EXHIBIT 10.27
LICENSE AND PRODUCTION AGREEMENT
This Agreement is made this 16th day of March, 2000 by and between 5th
Avenue Channel Corp. ("5th Ave"), a corporation organized under the laws of the
State of Florida and having its principal place of business at 0000 XX 000xx
Xxxxxx, Xxxxx Xxxxx, XX 00000, and IPO Financial Network, Corp. ("IPOF"), a
corporation organized under the laws of the State of New Jersey and having its
principal place of business at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
Collectively, 5th Ave and IPOF shall be termed "the Parties."
RECITALS
WHEREAS, 5th Ave is in the business of producing audio and video clips
on financial subjects and wishes to use film clips prepared by IPOF and upload,
archive, encode, market, broadcast and stream such clips; and
WHEREAS, IPOF is in the business of providing certain analysis and
information about Initial Public Offerings ("IPOs") and wishes to work together
with 5th Ave in the dissemination of film clips;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises set forth herein and for good and valuable consideration the exchange
and receipt of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS
"IPOF Clips" shall mean a film clip on the subject of IPOs, whether
live or recorded, prepared by IPOF expressly for use by 5th Ave. IPOF Clips may
contain more than one IPOF Clip. IPOF Clips shall include certain presentations
that have already been recorded, used or stored by others.
"Net Video Finance" shall mean the entirety of 5th Ave's film clip
archive including, but not limited to, the IPOF Clips.
TERMS
SECTION 1: OBLIGATIONS AND GRANTS FROM IPOF
1.1 IPOF grants 5th Ave the royalty free to use IPOF Clips on the
Internet for users around the world but subject to advertising revenues being
paid to IPOF for use of all said IPOF Clips, regardless of their form. Nothing
either in this grant or anywhere else in this Agreement shall be deemed to
convey to 5th Ave any rights to the content of the IPOF Clips including, but not
limited to, the grant of any copyright rights in and such content of the IPOF
Clips.
1.2 Notwithstanding IPOF's retention of all right, title and interest
in and to the content of the IPOF Clips including copyrights with respect
thereto, 5th Ave shall have the right to modify the IPOF Clips into any digital
electronic form it requires to further the purpose of this Agreement and to
combine the IPOF Clips with other images, photographs, animation, video, audio,
text user interfaces, software, advertisements and other information as 5th Ave
may choose so long as IPOF's image, stature and goodwill is unharmed. 5th Ave
shall also have the right to disseminate the IPOF Clips. Dissemination of the
IPOF Clips by 5th Ave to any other entity including any parent, subsidiary or
related entity to 5th Ave whatsoever shall first be approved by IPOF except for
dissemination through NetVideoNetwork and NewFinancialNews so long as such
entities remain wholly owned subsidiaries of 5th Ave. Such approval shall be
made in writing within five (5) business days of IPOF's receipt of notice from
5th Ave of its intention to disseminate. Failure of IPOF to object in writing to
dissemination by 5th Ave shall be deemed approval. IPOF's approval shall not be
unreasonably withheld but the Parties recognize that the principal purpose of
approval by IPOF is to ensure IPOF's image, goodwill and stature and that the
sole entity capable of making such a determination is IPOF.
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1.3 Use of IPOF Clips by 5th Ave shall include the right of 5th Ave to
incorporate IPOF Clips into 5th Ave's archives, web sites, video players and
television channel, and the right to market, distribute and make such clips
available to other web sites and individual Internet users consistent with the
terms of this Agreement.
1.4 The rights granted to 5th Ave include the non-exclusive right, upon
reasonable notice given to IPOF, to broadcast consistent with the terms of this
Agreement IPOF Clips live from IPOF on 5th Ave's television programming and
through the Internet.
1.5 IPOF agrees to install a video production facility at its own
expense and operate same at its own expense.
