Exhibit 10.3
LICENSE AGREEMENT
This Agreement is made and entered into as of November 2, 1999,
("Commencement Date") by and between CANAL+, a French societe anonyme organized
under the laws of France, whose registered office is at 85/89, Quai Andre
Citroen, France, ("CANAL+")
and
ISES Corporation, an Iowa based company organized under the laws of Iowa,
USA, whose registered office is at 2600 72nd St., Suite C, Des Moines, IA 50322,
U.S.A., "Customer"),
collectively referred as the "Parties".
WHEREAS, CANAL+ has developed a digital interactive TV operating
environment and products called STUDIO + to provide application developers with
means to offer applications on digital interactive TV networks licensed by
CANAL+ under the MEDIAHIGHWAY technology, such applications using the JAVA(1)
programming language, and
WHEREAS, Customer as an application developer desires a license to make use
of certain software of CANAL+, desires to purchase from CANAL+ certain hardware
decoder with embedded specific debugging software as well as an STB simulator
(hereafter "Hardware"), and desires to receive from CANAL+ technical support
associated to the software.
Based on the foregoing and for the consideration stated herein, the Parties
agree as follows:
ARTICLE 1 - DEFINITIONS
1.1. "Designated Site" means Customers location specified in Exhibit A, which
shall be the location of the designated Licenses Software.
1.2. "Designated Equipment" means the minimum hardware configuration specified
in Exhibit A onto which the Licenses Software will be installed by
Customer.
1.3. "Licensed Software" means the beta version software specified in Exhibit A
currently available on DAT or CDROM, installed on the Designated Equipment
and its documentation.
1.4. "Deliverables" means the Hardware as containing the embedded specific
debugging software and Licensed Software specified in Exhibit A which are
provided by CANAL+ to Customer.
- ----------
(1) JAVA is a registered trademark of SUN MICROSYSTEMS INC.
1.5. "Licensed Operator" means these operators duly licensed by CANAL+ under
CANAL+ interactive technology called MEDIAHIGHWAY.
1.6. "Update" means a modification of the Licensed Software that:
(i) improves the manner in which the Licensed Software performs existing
functions; or
(ii) corrects defects in the Licenses Software.
1.7. "Upgrades" means a modification of the Licenses Software that enables the
Licenses Software to provide services or functions it could not previously
provide.
ARTICLE 2 - LICENSE AND PURCHASE
2.1. The Hardware included in STUDIO + is sold to Customer, and Customer may use
or dispose of it as it sees fit. The Licensed Software is licensed to
Customer subject to the terms hereof.
The prices related to the Hardware and to the Licenses Software are set
forth in Exhibit B.
2.2. CANAL+ reserves the right to change the prices stated in Exhibit B. In that
case, these changes will not affect material and software already purchased
or licensed. These changes shall solely affect any add-ons Deliverables to
the Exhibit A or any new license agreement between Customer and CANAL+.
ARTICLE 3 - GRANT OF LICENSE
3.1. Subject to the conditions herein, CANAL+ hereby grants to Customer a
non-transferable, non-exclusive, limited license to use the Licensed
Software in machine readable form only on the Designated Equipment, or in
an embedded form in the Hardware, at the Designated Site to create
interactive applications to be offered by Customer solely to Licensed
Operators. No license is granted for use of the Licenses Software on other
equipment or hardware than the Designated Equipment or Hardware, or for any
other purpose. No license, right or interest in any trademark, trade name
or service mark of CANAL+ or any third party from whom CANAL+ may have
acquired license rights is granted under this Agreement.
3.2. This Agreement, the Licensed Software and any other information provided by
CANAL+ to Customer and any licenses and rights granted hereunder, may not
be sold, leased, copied, assigned, sublicensed or otherwise transferred, in
whole or in part, by Customer.
3.3. Customer shall not alter, modify, or adapt the Licensed Software or the
software embedded in the Hardware, including but not limited to,
translating, decompiling, disassembling, or creating derivative works.
