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EXHIBIT 10.8
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (the "Agreement") is entered into as of
January 15, 1998 by and between InterVU Inc., a Delaware corporation
("InterVU"), and MatchLogic, Inc., a Delaware corporation ("MatchLogic").
InterVU and MatchLogic are hereinafter referred to as the "Parties."
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Ad Management Services Company" means a company, or a division of a
company, including without limitation Focalink and Imgis, that provides third
party advertising management services to Clients. If a company, such as
DoubleClick, or a division of such company provides services solely to websites
and not Clients, such company or division shall not be considered an Ad
Management Services Company.
1.2 "Client" means an advertiser, whether acting directly or through an
advertising agency or other similar agent such as a media buyer.
1.3 "CPM" means the price charged (on a cost-per-thousand basis) to
Clients with respect to Media Rich Ads.
1.4 "Disclosing Party" means the Party disclosing its Proprietary
Information to the other Party.
1.5 "Media Rich Ad" means a website advertisement utilizing Media Rich
Technology.
1.6 "Media Rich Services" means, as to InterVU, the serving up of Media
Rich Ads to Internet websites and, as to MatchLogic, both the serving up of
Media Rich Ads to Internet websites and the provision of administrative services
(including site setups, testing, report setups, central ad control and online
reporting of impression counts and click-through counts and percentages) for
Media Rich Ads.
1.7 "Media Rich Technology" means * and other existing or future
multimedia advertising solutions as agreed from time to time.
1.8 "Net Revenues" means all gross revenues received by the Parties with
regard to
* The material indicated herein by asterisks has been omitted from this
document pursuant to a request for confidential treatment.
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Media Rich Services, less actual refunds to Clients, commissions paid to
advertising agencies and consideration, royalties and fees paid to licensors or
vendors of Media Rich Technology.
1.9 "Primary Party" means the Party who successfully solicits the Client
for a particular project. A Primary Party, in its sole discretion, may offer to
turn the billing and collection responsibilities over to the other Party and
become a Secondary Party on that account for such project. Generally the Primary
Party would formally be a prime contractor to the Client and the Secondary Party
would be a subcontractor to the Primary Party.
1.10 "Proprietary Information" means confidential and proprietary
information of a Party, or of a third person who has entrusted it to the Party.
1.11 "Receiving Party" means the Party receiving Proprietary Information
from the other Party.
1.12 "Secondary Party" means, for each Client project, the Party that is
not the Primary Party.
1.13 "Service Provider" means either Party as it provides its Media Rich
Services to the other Party on behalf of Clients.
1.14 "Up-Sell" means any services other than standard Media Rich Services
offered by the Party and other than evolutionary (not revolutionary) or
quantitative (not qualitative) improvements or upgrades thereof. Without
limitation, InterVU's * and * are Up-Sells and Matchlogic's * and * are
Up-Sells.
ARTICLE II
THE ALLIANCE
The Parties agree to collaborate exclusively with each other (except as
expressly excepted in this Agreement) in the provision of Media Rich Services on
behalf of Clients.
2.1 Services and Exclusivity. InterVU and MatchLogic agree to be each
other's sole Service Provider in the provision of Media Rich Services on behalf
of Clients in the following manner:
(a) (i) InterVU agrees to use its knowledge, technology and
personnel to assist MatchLogic in serving up all of MatchLogic's and InterVU's
Clients' Media Rich Ads to Internet websites, subject to Section 2.2.
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(ii) During the term of this Agreement, except as allowed by
Section 2.2, InterVU will not distribute any Media Rich Ads for any Ad
Management Services Companies other than MatchLogic.
(iii) Notwithstanding the foregoing, neither Party shall be
obligated to enter into any campaign on which it projects an actual financial
loss.
(b) During the term of this Agreement, subject to Section 2.2,
MatchLogic agrees to provide its Media Rich Services to all of MatchLogic's and
InterVU's Clients' Media Rich Ad projects, and agrees to use InterVU as its
exclusive Service Provider on every matter where MatchLogic provides its own
Media Rich Services.