1.6 IPOF shall provide IPOF Clips to 5th Ave in the amount of at least
3 IPOF Clips per week, at least one of which will be market commentary for the
week. When possible at least 1 IPOF Clip shall relate to pricing. IPOF shall
have the option of producing no IPOF Clips for four (4) vacation weeks during
the one (1) year term of this Agreement, so long as such vacation weeks are not
more than two (2) consecutive weeks. If illness prevents IPOF from fulfilling
its production obligation, it shall promptly notify 5th Ave of the illness and
the anticipated time when provision of IPOF Clips can resume. Market commentary
and pricing content of regularly produced IPOF Clips shall be made available
first to 5th Ave. Nothing herein shall limit IPOF's right to provide information
to any news organization. IPOF's obligations, pursuant to this subparagraph is
contingent on the availability of relevant information upon which to produce an
IPOF Clip. It is the obligation of IPOF to signals containing IPOF Clips to the
Waterfront hub in New York City via a circuit provided by IPOF. IPOF's
obligation regarding transmission of IPOF Clips ceases upon signal arrival at
Waterfront. Thereafter, signal movement, delivery, dispatch, encoding and other
similar costs are the sole responsibility of 5th Ave. The Parties
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agree that an IPOF Clip shall be any segment containing information normally
provided by IPOF and that a single taping session could contain more than one
IPOF Clip which are sent to 5th Ave as a single unit.
SECTION 2: OBLIGATIONS OF 5TH AVE
2.1 5th Ave shall be solely responsible for all costs and expenses
associated with commercializing IPOF Clips transmitted to it. 5th Ave's
obligations include uploading, encoding, storage, indexing and streaming of IPOF
Clips and all related activities. 5th Ave shall use reasonable efforts to ensure
that IPOF Clips cannot be downloaded. 5th Ave shall ensure that production and
commercialization of IPOF Clips maintains the image, stature and goodwill of
IPOF. IPOF shall have the right to object to any production or communication of
IPOF Clips and upon notice to 0xx Xxx, 0xx Xxx shall discontinue any use,
dissemination, etc. of any IPOF Clip to which IPOF objects.
2.2 During any activities associated with the modification, production,
handling or treatment of IPOF Clips, 5th Ave shall ensure that notice is made to
the public that the copyright of the content of any IPOF Clip is in the name of
IPOF, shall include a proper copyright notice and shall maintain appropriate
trademark designations, E.G., use of the circled R ((R)) symbol consistent with
how notices and markings are received from IPOF.
2.3 5th Ave shall and hereby represents that it is able to maintain and
operate an Internet web site(s) under the domain name 0XXXXXXXXXXXXXXX.XXX and
XXXXXXXXXXXXXXXX.XXX, among others (collectively, "the Site"). The Site shall be
maintained as a state of the art Internet site, at least fully equivalent to the
Internet site maintained by IPOF at XXXXXXXXXXXX.XXX, or upon notice, to an
address designated by IPOF The Site shall specifically have the ability to
handle enough visitors simultaneously to
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meet the expectations and representations made by 5th Ave to IPOF in connection
with 5th Ave's business projections.
2.4 The Site shall maintain a direct link to a web site of IPOF. Unless
otherwise advised in writing, the IPOF web site to which 5th Ave must establish
a direct link is XXXXXXXXXXXX.XXX or, upon notice, to a web site designated by
IPOF.
2.5 5th Ave shall take reasonable steps necessary to effectively market
the Site to consumers in the United States and elsewhere, and shall at least in
significant part target consumers who are likely to be economically positioned
to take advantage of the content in the IPOF Clips.
2.6 5th Ave shall make IPOF Clips available to any visitor to the Site.
The location of the IPOF Clips on the Site shall be easily and plainly visible
by a consumer and must be clearly marked so that a user can at a glance know
where to click to obtain access to the IPOF Clips.
2.7 5th Ave shall ensure that IPOF has access to 5th Ave's Internet web
site areas that include IPOF Clips and to all versions of 5th Ave's television
programming that includes IPOF Clips in order to monitor 5th Ave's use of the
IPOF Clips.