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3.4. Customer recognizes and agrees that the applications developed from the
Licensed Software have to be validated by the Licensed Operator prior to
any broadcast.
ARTICLE 4 - DELIVERY, INSTALLATION AND RISK OF LOSS
4.1. CANAL+ shall deliver the Deliverables directly to Customer or to a common
carrier, FOB the CANAL+ office. CANAL+ assumes all risks of losses or
damage until delivery of the Deliverables to Customer or a common carrier,
whichever shall occur first.
4.2. Customer shall be solely responsible for installation of the Licensed
Software at the Designated Site, bearing in mind however that Customer
shall request from CANAL+ the unique identifier unlocking the access to the
Licensed Software.
ARTICLE 5 - SOFTWARE SUPPORT
5.1. Licensed Software support, available to Customer upon termination of the
warranty period, shall be as follows:
5.1.1. Licensed Software support shall include, exclusively:
(i) corrective maintenance on defects and errors discovered in the
Licensed Software;
(ii) updates to the Licensed Software.
5.1.2. Customer shall promptly identify, document and give CANAL+ notice of
each discovered defect or error necessitating support services.
5.2. CANAL+'s obligation to provide support hereunder is expressly limited to
the above description.
5.3. CANAL+ shall own any Upgrades to the Licensed Software. Any such Upgrades
shall be subject to separate financial terms and conditions.
5.4. A Support line shall be available during the office hours of 09:00 hours to
17:00 hours, local French time, Mondays to Fridays (inclusive), except
normal business holidays observed by CANAL+.
5.5. The financial terms and conditions of support are set forth in Exhibit B.
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ARTICLE 6 - TERM AND TERMINATION
6.1. This Agreement shall commence on the Commencement Date and shall remain in
force for a period of ninety (90) days from execution hereof, unless
terminated in accordance with the provisions of this Article 6.
6.2. CANAL+ may terminate this Agreement upon immediate written notice, if
Customer fails to comply with any material term or condition hereof.
Customer may terminate this Agreement by returning the Licensed Software to
CANAL+.
6.3. CANAL+ may terminate this Agreement upon written notice in the event that
Customer is adjudicated bankrupt, files a voluntary petition in bankruptcy,
makes an assignment for benefit of creditors or becomes unable to meet its
obligations in the normal course of business as they fall due.
6.4. Upon the expiration of this Agreement for any reason, Customer shall
immediately terminate use of the Licensed Software, and unless Customer
purchases the Licensed Software within five (5) days, return it and any
copies to CANAL+. In no event shall Customer be entitled to a refund of any
monies paid under this Agreement upon termination of this Agreement.
ARTICLE 7 - CONFIDENTIALITY OF PROPRIETARY INFORMATION
7.1. Customer acknowledges that CANAL+ may disclose to Customer certain
information, inventions, know how and trade secret ("Proprietary
Information") concerning the Licensed Software that is confidential to
CANAL+. All such Proprietary Information shall remain the sole propriety of
CANAL+, whether or not marked as such by CANAL+, and Customer shall have no
interest in or rights with respect to such Proprietary Information.
Customer shall not reproduce, duplicate, distribute, disclose or otherwise
disseminate the Proprietary Information to anyone; provided, however, that
Customer may disclose the Proprietary Information to those employees of
Customer who have a "need to know" for purposes of this Agreement, and
provided further that Customer shall be able to maintain a backup or
archival copy of the Licensed Software during the term of this Agreement.
7.2. The Licensed Software constitutes a valuable asset of CANAL+ and is to be
considered Proprietary Information.
7.3. Customer shall protect and maintain the confidentiality of the Proprietary
Information in at least the same manner it does for its own critical
proprietary information.
