OnSat EXHIBIT 10.15
Network Communications
VIDEOLOCITY
STRATEGIC ALLIANCE AGREEMENT
The parties to this OnSat Strategic Alliance Agreement ("Agreement") are OnSat
Network Communications, Inc., a Utah corporation, having a principal place of
business at 2749 East Parley's Way, Salt Lake City, UT 84109 ("OnSat") and
Videolocity Inc., a Utah corporation, having a principal place of business at
358 South 700 East, Salt Lake City, UT 84102.
BACKGROUND
a. Business Purpose. Videolocity is in the business of providing digital content
and delivery systems ("Content"), including video, through the use of
proprietary set-top devices, software and servers to end users, including
businesses, both real time and on demand;
OnSat Network Communications, Inc. is in the business of providing wireless
delivery of high speed Internet access and digital content such as video via,
satellite bandwidth, backhaul services ("Transport") and has the Technical
Operating Center to provide such services;
Therefore, OnSat and Videolocity wish to combine services and offer wireless
Internet connections, video-on-demand and telephony products ("Product") to
residences and businesses, including hotels/condos, schools, and churches. The
parties with to develop this as a test model that can be extended to future
areas.
b. Terms and Conditions/Statements of Work. These terms and conditions will
govern each party's rights and obligations relating to the provision of general
services hereunder. These terms and conditions, by and of themselves, do not
implement any transaction. OnSat and Videolocity, Inc. intend that all services
provided by OnSat and/or Videolocity, Inc. one to the other hereunder shall be
implemented through individual Statements of Work under this Agreement, which
Statements of Work shall be deemed to incorporate the terms and conditions of
this Agreement unless the Statement of Work explicitly states otherwise.
c. Administration of Statements of Work. In the event a party wishes to engage
the other party under this Agreement, and in the event such other party wishes
to provide services to the other party, the parties shall enter into one or more
Statement(s) of Work which will be made a part of this Agreement; the terms and
conditions of this Agreement will apply to and govern all such Statements of
Work and their subject matter notwithstanding to the contrary. (A Statement of
Work is referred to herein as a "SOW," and the services to be provided pursuant
to a SOW under this Agreement are referred to herein as the "Services.") Each
SOW under this Agreement shall become effective only upon execution by
authorized representatives of both parties, and will include at least the
following information, together with any additional terms and conditions as the
parties may deem necessary or desirable with respect to the Services to be
perfomed under each such SOW.
i. Description of the Services
ii. Name, address, email address, telephone and fax number of the end
user.
iii. Description of each party's responsibilities;
iv. Detailed description of equipment, services and associated costs.
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v. Identification of the authorizing individuals.
d. Order of Precedence. A SOW may contain terms and conditions that are
inconsistent with this Agreement. In such case, the terms and conditions of the
SOW shall prevail (but only with respect to that particular SOW).
TERMS AND CONDITIONS
1. PARTIES AND RESPONSIBILITIES. OnSat shall engineer, order equipment and
perform installation services to provide transport services to the area ("Area")
as defined in the applicable SOW. Both parties agree to work together to use
best efforts to provide the optimum success for the delivery of products and/or
services as defined in the applicable SOW to the Area.
2. USE OF TRADENAMES AND MARKS. Each party is hereby granted a limited license
and permission to use, during the term of this Agreement and within the Area,
the trademarks and trade names used by OnSat or Videolocity in connection with
their respective products and services. Such permission is expressly limited to
uses necessary for the sales of the products and services and to the performance
by both parties of the obligations under this Agreement. Videolocity
acknowledges and agrees that OnSat is the exclusive owner of the OnSat
trademarks and trade names and Videolocity agrees not to take any action
inconsistent with OnSat's exclusive ownership of same. OnSat acknowledges and
agrees that Videolocity is the exclusive owner of the Videolocity trademarks and
trade names and OnSat agrees not to take any action inconsistent with
Videolocity's exclusive ownership of same. All use shall be subject to an in
accordance with the parties published trademark policies, as the same may from
time to tome be modified. Neither party shall use such trademarks or trade names
in such a fashion as to jeopardize the rights and proprietary interests of the
other party therein.