2.8 5th Ave shall take reasonable steps within its power to ensure that
advertising revenue is maximized in connection with 5th Ave's use of the IPOF
Clips.
2.9 5th Ave hereby grants IPOF the non-exclusive, royalty free right to
make available, display and use IPOF Clips and/or Net Video Finance on web sites
of IPOF.
2.10 5th Ave shall exclusively use IPOF as the sole IPO site accessible
by icon from 5th Ave's site. 5th Ave agrees to use IPOF as its primary and
exclusive source for providing IPO information but IPOF recognizes that 5th Ave
will gather financial information from many sources which may incidentally
include IPO information.
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2.11 5th Ave shall take out appropriate insurance including liability
insurance indemnifying IPOF for $2,000,000 against suits from investors or
others in connection with information provided by IPOF to 5th Ave.
SECTION 3: INTELLECTUAL PROPERTY
3.1 The content and the copyrights associated therewith in any and all
IPOF Clips shall be and are retained by IPOF. The sole right given to 5th Ave is
the right to produce, edit and modify the visual and audio associated with any
IPOF Clip pursuant to paragraph 2.1 hereof but in no circumstances may 5th Ave
modify except for reasonable editing that does not effect content, claim credit
for, disparage, or indicate authorship or responsibility for content in IPOF
Clips. It shall be the obligation of 5th Ave to consistently provide notice and
advise any person or entity to which it distributes, sells or otherwise offers
an IPOF Clip of IPOF's rights.
3.2 5th Ave recognizes that the trademarks IPO FINANCIAL NETWORK,
IPOFN, the logo used by IPOF and the IPO FINANCIAL NETWORK marks (collectively
"the IPO marks") are all marks owned by IPOFN and that IPOFN and the logo used
by IPOF are registered with the United States Patent and Trademark Office and
must always be used in conjunction with the circled R (R) symbol appearing as a
superscript. 5th Ave further acknowledges that if given notice in writing by
IPOF of additional registrations it shall use the (R) symbol in the fashion set
forth herein. At least once on the Site and at least once in all marketing and
advertising materials, whenever the IPO marks appear, 5th Ave shall note that
the IPO marks are owned by IPOF. This can be achieved by use of substantially
the following sentence, "IPO Financial Network Corp. is the owner of trademarks
___."
3.3 IPOF acknowledges that 5th Ave is the owner of the trademarks
identified in paragraph 3.2 and to the extent IPOF may make reference to such
trademarks in its Internet site
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or marketing materials, it shall designate those trademarks with appropriate
trademark notice, as advised by 5th Ave.
3.4 Except as expressly permitted by this Agreement and this
subparagraph, 5th Ave shall not (a) use, copy, merge, install, transfer or
distribute any of the IPOF Clips, (b) sublicense, rent, sell, resell, lease or
otherwise distribute any of the IPOF Clips and (c) use any IPOF Clips in
violation of any applicable law including but not limited to that of privacy
laws, communication regulations and tariffs. 5th Ave shall have the right to
grant third parties a right to use the IPOF Clips provided such third parties
offer legitimate financial information and services through Internet sites.
3.5 Except as expressly permitted by this Agreement, 5th Ave shall not
modify any of the IPOF Clips.
3.6 5th Ave shall not post any IPOF Clips to any database or catalog
which infringes the intellectual property rights, misuses proprietary
information of a third party or which is made in furtherance of any illegal or
fraudulent scheme or activity.
3.7 The Parties recognize the intellectual property rights of the other
including but not limited to the rights specified herein. The Parties agree not
to challenge the intellectual right of the other. To the extent one party learns
of a potential infringement of the other party's rights, it shall promptly send
notice of same to the other party and shall cooperate as reasonably required by
the other party in the defense of or protection of any of the other party's
intellectual property pertinent to this Agreement. To the extent an assisting
party incurs out-of-pocket expenses associated with the cooperation contemplated
by this paragraph, such out-of-pocket expenses shall promptly be reimbursed
within thirty (30) days of receipt of notice of such expenses.