7.4. Customer shall notify and inform its employees having access to the
Proprietary Information of Customer's limitations, duties and obligations
regarding non-disclosure and copying of the
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Proprietary Information. Proprietary Information shall be used only by
employees of Customer and only at the Designated Site.
7.5. Notwithstanding any provisions herein concerning non-disclosure and non-use
of the Proprietary Information, Customer shall have no obligation for
disclosure or use of any such information which Customer can prove: (a) was
already known to Customer prior to its disclosure by CANAL+, (b) is or
become publicly known through non wrongful act of Customer, (c) is received
from a third party without similar restriction and without breach of this
Agreement, or (d) was independently developed by Customer.
7.6. Notwithstanding any termination pursuant to Article 6, the obligations set
forth in this Article shall survive this Agreement for a period of ten (10)
years.
ARTICLE 8 - WARRANTY AND DISCLAIMER OF WARRANTIES
8.1. CANAL+ warrants that the Hardware and the Licensed Software will
substantially conform to the documentation, provided that it is used on the
Designated Equipment, and or the Hardware, and with the operating system
for which it was designed. CANAL+ also warrants that the optical or digital
media on which the Licensed Software is distributed and the documentation
are free from defects in materials and workmanship. These warranties extend
only to Customer as the original licensee. CANAL+ will replace defective
media or documentation or correct substantial software errors at no charge,
provided Customer returns it within ninety (90) days of delivery. If CANAL+
is unable to replace defective media or documentation or correct
substantial software errors, CANAL+ will refund the license fee of the
defective product only. These are the sole remedies for any breach of
warranty.
8.2. Other than specifically set forth in section 8.1 above, CANAL+ disclaims
all warranties, express or implied, including all implied warranties or
merchantability and fitness for a particular purpose or non-infringement,
except as specified in this Agreement or where such disclaimers are held to
be legally invalid. The Parties explicitly agree that, unless specifically
referred to in this Agreement as a guarantee or warranty, no oral or
written statement and nothing in this Agreement descriptions or any of the
attached pages shall be construed or relied upon as an express or implied
warranty.
ARTICLE 9 - LIMITATION OF LIABILITY
IN NO EVENT WILL CANAL+ BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES HOWEVER CAUSED
AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF USE OR INABILITY TO USE
THE LICENSED SOFTWARE, SERVICES OR MATERIALS PROVIDED UNDER THIS AGREEMENT, EVEN
IF CANAL+ HAS BEEN ADVISED OF THE
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POSSIBILITY OF SUCH DAMAGES. In no event shall CANAL+'s liability to Customer
(whether in contract, tort (including negligence) or otherwise) exceed the
license fees charged by CANAL+ for Licensed Software.
ARTICLE 10 - EXPORTING RESTRICTIONS
Customer shall not export the Licensed Software from the country of the
Designated Site without prior written permission of CANAL+.
ARTICLE 11 - MISCELLANEOUS
11.1.If any term or provision of this Agreement is found to be invalid under
any applicable statute or rule of law, then, that provision shall be
severed herefrom and the rest of this Agreement shall remain in full force
and effect.
11.2.This Agreement constitutes and expresses the entire agreement and
understanding between the Parties and supersede all previous
communications, representations or agreements, whether written or oral,
with respect to the subject matter thereof.
11.3.This Agreement may not be modified, amended, rescinded, canceled or
waived, in whole or part, except by a written instrument signed by
authorized representatives of both Parties.
11.4.This Agreement is made under and shall be governed by and construed in
accordance with the French law. In case of any disagreement that could not
be settled on an amicable basis, first, the Courts of Paris, France
(Tribunal de Grande Instance) shall have exclusive jurisdiction.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives, in two original copies, one for each
Party.
