in
Section 13 hereof.) Within ten (10) business days of receipt
of such Commercial Fallout Notice, Thirdspace shall inform
Concurrent in writing that it either disputes or accepts the
Commercial Fallout Notice. If Thirdspace disputes the
Commercial Fall-Out Notice, Concurrent may not deliver a Sell
Notice pursuant to Article 5.3 of the Articles before the
earlier of (x) the date on which the arbitrator determines
that a Commercial Fall-Out has occurred in accordance with
this Section 5.4 and (y) the date which is six (6) months
after the date on which Thirdspace received the Commercial
Fall-Out Notice.
5.4.3.1 If Thirdspace disputes the Commercial Fallout
Notice, the Parties shall commence arbitration as
provided below and the amount due under the Loan
Stock Instrument between the Parties shall become
due and payable ten (10) months after Thirdspace
received the Commercial Fallout Notice. Such
amount shall be paid by Thirdspace on such date
unless the arbitrator determines that a Commercial
Fallout had not occurred, in which case the amount
due under the Loan Stock Instrument would only be
due and payable by Thirdspace in accordance with
the terms of the Loan Stock Instrument. If
Thirdspace is liable under this Section 5 to but
fails to pay on such date, Thirdspace hereby
agrees to pay liquidated damages in the amount of
$4,000 per day that the payment due is late.
5.4.3.2 If Thirdspace accepts the Commercial Fallout
Notice, such Notice shall be deemed effective on
the day it was received by Thirdspace and
Thirdspace shall redeem or repurchase the Loan
Stock in accordance with the Articles on or before
the date which is twelve (12) months after the
date on which Thirdspace received the Commercial
Fall-Out Notice. If Thirdspace is liable under
this Section 5 to but fails to pay on such date,
Thirdspace hereby agrees to pay liquidated dames
in the amount of $4,000 per day that the payment
due is late.
5.4.4 Any dispute regarding whether or not there has been a
Commercial Fallout shall be solely and finally settled by a
board of arbitrators in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce (the "ICC Rules"), as such ICC Rules shall be
modified herein or by subsequent agreement of the Parties.
5.4.5 The arbitral tribunal will be composed of three arbitrators,
with each Party appointing a single arbitrator and the two
arbitrators so chosen selecting the third arbitrator. Each
Party shall select its arbitrator within fifteen (15) calendar
days after the date of the Commercial Fallout Notice. The
third arbitrator shall be appointed within 5 calendar days
thereafter (no later than 20 calendar days after notice the
date of the Commercial Fallout Notice.)
5.4.6 Arbitration Proceedings. All arbitration proceedings shall be
-----------------------
conducted in the English language pursuant to the ICC Rules,
as such ICC Rules shall be modified herein or by subsequent
agreement of the affected Parties. The arbitration shall take
place in New York, USA, at a location, date and time
reasonably acceptable to the Parties. The Parties shall use
all reasonable efforts to facilitate the arbitration by making
available to each other and to the arbitrators for inspection
and extraction all documents, books, records and, at any
hearing, personnel under their control as the arbitrators
shall determine to be relevant to the dispute and by
conducting arbitration hearings to the greatest extent
possible on successive, contiguous days. Nothing herein shall
waive or preclude any objection based upon any privilege to
production or testimony recognized by the law of the State of
Georgia.
5.4.7 The Parties shall conduct the arbitration proceedings with all
due diligence to conclude the proceedings as quickly as
possible. The arbitration hearing will be commenced within
sixty (60) calendar days after the date of the Commercial
Fallout Notice and the hearing will be completed and an award
rendered in writing within forty (40) calendar days after the
commencement of the hearing, unless the arbitrators determine
that exceptional circumstances justify delay; provided,
however, such delay shall not exceed twenty (20) calendar
days. The arbitrators shall not decide as amiable compositeur.
The arbitration award will be final and binding and may be
enforced in any court of competent jurisdiction.
5.4.8 Costs. The Parties shall bear their own costs incurred in the
arbitration and the fees of the arbitration panel shall be
split 50-50 by the Parties.
5.4.9 Confidentiality. The Parties shall at all times keep the
existence and process of arbitration pursuant to this Section
5.4.2 confidential and shall only disclose the existence of a
Commercial Fallout Notice or arbitration to its professional
advisers, Boards of Directors and new prospective funders of
Thirdspace and those of their employees who have a need to
know.
5.4.10 Exclusive Remedy. Arbitration of a Commercial Fall-Out
pursuant to this Section 5.4 shall be the exclusive remedy of
Thirdspace to dispute the occurrence of a Commercial Fall-Out.