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3.8 All titles, trademark and copyright notices, disclaimers and
restrictions contained on or with IPOF Clips will be accurately reproduced on
each archival or backup copy, including on any storage media containing the IPOF
Clips if the IPOF Clips are archived or backed up on physical media. Attribution
should be in ways customary in the trade and visible to any user.
SECTION 4: MARKETING
4.1 5th Ave shall include the IPOF Clips in its Net Video Finance
archive. 5th Ave shall market its Net Video Finance archive by promoting it on
the Site and, on any 5th Ave financial site and television channels, by
licensing Net Video Finance to other web sites and by other means of
distribution suitable for the material.
4.2 All costs and obligations associated with marketing the IPOF Clips
and all activities in connection with Net Video Finance are and shall be solely
and exclusively those of 5th Ave and IPOF bears no relationship, responsibility
or obligation with respect thereto.
4.3 5th Ave shall undertake reasonable efforts to market the financial
component of the Site in connection with its marketing of the Net Video Finance
archive and other marketing activities in which it engages.
SECTION 5: FEES AND BILLING
5.1 5th Ave shall pay IPOF fifty (50%) percent of all Net Revenues
actually received by 5th Ave from advertising that will appear prior to, during
and subsequent to the playing by a viewer of any video or audio derived from an
IPOF Clip, or any video or audio containing content from an IPOF Clip, or an
IPOF Clip. Net Revenues are gross revenues less actually given chargebacks,
credits, refunds or holdbacks as well as applicable taxes resulting from the
distribution of IPOF Clips.
5.2 Payments shall be made on a calendar month basis and shall be
dispatched to IPOF no later than fifteen (15) days after the end of each
calendar month. Payments shall be
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accompanied by a royalty report clearly delineating (a) the gross revenue
received by 5th Ave in connection with the viewing of IPOF Clips, (b) all
charges reducing gross revenue to net revenue and (c) all tracking method
information pertinent to calculation of royalty. To this end, 5th Ave shall set
up a tracking method for capturing relevant advertising information. The royalty
report shall be verified by either a certified public accountant or an officer
of 5th Ave.
5.3 If inadvertent underpayment is made upon reconciliation of numbers
within a quarter immediately subsequent to the quarter being reconciled, such
reconciliation shall be paid within fifteen (15) days of the end of the
immediately subsequent calendar quarter plus a penalty of ten (10%) percent of
the underpayment. In the event that an underpayment exists for more than two
quarters in a row, IPOF shall have the right to immediately terminate this
Agreement pursuant to the provisions of Section 6 without terminating any of 5th
Ave's payment obligations.
5.4 At any time during regular business hours upon five (5) days
written notice to 5th Ave, IPOF shall have the right to audit 5th Ave in
connection with payment of royalty to IPOF and in connection with 5th Ave's
obligations under this Agreement. In the event IPOF shall request such an audit,
IPOF or its representatives shall be given full and complete access to any and
all information deemed reasonably necessary by an auditor to obtain information
pertinent to the audit. IPOF shall have the right to conduct such an audit not
more than four (4) times per year. If a discrepancy is found, a 10% penalty on
the underpayment shall be asserted. In the first occurrence of an underpayment
being found, if such underpayment is greater than 7.5%, 5th Ave shall pay IPOF
within ten (10) days IPOF's cost in conducting the audit. If on any subsequent
occurrences an underpayment is found greater than 5%, 5th Ave shall pay IPOF
within (10) days IPOF's costs in conducting the audit. 5th Ave shall have an
obligation to maintain its records with respect to royalties due IPOF for two
(2) years following the termination of this Agreement.
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5.5 5th Ave hereby grants to Xxxxx Xxxxxx, upon full execution of this
Agreement, 100,000 options (the "Options') for 5th Ave common stock at the
closing price of said stock on the effective date of this Agreement to wit:
March 16, 2000. Such Options shall fully vest and be delivered as follows:
33,333 options on March 16, 2000 to be delivered as soon as possible; 33,334
Options to be delivered on July 16, 2000; 33,333 Options to be delivered on
November 16, 2000. The shares issuable upon exercise of the Options shall be
subject to standard piggy-back registration provisions. The Parties shall
negotiate the grant of additional shares to Xxxxx Xxxxxx if this Agreement is
renewed.