CANAL+, S.A. [CUSTOMER]
By: Francois CARAYOL By: /s/
--------------------------
Name: /s/ Name: Dean R. Grewell III
-------------------------------
Title: Chief Executive Officer Title: President
CANAL+ TECHNOLOGIES ISES Corporation
Date: 22 November 1999 Date: November 2, 1999
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EXHIBITS TO THE APPLICATION DEVELOPMENT KIT
LICENSE AGREEMENT
===================
EXHIBIT A
Description of deliverables
- - Designated Site(s):
ISES Corporation
2600 - 72nd Street
Suite C
Des Moines, IA 50322
ISES Corporation
263 Adelaide St. West
Suite 204
Toronto, Ontario M5H1Y3
Canada
- - Designated Equipment:
o Windows NT based PC
- - Deliverables:
o Philips/MediaOne Set Top Box
o Studio+ Hardware Key
==============================================================================================================
Designation "Hardware" "Licensed Software" Quantity
==============================================================================================================
Philips MediaOne Set Studio+, Beta Version 2
Top Box
Studio+ Hardware
Key
- --------------------------------------------------------------------------------------------------------------
EXHIBIT B
Fees and financial arrangements
No Charge - Beta Test Version of Licensed Software and Hardware Deliverables to
be returned at the conclusion of this project.
Licensed Software Support
A yearly 15% of the Total Price, payable in advance at the end of the warranty
period and upon each anniversary date thereafter.
SOFTWARE DEVELOPMENT AGREEMENT
This Agreement, effective as of the date of the last signature hereto, is
entered into between CANAL+ S.A., a French corporation hereby represented by
CANAL+ U.S. Technologies, a division of CANAL+ U.S., having its office located
at 20230 Stevens Creek Blvd., Cupertino, CA 95014, (CANAL+), and International
Systems Entertainment Software, Inc. having an office located at 2600 72nd
Street, Suite C, Des Moines, Iowa 50322 (ISES). ISES and CANAL+ may be referred
to herein as a Party or Parties as the case may require.
WHEREAS, CANAL+ desires to use the software development capabilities of ISES to
perform software development services, and
WHEREAS, ISES desires to and is capable of providing the software development
services using the STUDIO+ tool licensed to ISES by CANAL+ under a separate
agreement.
NOW THEREFORE, the parties agree as follows:
Section 1 - Definitions
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Development Services shall mean the development to CANAL+'s MEDIAHIGHWAY
application development environment as well as other services provided to CANAL+
by ISES from time to time during the term of this Agreement. All such
Development Services shall be further defined, in writing in the Statement of
Work.
1.2 Statement of Work shall mean the written plan detailing the Development
Services attached hereto as Exhibit B which shall be amended from time to time
as additional Development Services are required.
1.3 Developed Software shall mean any software developed by ISES as outlined in
the Statement of Work and its Amendments.
Section 2 - Development Program
2.1 ISES agrees to provide the necessary personnel, facilities and material, and
will exert its best efforts to perform the Development Services in accordance
with a Statement of Work and any Amendments thereto. Any Development Services
will be performed within the time period specified in the Statement of Work and
its Amendments. ISES will begin performing Development Services and will
complete such Development Services within the time and monetary limitations
specified in the applicable Statement of Work or Purchase Order, as the case
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may be. If in the course of performing Development Services, ISES determines
that it will be unable to complete such Development Services within the time
specified, ISES will notify CANAL+ of such determination in writing as soon as
possible. The Statement of Work shall be activated upon the issuance of a
Purchase Order by CANAL+.
2.2 Upon CANAL+'s request, and during normal business hours, a CANAL+
representative shall be permitted to visit ISES' facilities to review the
progress of the development of the Development Services during the term of this
Agreement.
2.3 Changes to the Statement of Work.
2.3.1 CANAL+ may request changes to an existing Statement of Work during
the course of the project. If such changes materially impact ISES schedules or
require additional engineering effort or re-work, then the parties agree to
negotiate terms for such additional work in good faith.
2.3.2 Change requests shall be made in writing, supported with sufficient
detail and require written approval of both parties.