3. INTELLECTUAL PROPERTY. Each party and/or its licensors retain on an exclusive
basis for itself all right, title and interest in and to any intellectual
property developed, delivered and/or used by such party in the performance of
this Agreement.
4. INDEMNIFICATION. Each party agrees to indemnify, defend, and hold the other
harmless from and against any and all damages, liabilities, costs, and expenses
it incurs as a result of any claim, judgment, or adjudication against either
party arising out of or related to breach or failure to comply with the terms
and conditions of this Agreement. However, in the event that provisions are
breached pursuant to an applicable SOW, indemnifications and/or remedies of said
breached conditions provisions shall be controlled by the specific agreements in
the applicable SOW. In the event that either party receives notice of such a
claim based upon the other party's breach, it will promptly notify the other in
writing of the claim and will permit the other to have the sole control of the
defense of the claim and all negotiations for its settlement and compromise.
CONFIDENTIAL INFORMATION. Neither party shall use or disclose any Confidential
Informaition supplied by the other party relating to any products or services to
this Agreement except as authorized in writing by the other party in advance of
such disclosure and shall safeguard all Confidential Information provided under
this Agreement in the same or more restrictive manner as either party
safeguards its own Confidential Information. Confidential Information shall mean
information disclosed by one party ("Discloser") to another party ("Recipient")
in oral, visual, or written form (including magnetic, optical, or other media)
this is source code, the terms and conditions of this agreement, marked as
confidential at the time of disclosure, or that is unmarked (e.g., orally
disclosed) but is treated as confidential at the time of disclosure.
Nevertheless, each party shall provide the other party with a full description
of any and all confidential information within 30 days of such disclosure.
Confidential Information shall not include information that: (a) was in
Recipient's possession before receipt from the disclosing party; (b) is or
becomes a matter of public knowledge through no fault of Recipient; (c) is
rightfully received by the Recipient from a third party without a duty of
confidentiality; (d) is disclosed by the Discloser to a third party without a
duty of confidentiality on the third party; or, (e) is disclosed by the
Recipient with Discloser's prior written approval.
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6. TERM AND TERMINATION.
a. The initial term hereof shall be for one (1) year from the Effective Date.
Unless earlier terminated for breach as provided herein, or unless either party
notifies the other in writing, not later that thirty (30) days prior to
expiration of the initial term, of its intention to terminate the Agreement upon
said expiration, this Agreement shall automatically renew at the end of the
initial term for consecutive periods of one (1) year.
b. Termination. Either party may terminate this Agreement upon sixty (60) days
written notice. However, any SOW executed under this agreement shall survive
anything to the contrary, notwithstanding anything in this agreement.
c. Termination for Cause. Either party may terminate this Agreement for the
substantial breach by the other party of a material term of this Agreement,
attempted assignment of this Agreement or duties under the Agreement without
prior consent of both parties, making misrepresentations about either party to
this Agreement, the attempted sale of unauthorized services or unauthorized
rates, or conduct by an employee or representative of either party which results
in any legal action. The terminating party will first give the other party
written notice of the breach and a reasonable period of at least thirty (30)
days in which to cure the alleged breach. If a cure is not achieved during the
cure period then the non-breaching party may terminate this Agreement upon
written notice.
d. Insolvency, Assignment or Bankruptcy. Either party may, at its option,
immediately terminate this Agreement upon written notice to the other party if
the other party (i) admits in writing its inability to pay its debts generally
as they become due; (ii) makes a general assignment for the benefit of
creditors; (iii) institutes proceedings to be adjudicated a voluntary bankrupt
or consents to the filing of a petition of bankruptcy against it; (iv) is
adjudicated by a court of competent jurisdiction as being bankrupt or insolvent;
(v) seeks reorganization under any bankruptcy act or consents to the filing of a
petition seeking such reorganization; or (vi) is the subject of a decree by a
court of competent jurisdiction appointing a receiver, liquidator, trustee or
assignee in bankruptcy or in insolvency covering all or substantially all of
such party's property or providing for the liquidation of such party's property
or business affairs.