SECTION 6: TERM AND TERMINATION
6.1 The term of this Agreement shall be one (1) year from the date of
the last signature appearing on this Agreement. This Agreement shall be renewed
upon notice received from the party requesting renewal not less than sixty (60)
days prior to the termination date. A party may send notice of termination at
any time prior to sixty (60) days before the termination date. If no notices are
sent with respect to termination or renewal, or conflicting notices are sent,
this Agreement shall terminate.
6.2 In the event any party is in default of its obligations hereunder,
this Agreement shall terminate thirty (30) days after notice of default unless
such default is cured to the reasonable satisfaction of the aggrieved party.
Cure shall not be unreasonably refused. If a cure is refused, notice must be
given of its refusal and a party in breach shall have seven (7) days to further
endeavor to cure this Agreement, otherwise this Agreement shall terminate.
6.3 Either party may terminate this Agreement by notice to the other
party if the other party becomes insolvent, makes a general assignment for the
benefit of creditors, files a voluntary petition for bankruptcy, suffers or
permits the appointment of a receiver for its business or assets or becomes
subject to any proceedings under any bankruptcy or insolvency
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law, whether domestic or foreign, or has wound up or liquidated voluntarily or
otherwise. In the event that any of these events occur, the party directly
involved in the events listed above shall immediately give notice to the other
party of its occurrence.
6.4 Upon termination of this Agreement for cause, 5th Ave shall have
five (5) business days to remove IPOF Clips from the Site and 5th Ave shall have
thirty (30) days to remove IPOF Clips from the Net Video Finance archive. During
the term of removal of the IPOF Clips, payments shall be made to IPOF consistent
with the terms of this Agreement.
SECTION 7: ADVERTISING OF THE RELATIONSHIP OF THIS AGREEMENT
7.1 Each party may disseminate through marketing or advertising the
fact that the Parties have reached a business arrangement so long as none of the
specific terms regarding the Parties' obligations to each other are disclosed.
In the event that such dissemination occurs, the party responsible for such
dissemination shall ensure that such marketing and advertising are factual,
lawful and fully consistent with the image, stature and goodwill of the other
party. To the extent that such marketing or advertising results in allegations
of unlawful behavior or litigation of any kind, the party responsible for such
marketing or advertising shall indemnify the other party consistent with Section
10 of this Agreement. If one party disapproves of the marketing or advertising
of the other party, it shall notify the other party of its disapproval in
writing. If Agreement between the parties is not reached within ten (10) days
after the receipt of notice, the party receiving such notice shall cease the
objectioned activities. The Parties shall always use the other party's names,
logos, trademarks or service marks in a manner commensurate with the goodwill,
stature and image of such names, logos, trademarks or service marks.
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SECTION 8: REPRESENTATIONS AND WARRANTIES
8.1 IPOF represents and warrants that to its knowledge (a) it has all
intellectual property rights associated with the content it is providing to 5th
Ave that are necessary for 5th Ave to market, distribute and license the IPOF
Clips in accordance with the terms of this Agreement and (b) the IPOF Clips are
not defamatory nor do they violate a third party's right of privacy.
8.2 5th Ave represents and warrants that it has the authority,
financing, wherewithal, desire and skill to fulfill its obligations pursuant to
this Agreement and that it has all rights, intellectual property and otherwise,
and licenses to enter into and perform its obligations hereunder and that it
will do so in a manner consistent with the good character associated with IPOF.