2.4 Neither this Agreement nor any purchase order shall limit CANAL+'s right to
perform itself or to select others to perform the same or similar services or
work for any reason.
2.5 ISES shall not allow any employee or agent to perform any Development
Services who has not signed a "Confidentiality and Non-Disclosure Agreement",
attached hereto as Exhibit A.
Section 3 - Compensation
3.1 As full compensation for the work performed pursuant to this Agreement, and
delivery of the Developed Software within the terms contained in Exhibit B,
CANAL+ agrees to pay ISES such amounts specified in Exhibit B and CANAL+'s
Purchase Orders for such Development Services as are actually performed by ISES
and accepted by CANAL+.
3.2 On a monthly basis or within the payment terms contained in Exhibit B, ISES
shall forward to CANAL+ a detailed invoice outlining time spent and the nature
of the work performed. CANAL+ shall remit payment to the address first stated
above.
3.3 ISES shall submit all invoices to CANAL+'s Procurement department at
mutually agreed intervals, and CANAL+ shall pay ISES within thirty (30) days
after receipt of invoices. All invoices and supporting documentation will be
sent by ISES to CANAL+ at CANAL+ U.S. Technologies, 20230 Stevens Creek Blvd.,
Cupertino, CA 95014, Attn: Procurement department, with a copy to the individual
named in 12.8 to receive notices on behalf of CANAL+.
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3.4 ISES agrees to pay and to be solely responsible for all city, state, and/or
federal unemployment insurance premiums, worker's compensation insurance
premiums, income taxes, social security taxes, and any other employment-related
taxes incurred as a result of the performance of Development Services by ISES,
and to be responsible for all obligations, reports, and timely notifications
relating to such matters. CANAL+ will have no obligation to pay or withhold any
sums for such taxes or unemployment insurance on any amounts due ISES.
3.5 All costs and expenses, including specifically, but not limited to, travel
and commuting expenses, which are incurred by ISES in connection with the
performance of the Development Services shall be borne by ISES, except only such
costs and expenses, if any, which CANAL+ has agreed in writing or in any
Statement of Work to reimburse ISES.
3.6 Rates extended to CANAL+ hereunder shall not be more than the price to any
other similarly situated customer of ISES and any percentage discount to CANAL+
hereunder shall not be less favorable to CANAL+ than the percentage discount
granted to any other similarly situated customer of ISES.
3.7 [Confidential treatment has been requested for this portion of this
Exhibit]
Section 4 - Acceptance
4.1 CANAL+'s acceptance of any Developed Software will be based upon CANAL+'s
verification that the Developed Software meets the requirements outlined in a
Statement of Work. Such acceptance by CANAL+ shall not be unreasonably withheld.
4.2 CANAL+ agrees to notify ISES, in writing, of its acceptance or rejection, as
the case may be, of the Developed Software within Thirty (30) days following the
delivery of the Developed Software outlined in the Statement of Work
4.3 If CANAL+ rejects any Developed Software within the time set forth in
Section 4.2 because of a defect or failure to meet the requirements outlined in
the Statement of Work, then CANAL+ shall furnish a written statement describing
the defect. ISES will then correct such defect, at its expense, as soon as best
efforts will allow, but in any event not later than thirty (30) days after the
receipt of CANAL+'s statement of a defect. ISES shall re-submit the corrected
Developed Software to CANAL+ for acceptance. This process will be repeated until
acceptance is reached, or until CANAL+ and ISES mutually agree on an alternate
course of action.
4.4 In the absence of CANAL+'s express rejection within the time set forth in
section 4.2 above, the Developed Software shall be deemed to have been accepted
by CANAL+.
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Section 5 - Confidentiality
ISES agrees that, for the duration and scope of this Agreement, treatment of
Confidential Information will governed by the Mutual Confidentiality and
Non-Disclosure Agreement executed by CANAL+ and ISES, an executed copy of which
is attached hereto as Exhibit A.