7. LIMITATION OF LIABILITY. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE THE SOLE
AND EXCLUSIVE REMEDIES OF THE PARTIES. NEITHER PARTY SHALL IN ANY EVENT BE
LIABLE TO THE OTHER, OR TO ANY LICENSEE, SUBLICENSEE, OR CUSTOMER OF THE OTHER
PARTY UNDER THIS AGREEMENT FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR
OF DATA, OR FOR ANY INTERRUPTION OF BUSINESS. NEITHER PARTY SHALL IN ANY EVENT
BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF
ANY KIND ARISING UNDER AND OUT OF THIS AGREEMENT, WHETHER IN A CONTRACT, TORT OR
OTHER ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF WARRANTY, ALLEGED BREACH OF
CONTRACT, DELAY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. EXCEPT AS TO THE
OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER
THIS AGREEMENT TO THE OTHER, ITS SUCCESSORS AND ASSIGNS FOR ANY DAMAGES
EXCEEDING TOTAL PAYMENTS PAID BY VIRTUE OF THIS AGREEMENT.
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8. GENERAL PROVISIONS.
a. Public Announcements and Promotional Materials. OnSat and Videolocity may
wish to issue a joint press release. OnSat and Videolocity shall cooperate with
each other either to issue a joint press release and/or to enable each party to
issue and post to its web site an announcement concerning this Agreement,
provided that each party must approve any such public announcement prior to its
release. Any separate release shall be subject to approval prior to its release
by the authorized representatives of both parties. Additionally, the parties
hereto shall work together to create marketing and promotional materials for
this endeavor which shall be jointly approved prior to publication.
b. Force Majeure. If either party is prevented from performing any portion of
this Agreement (except the payment of money) by causes beyond its control,
including labor disputes, civil commotion, war, governmental regulations or
controls, casualty, inability to obtain materials or services or acts of God,
such defaulting party will be excused from performance for the period of the
delay and for a reasonable time thereafter.
c. Limitation of Actions. No action arising or resulting from this Agreement,
regardless of its form, may be brought by either party against the other more
than two (2) years after termination of this Agreement.
d. Third Party Claims. Neither party shall be liable for any claim by the other
based on any third party claim, except as stated in Section 8 of this Agreement.
e. Assignment. This Agreement, use of Equipment, or any other right granted
either party may have under this Agreement, is not assignable, in whole or in
part, without prior written consent. Notwithstanding, neither will unreasonably
withhold consent to an assignment of this Agreement or any part of this
Agreement to a parent, subsidiary or affiliate, provided that such entity is at
least as capable of satisfying the responsibilities provided hereunder. Any
attempted assignment without the other parties written consent will be null and
void..
f. Arbitration. The parties will attempt in good faith to resolve any
controversy or claim arising out of or relating to this Agreement promptly
through discussions between themselves at the operational level. In the event a
resolution cannot be reached, such controversy or claim shall be negotiated
between appointed counsel or senior counsel or senior executives of the parties
who have authority to settle the controversy. The disputing party shall give the
other party written notice of the dispute. If the parties fail to resolve such
controversy or claim within thirty (30) days of the disputing party's notice,
either party may seek arbitration as set forth herein. Any controversy or claim
arising out of or relating to this Agreement, or a breach of this Agreement,
shall be finally settled by binding arbitration in Salt Lake City, Utah and
shall be resolved under the laws of the State of Utah without regard to its
choice of law principles. The arbitration shall be conducted before a single
arbitrator in accordance with the commercial rules and practices of the American
Arbitration Association then in effect. Any award, order, or judgment pursuant
to such arbitration shall be deemed final and binding and may be enforced in any
court of competent jurisdiction. The parties agree the arbitrator shall have no
power or authority to make awards or issue orders of any kind except expressly
permitted by this Agreement and in accordance with Section 13. All arbitration
proceedings shall be conducted on a confidential basis.