SECTION 9: DISCLAIMERS
9.1 IPOF DOES NOT REPRESENT OR WARRANT (a) the accuracy, correctness,
integrity, completeness or timeliness of the IPOF Clips and/or (b) that the IPOF
Clips comply with any requirements of any private or public organization or
association, or the securities, laws or regulations of any jurisdiction. IPOF is
not responsible for and expressly disclaims any obligation on its part with
respect to any investment decisions, damages or other losses resulting from use
of any information obtained from or from the use of IPOF Clips.
9.2 IPOF Clips are provided "as is," and all faults and the entire risk
as to the satisfactory quality of the IPOF Clips and the content thereof is
disclaimed by IPOF. IPOF disclaims all warranties and/or conditions, express or
implied, including but not limited to the implied warranties or conditions of
merchantability, fitness for a particular purpose, quiet enjoyment, accuracy of
IPOF Clips and contents, absence of viruses and damaging or disabling code, as
well as implied warranties arising from course of dealing or course of
performance.
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9.3 IPOF expressly disclaims any obligation, express or implied, to
operate its Internet web sites in their current form or that any materials on
its Sites or servers are free from errors, defects, flaws, omission or the like.
9.4 IPOF disclaims any warranty or representation that IPOF Clips will
meet 5th Ave's requirements or that use and access to the IPOF Clips will be
uninterrupted or error free, or that defects in the IPOF Clips, if any, will be
correctable or corrected, or that the IPOF Clips' format is compatible with any
particular platform.
SECTION 10: INDEMNITY
10.1 IPOF shall defend, indemnify, save and hold 5th Ave and each of
its officers, directors, employees, representatives and agents harmless of, from
and against any and all liability, claims, causes of action, judgments, suits,
losses, damages and expenses and shall represent each and every one of the
foregoing in connection with, arising out of or relating to any claim made by a
third party that the content of IPOF Clips as such clips were provided to 5th
Ave violate the rights of such third party. The indemnification granted
hereunder is contingent upon a written notice being received from 5th Ave of a
third party's claim. The rights and obligations of IPOF pursuant to this
paragraph shall be extinguished if 5th Ave does not cooperate fully and
completely with IPOF and its counsel, acts in any way contrary to IPOF's
interests and/or cooperates with the third party alleging infringement. In the
event that IPOF indemnifies 5th Ave, IPOF shall have sole settlement authority.
Nothing herein shall prevent 5th Ave from hiring counsel of its own choosing at
its own expense so long as such counsel does not interfere with counsel of
IPOF's choosing or appear on 5th Ave's behalf. Upon written notice, 5th Ave may
opt out of the indemnification provided by this paragraph and proceed in any
litigation with counsel of its own choosing. In this event, IPOF shall have no
indemnification responsibility or obligation to 5th Ave.
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10.2 In the event that any event triggers indemnification of 5th Ave by
IPOF pursuant to paragraph 10.1 hereof, IPOF may at its election terminate this
Agreement and cease providing IPOF Clips to 5th Ave. In this event, termination
shall proceed pursuant to Section 6 hereof. Termination cannot occur in the
event of litigation being brought by a disgruntled investor based on information
gleaned from an IPOF Clip or information provided 5th Ave by IPOF.
10.3 Nothing herein shall be deemed to impose an indemnification
obligation of any kind whatsoever upon IPOF with respect to any event, tort or
action with respect to the IPOF Clips that may arise from any action of 5th Ave
pursuant to their obligations under this Agreement or the end result of the IPOF
Clips following modification, distribution or the like by 0xx Xxx.
00.0 0xx Xxx hereby agrees to defend, indemnify, save and hold IPOF and
each of its officers, directors, employees, representatives and agents harmless
of, from and against any and all liability, claims, causes of action, judgments,
suits, losses, damages and expenses including but not limited to reasonable
attorneys' fees and expenses and costs incurred prior to assumption by 5th Ave
of IPOF's defense for which any of them may become liable or may incur or be
compelled to pay in any action, claim or proceeding against any of them, for or
by reasons of any acts whether of omission or commission, that may be committed
or suffered by IPOF or any of its officers, directors, shareholders, agents,
representatives or employees in connection with, arising out of or relating to
5th Ave's modification, editing, distribution or other transformation of IPOF
Clips and/or any claims by any person or entity in connection with 5th Ave's use
of the IPOF Clips, or of the 5th Ave Internet web site; and any breach by 5th
Ave of terms, covenants, representatives, representations and warranties set
forth in this Agreement.