Section 6 - Intellectual Property
All right, title and interest in patents, copyrights and confidential
information owned by ISES prior to commencement of the Development Services and
used in the performance of this Agreement are and will remain the sole property
of ISES. All right, title and interest in patents, copyrights and confidential
information owned by CANAL+ prior to commencement of the Development Services
and provided to ISES for performance under this Agreement are and shall remain
the sole property of CANAL+. No licenses under any such intellectual property
rights of either Party are implied unless otherwise expressly stated herein.
Section 7 - License
7.1 All right, title, and interest in the Developed Software shall belong to
ISES. ISES shall be free to license such Developed Software to any operator
licensed by CANAL+ under the MediaHighway technology. Such license shall be
subject to payment of the fee in accordance with the terms of Section 3.7 above.
7.2 ISES hereby grants to CANAL+, a non-exclusive, royalty-free, world-wide
right and license to copy, use, modify and internally distribute copies of the
Developed Software for internal use and public demonstration. No rights of
distribution outside of CANAL+, licensing or sublicensing are granted. Any
modifications to the Developed Software made by CANAL+ remain the property of
CANAL+.
7.3 Upon termination of this Agreement ISES agrees to promptly deliver to a
proper CANAL+ representative all documents and other records which relate to the
business activities of CANAL+, and all other materials and badges which belong
to CANAL+, including any hardware platforms or software tools provided by CANAL+
to ISES.
Section 8 - Records and Access
ISES agrees to permit duly authorized representatives of CANAL+ at all
reasonable times to inspect and have access to such books, records, and
documentation in ISES' possession and control which directly relate to the
performance of services for CANAL+, for the purpose of auditing and verifying
the performance of or charges for services.
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Section 9 - Term and Termination
9.1 Unless otherwise terminated as provided herein, this Agreement shall become
effective as of the last signature affixed hereto and shall continue in full
force and effect until terminated as provided herein.
9.2 CANAL+ has the right, upon giving thirty (30) days written notice, to
terminate this Agreement at any time. If CANAL+ elects to terminate this
Agreement, payment to ISES for work performed up to the date of receipt of
notice, shall be for time actually worked through the date of receipt of any
termination notice. ISES shall supply any partially completed work and/or
completed work at that time and return all materials furnished by CANAL+ under
this Agreement, including all Confidential Information. Following return of any
such materials CANAL+ will make any outstanding payments due to ISES under the
provisions of this Agreement.
9.3 This Agreement may be terminated, in whole or in part, at the option of the
party having such right as provided herein, by written notice upon the happening
of any of the following events stated below:
9.3.1 Either party may terminate this Agreement if the other party becomes
insolvent, admits in writing its inability to pay its debts as they mature,
makes an assignment for the benefit of creditors, or if a petition under the
Bankruptcy Act is filed by or against such other party.
9.3.2 Either Party if that other Party fails substantially to perform any
material covenant, obligation, representation or warranty and by it or to be
performed hereunder provided, however, that no termination may be effected
hereunder unless the terminating Party delivers to the other Party written
notice informing the other Party of any alleged default. Termination is
effective if such default is not cured within thirty (30) days after receipt of
such notice.
Section 10 - Warranties/Indemnity/Limitation of Liability
10.1 ISES warrants that all materials provided to CANAL+: (i) shall comply with
the requirements of pertinent specifications, drawings, and samples; (ii) shall
perform substantially as described in the attached Statement of Work for 90 days
after delivery, and (iii) will not infringe upon or violate any U.S. patent,
copyright, trademark, trade secret or other proprietary right of ISES or a third
party. ISES further warrants that all work will be performed by careful,
efficient, and qualified workers, and in the best and most workmanlike manner,
and that the work will conform to the applicable requirements and
specifications. Materials not in conformity with these warranties may, (1) be
promptly corrected or replaced, or if not practicable, (2) be returned for
refund, less depreciation based on a 5-year straight line depreciation schedule
or (3) be retained at an equitable discount. All returns, replacements, and
corrections shall be at ISES' expense, including all labor, materials,
installation, repair, service, transportation, and other charges. No replacement
of defective or nonconforming materials returned to ISES shall be made unless
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specified by CANAL+ in writing. CANAL+ acknowledges that this paragraph sets
forth CANAL+'s exclusive remedy, and ISES's exclusive liability, for any breach
of warranty or other duty related to the quality of the Development Services.