However, for the avoidance of doubt, any failure by a Party to
comply with their respective obligations contained in 5.4.5 to
5.4.9 will be subject to the controlling law and jurisdiction
set out in Section 11.
6. PRESS RELEASES, OTHER PUBLICITY AND TRADEMARKS
6.1 PUBLICITY. Notwithstanding any other provision, neither party shall
issue any press release or otherwise make any public statement
regarding the existence or terms and conditions of this Agreement, nor
use the other party's name in any advertising or promotional materials
or publication or public statement of any kind, without such other
party's prior written consent given in such party's sole and absolute
discretion.
6.2 TRADEMARKS AND LOGOS. Each party may utilize each other's logos and
trademarks in its marketing and promotional materials in a manner
consistent with the other party's corporate identity guidelines, but
only with prior written consent and under terms and conditions as
agreed by the other party in each instance.
7. WARRANTIES.
7.1 WARRANTY. Each party warrants that it has the right to enter into this
Agreement and to perform its obligations hereunder and that all
information, data, and materials provided by it to the other under this
Agreement will be, to the best of its knowledge, accurate and complete in
all material respects. THE PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY,
SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY
WARRANTS TO THE OTHER PARTY THAT ITS PRODUCTS WILL MEET ITS CUSTOMERS'
REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE
BY ITS CUSTOMERS.
7.2 EXCLUSION. THE WARRANTIES STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, TERMS OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY
OR FITNESS FOR A PARTICULAR PURPOSE.
8. CONFIDENTIAL INFORMATION. By virtue of this Agreement, the Parties may have
access to information that is confidential to one another ("Confidential
Information"). Confidential Information shall include: (a) the Thirdspace
Products and Concurrent Products; (b) confidential information which is
disclosed by either party in writing and is marked as confidential at the
time of disclosure; or (c) confidential information which is disclosed by
either party in any other manner and is clearly identified as confidential
at the time of disclosure.
A party's Confidential Information shall not include information which: (a)
is or becomes a part of the public domain through no act or omission of the
other party; or (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (c) is lawfully disclosed to the
other party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. Neither party shall disclose
the results of benchmark tests or other evaluations of the other's Products
to any third party unless granted prior written consent to such disclosure
by the other party.
The Parties agree, both during the term of this Agreement and for a period
of three (3) years after termination of this Agreement, to hold each
other's Confidential Information in
confidence and to protect the disclosed confidential information by using
the same degree of care, but not less than a reasonable degree of care, to
prevent the unauthorized use, dissemination or publication of the
confidential information as they use to protect their own confidential
information of a like nature. Provided, however, that the Parties agree to
maintain Confidential Information that is trade secret pursuant to the
above maintenance and use requirements for as long as such information is
trade secret. The Parties agree not to make each other's Confidential
Information available in any form to any third party or to use each other's
Confidential Information for any purpose other than the implementation of
this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the provisions of this Agreement.
9. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER
IN AN ACTION IN CONTRACT OR TORT, IN ANY WAY ARISING FROM EITHER PARTY'S
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EVEN IF THE OTHER PARTY OR
ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NEITHER PARTY'S LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED $50,000 EXCEPT
FOR DAMAGES ARISING OUT OF PARAGRAPHS 1.5, 1.6, 1.7, AND 2.2 AND SECTIONS 6
AND 8 WHICH SHALL BE LIMITED TO $1,000,000.
10. ASSIGNMENT. The rights granted in this Agreement may not be assigned or
transferred by either party without the prior written approval of the other
party. Neither party shall be permitted to delegate its responsibilities or
obligations hereunder without the prior written approval of the other
party.
11. CONTROLLING LAW; JURISDICTION. The laws of the State of Georgia, U.S.A.,
shall govern this Agreement without regard for its conflict of laws
provisions. This Agreement shall be deemed to be executed in Atlanta,
Georgia. The Parties agree that the United Nations Convention on Contracts
for the International Sale of Goods is specifically excluded from the
application to this Agreement.
Except as to section 5.4.4, which is governed by the ICC Rules, in any
legal action relating to this Agreement, the Parties agree: (a) to the
exercise of jurisdiction by a state or federal court in Georgia; and (b)
that if either party brings the action, it shall be instituted in one of
the courts specified in Subparagraph (a) above and in the jurisdiction
provided herein.