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10.5 Neither of the Parties shall be obliged to indemnify the other if
the action of the other willfully violates the law.
SECTION 11: CONFIDENTIALITY
11.1 The Parties acknowledge that in the course of their dealings
hereunder each may acquire information about the other, its business activities
and operations, its technical information and its trade secrets, all of which
are proprietary and confidential (the "Confidential Information"). Confidential
Information shall be designated in writing as such. Both Parties agree that the
terms of this Agreement shall be deemed Confidential Information of each party.
11.2 Each party hereby agrees that: (a) all Confidential Information
shall remain the exclusive property of the owner; (b) such party shall maintain
and shall use prudent methods to cause its employees and agents to maintain the
confidentiality and secrecy of the other's Confidential Information; (c) such
party shall use prudent methods to ensure that its employees and agents do not
copy, publish, disclose to others or use (other than pursuant to the terms
hereof) the other's Confidential Information; and (d) such party shall return or
destroy all copies of other's Confidential Information upon request of the other
party. Notwithstanding the foregoing, Confidential Information shall not include
any Information to the extent it: (i) is or becomes a part of the public domain
through no act or omission on the part of the receiving party; (ii) is disclosed
to third parties by the disclosing party without restriction on such third
parties.; (iii) is in the receiving party's possession, without actual or
constructive knowledge of an obligation of confidentiality with respect thereto,
at or prior to the time of disclosure under this Agreement; (iv) is disclosed to
the receiving party by a third party having no obligation of confidentiality
with respect thereto; (v) is independently developed by the receiving party
without reference or access to the disclosing party's Confidential Information;
or (vi) is released from confidential treatment by written consent of the
disclosing party. Notwithstanding the
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foregoing, portions of a party's Confidential Information may be disclosed
pursuant to the request of a governmental agency or third party if such
disclosure is required by operation of law, regulation or court order, provided
the receiving party gives the disclosing party prior written notice of such
proposed disclosure sufficient to enable the disclosing party to obtain an
appropriate protective order, if it so desires.
SECTION 12: MISCELLANEOUS
12.1 NOTICES. All notices, requests and other communications under this
Agreement shall be in writing and be delivered in person, or sent by certified
mail, return receipt requested, overnight courier service, or by facsimile to
the address or facsimile number of the party set forth in the beginning of this
Agreement, or to such other addresses or numbers as may be stipulated in writing
by the Parties pursuant hereto. Unless otherwise provided, notice will be
effective on the date it is officially recorded as delivered by return receipt
or equivalent or by facsimile confirmation date. Notices shall be sent to:
For IPOF, to: Xxxxx Xxxxxx
POF Financial Network Corp.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxxx X. Sales, Esq.
Xxxxxx, Xxxxx, Littenberg, Xxxxxxxx
& Mentlik, LLP
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
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For 5th Ave: Xxxx Xxxxxx, Chief Operating Officer
5th Ave Channel Corp.
0000 XX 0000x Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax- 000-000-0000
e-mail: XXXXXXX@0XX.XXX
12.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with any
appendices or other attachments hereto, sets forth the entire understanding
between the Parties and supersedes any and all oral or written agreements or
understandings between the Parties as to the subject matter of this Agreement.
This Agreement may be modified only in a document signed by both Parties. This
Agreement shall be binding upon and shall inure to the benefit of the
undersigned Parties and their respective successors and permitted assigns.
12.3 ASSIGNMENT. Either party may assign the benefits and obligations
of this Agreement. This Agreement shall apply to, inure to the benefit of and be
binding upon the Parties hereto and upon their permitted successors in interest
and permitted assigns.
12.4 THIRD PARTY BENEFICIARIES. The Parties acknowledge that there are
no intended third party beneficiaries of this Agreement.