10.2 ISES expressly warrants and represents that the Developed Software supplied
to CANAL+ will be free from errors caused by the failure of such products to
accurately process data that includes or references the year 2000 or greater.
Section 11 - Indemnity
11.1 ISES agrees to defend at its expense any suits that may be brought against
CANAL+ arising out of its internal use and/or demonstration of the Developed
Software, and based upon a claim that the Developed Software furnished hereunder
infringes a U.S. patent or copyright and to pay any costs and damages awarded in
any such suit, provided that ISES is notified promptly in writing of the suit
and, at ISES' request and at its expense, is given control of the suit and all
requested reasonable assistance fore defense of same. If the use or sale of the
Developed Software furnished hereunder is enjoined as a result of such suit,
then ISES, at CANAL+'s option and at no expense to CANAL+, shall
11.1.1 obtain for CANAL+ the right to use and demonstrate the Developed
Software; or
11.1.2 substitute equivalent software acceptable to CANAL+ and extend this
indemnity thereto; or
11.1.3 if Section 11.2.1 and 11.12.2 are not feasible, return to CANAL+ the
monies paid to ISES under section 3, less depreciation based on a 5-year
straight line depreciation schedule for the period that the Developed
Software was not usable, and terminate this Agreement without further
obligations on the part of ISES.
11.2 The indemnity in 11.1 does not extend to any suit based upon any
infringement or alleged infringement of any patent or copyright by the
combination of the Developed Software furnished by ISES with other elements if
such infringement would have been avoided by the use of the Developed Software
alone, nor does it extend to any infringement directly caused by ISES'
compliance with CANAL+'s specification, or any suit directly caused by
modification of the Developed Software by CANAL+ pursuant to Section 7.2 . The
foregoing states the entire liability of ISES for patent and copyright
infringement.
11.3 Should such an action be the direct result of the use by ISES of
specifications remitted by CANAL+, CANAL+ shall assist ISES in the defense of
such suit, provided that CANAL+ is notified promptly in writing of the suit. The
costs for such assistance shall not exceed the amount of the development costs
paid by CANAL+ hereunder. The foregoing states the entire liability of CANAL+
for patent or copyright infringement.
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11.4 EXCEPTING THE INDEMNITIES PROVIDED IN SECTIONS 11.1 AND 11.3, UNDER NO
CIRCUMSTANCES, SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT HOWEVER CAUSED,
(WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE); OR
OTHERWISE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF
DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
Section 12 - General Provisions
12.1 Entire Agreement. This Agreement, including the Appendices attached hereto
and made a part hereof, constitutes the entire understanding between the parties
relating to the subject matter hereof. This Agreement supersedes and repeals all
previous negotiations and/or understandings between the parties relating to the
subject matter of this Agreement.
12.2 Modification. This Agreement may not be amended or modified in any respect
unless approved in writing and signed by duly authorize officers of the
respective parties.
12.3 Governing Law. This Agreement and its performance shall be governed by,
subject to, and construed in accordance with the laws of the State of New York.
12.4 Export Provision. Each Party agrees that it will not in any form export,
reexport, resell, ship, or divert or cause to be exported, reexported, resold,
shipped or diverted, directly or indirectly, any product or technical data or
software furnished hereunder, or the direct product of such technical data or
software which the United States Government or any agency thereof at the time of
export or reexport requires an export license or other governmental approval
without first obtaining such license or approval.