12. RELATIONSHIP BETWEEN PARTIES. In all matters relating to this Agreement,
each party will act as an independent contractor. Neither party will
represent that it has any authority to assume or create any obligation,
express or implied, on behalf of the other party, nor to represent the
other party as agent, employee, or in any other capacity.
Nothing in this Agreement shall preclude either party from entering into
relationships with any other companies which are similar to the
relationship between the Parties except that Thirdspace is prohibited from
entering into a relationship with a video server and applications provider
that would entitle said provider to preferred status equal to or greater
than that provided in this Agreement but provided further that nothing in
this Agreement or otherwise will require Thirdspace to terminate, alter or
otherwise materially change its existing obligations to Silicon Graphics
Inc or nCUBE Corporation under agreements in place at the Effective Date
unless such existing obligations entitle a third party to preferred
provider status similar to that created pursuant to Paragraph 2.2. This
Agreement shall not preclude either party from independently developing or
marketing any products that are similar to or compete with the other
party's products provided however, that neither party shall use the other's
Confidential Information to develop, promote or market such similar or
competing products.
The Parties anticipate that during the term of this Agreement their
relationship will evolve and develop as customer, channel and partner
relationships are created in the DSL, cable and other broadband markets
that the Parties anticipate the relationship created by this Agreement will
position them jointly to exploit. On a regular basis (not less than every
six months during that term) the Parties will meet to consider whether to
reflect any such developments in a variation to this Agreement or in a new
and separate agreement.
13. NOTICE. All notices including notices of address changes, required to be
sent hereunder shall be in writing to the party's Cooperative Marketing
Manager identified in Section 4 above at the address provided in the
introduction hereto unless later changed by written notice. Notice shall be
deemed to have been given (a) on the delivery date if delivered personally
to the party to whom the same is directed; or (b) one business day after
deposit with a commercial overnight carrier, with written verification
receipt. To expedite matters, the Parties agree that they may each treat
documents faxed by one to the other as original documents; nevertheless,
either party may require the other to exchange original signed documents,
subsequently.
14. NON-SOLICIT OF EMPLOYEES. Each of the Parties agrees and undertakes with
the other party that, for a period of 12 calendar months from the date of
this Agreement, it will not solicit, endeavour to entice away from the
other party or offer employment (or any similar relationship) to any person
who, at the date of this Agreement, is or within the period of 12 calendar
months from the date of this Agreement becomes an employee of the other
party (or any of its group companies) or a contractor of services to the
other party (or any of its group companies) while such employee remains
employed by such other party (or any of its group companies) and for a
period of six months after such employment is terminated voluntarily by
such employee; provided, however, that this Agreement shall not prohibit
-------- -------
(i) any general advertisement or general solicitation that is not
specifically targeted at such persons or (ii) a party from employing a
person who previously was an employee of the other party (or any of its
group companies) if such person's employment was terminated by such other
party (or any of its group companies) and the party desiring to employ such
person did not
violate its obligations under this Section 14 with respect to such person's
employment while such person was employed by the other party (or its group
companies). Provided, however, upon mutual consent, this Section 14 may be
amended or abandoned with respect to particular employees.
15. ENTIRE AGREEMENT. This Agreement sets out the entire Agreement between the
Parties and supersedes prior proposals, agreements, and representations
between them, whether written or oral relating to the cooperative marketing
of the Concurrent Products and the Thirdspace Products. This Agreement may
be changed only if agreed to in writing signed by an authorized signatory
of each party.
16. FORCE MAJEURE. Neither party shall be liable to the other for any delay in
performing or for failure to perform its obligations under this Agreement
if such delay or failure results from any cause or circumstance whatsoever
beyond its reasonable control, provided that this does not result from the
fault or negligence of that party. If an event of force majeure occurs, the
date(s) for performance of the obligation affected shall be postponed for
as long as is made necessary by the event of force majeure. Each party
shall use its reasonable endeavours to minimize the effects of any event of
force majeure. For purposes of this Agreement, a "force majeure" means
labor disputes, fire, casualties and accidents, acts of the public enemy,
sovereign acts or regulations or any other causes beyond the reasonable
control of the parties.
The Effective Date of this Agreement is March 19, 2002.
THIRDSPACE LIVING LIMITED CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxxxx Xxxx By: /s/ Xxxx X. Xxxxxx
----------------- ---------------------
Name: Xxxxxx Xxxx Name: Xxxx X. Xxxxxx
Title: Director Title: President and Chief Executive
Officer
Date: March 19, 2002 Date: March 19, 2002
EXHIBITS
--------
Exhibit A Joint Marketing Activities
Exhibit B First Phase Solution Outline of Work