g. Attorneys' Fees. Should either party institute any action or proceeding to
enforce this Agreement or any related agreement, the prevailing party shall be
entitled to receive from the other party all reasonable out-of-pocket costs and
expenses, including, without limitation, reasonable attorney fees and costs.
h. Waiver. No waiver of any right or reedy on one occasion by either party will
be deemed a waiver of that right or remedy on any other occasion.
i.
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j. Notice. Unless otherwise agreed to by the parties, all notices required under
this Agreement (except those relating to product pricing, changes and upgrades)
will be deemed effective when received and made in writing by either (i)
registered mail, (ii) certified mail, return receipt requested, (iii) overnight
mail, addressed and sent to the address indicated herein, to the attention of
the person designated as the responsible representative or to that person's
successor; or (iv) by telephone facsimile transfer appropriately directed to the
attention of the person designated as the responsible representative or to that
person's successor.
k. Severability. If any term, provision, covenant or condition of this Agreement
is held invalid or unenforceable for any reason, the remainder of the provisions
will continue in full force and effect as if this Agreement had been executed
with the invalid portion eliminated. The parties further agree to substitute for
the invalid provision a valid provision that most closely approximates the
intent and economic effect of the invalid provision.
l. Independent Contractors. Each party acknowledges that the parties to this
Agreement are independent contractors and that it will not, except in accordance
with this Agreement, represent itself as an agent or legal representative of the
other.
m. Compliance with Laws. Each party represents and warrants that it shall comply
at its own expense with all applicable laws, rules and regulations of
governmental bodies and agencies, including all laws, rules and regulations
affecting or governing exports, in its performance under this Agreement.
n. Headings. The heading provided in this Agreement are for convenience only and
will not be used in interpreting or construing this Agreement.
Scope of Agreement. Each of the parties hereto acknowledges that it has read
this Agreement, understand it and agrees to be bound by its terms. The parties
further agree that this Agreement is the complete and exclusive statement of
agreement regarding the subject matter and supersedes all proposals (oral or
written), understandings, representations, conditions, warranties, covenants and
all other communications between the parties relating thereto. This Agreement
may be amended only by a writing that refers specifically to this Agreement and
it is signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement and affixed their
signatures and thereby acknowledge their agreement with the terms and conditions
of this Agreement, and each signatory represents and certified that he/she is
authorized to sign on behalf of and to bind each of the respective signatories
to all of the terms and conditions of this Agreement.
ONSAT NETWORK COMMUNICATIONS, INC.
By: /s/ David Stephens
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David Stephens
President/CEO
VIDEOLOCITY, INC.
By: /s/ Martin Senn
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Martin Senn
Chief Operating Officer
END OF STANDARD TERMS AND CONDITIONS
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ONSAT STRATEGIC ALLIANCE AGREEMENT
SCHEDULE A
TRADE NAMES AND MARKS
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This Schedule A supplements and is included and incorporated into the OnSat
Alliance Agreement of even date herewith, between OnSat Network Communications
("OnSat") and Videolocity, Inc. ("Videolocity").
Trade Names and Marks:
1. Videolocity shall have licensed rights to use the following OnSat Trade Names
and Marks, subject to the terms and conditions and restrictions set forth
in this Agreement.
OnSat
OnSat Network Communications
1. OnSat shall have licensed rights to use the following Videolocity Trade Names
and Marks, subject to the terms and conditions and restrictions set forth
in this Agreement.
Videolocity
Videolocity, Inc.
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