12.5 FORCE MAJEURE. In no event shall either party be liable to the
other for any delay or failure to perform hereunder, which delay or failure to
perform is due to causes beyond the control of said party including, but not
limited to, government restrictions, exchange or market rulings, labor strike,
war, act of civil or military authority, sabotage, epidemic, flood, earthquake,
fire, other natural disaster, or any other event, condition or occurrence beyond
the reasonable control of such party.
12.6 WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall in no way affect
the full right to require such performance at any time thereafter, nor shall the
waiver by either party of a breach of any
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provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or as a waiver of the provision itself.
12.7 SEPARABILITY. If any provision of this Agreement or the
application thereof to any person or circumstances shall to any extent be held
to be invalid or unenforceable, the remainder of the Agreement, or the
application of such provisions to persons or circumstances as to which it is not
held to be invalid or unenforceable, shall not be affected thereby, and each
provision shall be valid and be enforced to the fullest extent permitted by law.
12.8 RELATIONSHIP OF THE PARTIES. This Agreement does not and shall not
be deemed to constitute a partnership or joint venture between the Parties and
neither party nor any of their respective directors, officers, employees or
agents shall, by virtue of the performance of their obligations under this
Agreement, be deemed to be an agent or employee of the other.
12.9 INTERPRETATION. This Agreement shall be interpreted in accordance
with the ordinary rules of contract law and no determination of meaning shall be
made with respect to whether or not a particular party drafted this Agreement or
a particular portion thereof.
12.10 NO PRIOR DRAFTS. Prior unexecuted drafts of this Agreement may
not be used to interpret the intentions of the Parties to this Agreement.
12.11 EXPORT. 5th Ave acknowledges that the IPOF Clips provided under
this Agreement may be subject to U.S. export laws and regulations and any use or
transfer of IPOF Clips may need to be authorized under those regulations. 5th
Ave agrees that it will not use, distribute, transmit or transfer IPOF Clips
even if incorporated into other products except in compliance with U.S. export
regulations. For the purposes of this paragraph, "export" and "re-export" means
transferring or releasing to another country or to a national of another
country, wherever that person is located, by any means.
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12.12 INJUNCTIVE RELIEF. Each party acknowledges that their legal
remedies (including the payment of damages) would not adequately compensate the
other party for any breach by second party of any provisions of this Agreement
regarding the ownership, use, copying, distribution, confidentiality or
nondisclosure of the IPOF Clips or Confidential Information, and that either
party would suffer continuing and irreparable injury to its business as a direct
result of such breach. Therefore, in the event of any such breach, each party
consents to entry of any injunctive relief necessary to prevent or cure such
breach (including temporary and preliminary relief, and relief by order of
specific performance), without posting of bond or other security or proof of
irreparable harm.
12.13 GOVERNING LAW; PLACE FOR DISPUTES. 5th Ave may not bring a legal
action under this Agreement more than one (1) year after the cause of action
arose.
12.14 SURVIVAL. Notwithstanding the termination or expiration of this
Agreement, the applicable rights and obligations in Sections 9, 10, 11 and 12,
shall survive termination or expiration of this Agreement.
12.15 ARBITRATION. Any dispute or controversy between the Parties to
this Agreement relating to or arising out of this Agreement, including but not
limited to matters reserved for mutual agreement shall be settled by Arbitration
with the rules of the (1) New York Stock Exchange, if NYSE Arbitration is
available, and (2) the American Arbitration Association in all other cases to be
located in Union County, New Jersey.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed, and do each hereby warrant and represent to the other that their
respective signatory whose signature appears below has been and is on the date
of this Agreement duly authorized by all necessary and appropriate corporate
action to execute this Agreement.
5th Ave Channel Corp. IPO Financial Network, Corp.
By: By:
---------------------------- ---------------------------------------
Name: Xxxxxx Xxxxx, President Name: Xxxxx Xxxxxx, President
Date: Date:
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