12.5 Compliance with Law. Both parties agree to comply fully with all United
States and any other relevant jurisdictions' laws, codes and regulation
applicable to the business that each transacts, including, but not limited to
export control, product labeling and marking. Any Party failing too comply with
the terms of this provision agrees to indemnify and hold the other Party
harmless for all resulting liability or damages.
12.6 Force Majeure. In the event that either Party is unable to perform any of
its obligations or to enjoy any of its benefits because of natural disaster,
actions of governmental bodies, the Party affected shall give immediate notice
to the other party and shall do everything possible to resume performance.
Delays in delivery caused by natural disaster, actions of governmental bodies
not the fault of the affected Party shall automatically extend the delivery date
for a period equal to the duration of that event.
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12.7 Nondisclosure of Terms. Neither Party shall disclose any of the terms and
conditions of this Agreement to any third party without the prior consent of the
other Party.
12.8 Notice. Notice hereunder shall be deemed to have been sufficiently given
when delivered in writing by certified mail return receipt requested by either
Party to the other directed to:
CANAL+: ISES:
Eric Miller Rick Grewell
CANAL+ U.S. Technologies International Systems and
20230 Stevens Creek Blvd. Entertainment Software, Inc
Cupertino, CA 95014 2600 72nd Street, Suite C
Des Moines, Iowa 50322
Either Party may change its address by a notice given to the other Party in the
manner set forth above.
12.9 Security/Safety. Representatives and personnel of each Party, during the
time they are present on the premises of the other Party, shall be subject to
all rules and regulation prevailing on such premises. Each Party shall be
responsible for the payment of all compensation and expenses, unless otherwise
specified in this Agreement, of its respective representatives and personnel.
None of the representatives or personnel of either Party shall be considered for
any reason to be an employee of the other party.
12.10 Survival. The terms, provision, representations and warranties contained
in Sections 5, 6, 7, 10, 11 and 12 shall survive expiration or termination of
this Agreement.
12.11 Independent Contractors. The Parties acknowledge that their performance
under this Agreement is as independent contractors and that neither party is
authorized to act as the agent or representative of the other. Nothing contained
herein, or done in pursuance of this Agreement shall constitute the Parties as
entering upon a joint venture or shall constitute either Party hereto the agent
for the other Party for any purpose or in any sense whatsoever.
12.12 Assignment. This Agreement may not be transferred or assigned, by
operation of law or otherwise, by either Party without the prior written consent
of the other Party.
12.13 Dispute Resolution. CANAL+ and ISES agree that they shall attempt to
settle any claim or controversy arising out of this Agreement through
consultation and negotiation in the spirit of mutual friendship and cooperation.
If any such attempt should fail, then the dispute shall first be submitted to a
mutually acceptable neutral advisor for initial fact finding and mediation.
Neither party shall unreasonably withhold acceptance of such an advisor, and
selection of such an advisor shall be made within forty-five (45) days after
written notice by one of the parties for such fact finding and mediation. The
cost of such fact finding and mediation, and of any other subsequent alternative
dispute resolution agreed upon by the parties, shall be shared equally by CANAL+
and ISES. Any dispute which the parties cannot so resolve between themselves in
good faith within
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six (6) months of the date of the initial demand by either party for such fact
finding shall be finally determined by a court within the state of New York .
12.14 Captions. All captions and descriptive headings used in this Agreement are
for convenience of reference only and are not to be used in interpreting the
obligations of the parties under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date of the last signature hereto.
CANAL+ , S.A. International Systems and
Entertainment Software
By: FRANCOIS CARYOL By: /s/
--------------------------------
Name: /s/ Name: DEAN R. GREWELL III
----------------------------
Title: CEO, CANAL+ TECHNOLOGIES Title: PRESIDENT, ISES
CORPORATION
Date: 22/11/99 Date: November 3, 1999
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