2.2 Exceptions.
(a) Neither InterVU nor MatchLogic will be required to use the other
Party's Media Rich Services as to a particular project if (i) the other Party
has consistently failed to meet prevailing industry standards for performance on
previous projects using the Media Rich Technology to be used on the new project,
unless the other Party demonstrates it has modified or improved its technology
or processes sufficiently to enable it to meet such standards for the new
project, (ii) * (iii) * (iv) the other Party exercises its Decline Right
according to Section 2.3 with application to such project or the Media Rich
Technology to be used on such project.
(b) If a Client discloses to a Party an intention or inclination to
refuse to use the Media Rich Services of the other Party or to designate a
different Service Provider to perform such Media Rich Services, the first Party
(i) shall (unless the first Party is allowed by Section 2.2(a) not to use the
other Party's Media Rich Services as to the particular project) inform the
Client that it will not provide the Media Rich Services without the other Party,
(ii) shall, if not contractually prohibited, promptly advise the other Party of
the ongoing negotiations with the Client and the Client's intention/inclination
to refuse to use the Media Rich Services of the other Party or to designate a
different Service Provider to perform such Media Rich Services and (iii) shall
not provide (unless the first Party is allowed by Section 2.2(a) not to use the
other Party's Media Rich Services as to the particular project) Media Rich
Services to this Client as to the particular project, unless otherwise agreed to
in writing by the other Party.
(c) In addition, InterVU need not use MatchLogic as the Ad
Management Services Company from and after *, for Media Rich Ads using
V-Banner.
2.3 Decline Right.
(a) As new Media Rich Technology is developed by third parties to be
used in Media Rich Ads, MatchLogic may request InterVU to provide Media Rich
Services for Media
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Rich Ads containing such new Media Rich Technology. InterVU has the right, and
at its sole discretion, to decline to develop the processes required for the
distribution of such particular new Media Rich Technology. InterVU may withdraw
this declination at any time; provided that such withdrawal of the declination
shall not apply to the extent MatchLogic has entered into a contract for a
particular campaign with any third party regarding the new Media Rich
Technology. For the duration of this exercise of InterVU's Decline Right,
MatchLogic may utilize any other Service Provider and/or means to serve up such
particular new Media Rich Technology.
(b) MatchLogic has the right, with regard to any Media Rich Ad
project, to decline to provide the ad management services. Upon the exercise of
MatchLogic's Decline Right, InterVU may then utilize any other Ad Management
Services Company and/or means to provide the ad management services for such
project.
2.4 Revenue Sharing. Unless otherwise agreed to by the parties in writing,
with regard to all their Net Revenues received by either Party with regard to
Media Rich Services provided by either Party to Clients (other than with regard
to projects on which, under Section 2.2, the other Party could be and was
excluded from participation), InterVU and MatchLogic agree (in consideration of
this Agreement and of their collaboration on many projects) to share the Net
Revenues according to the Standard Revenue Sharing Table and Rules for
Variations on the attached Schedule 2.4, and to provide accountings and payments
to each other at least monthly (by the 15th day of each calendar month). A Party
receiving a prepayment from a Client shall, however, immediately send * percent
(*%) of such prepayment (net of commissions paid to the advertising agency from
the prepayment) to the other Party. The Primary Party shall in any event be
obligated to pay the Secondary Party at least *% of its share of Net Revenue
within 60 days of the end of the month in which the Secondary Party's services
were performed. No repayment is required even if the Client pays no Net Revenue
(i.e., to the extent of such assured *% only the Primary Party bears the credit
risk).
(a) The Parties agree to, at the end of each calendar quarter,
confer to determine whether any changes to Schedule 2.4 are appropriate in view
of, among other things, InterVU's verifiable bandwidth costs. The Parties agree
that Schedule 2.4 should be revised from time to time upon written consent of
the parties, even if not revised in any other way, to adjust the * and split of
* to enable InterVU to maintain a reasonable gross profit margin for 25KB file
size products on all prospective Media Rich Ads with requirements greater than
25KB. The Parties agree that the * split of Base Net is not subject to revision.
(b) The Primary Party for a Client will be responsible for billing
and collecting fees for both Parties' Media Rich Services for such Client. The
Secondary Party need not reimburse the Primary Party for any of the associated
expense.
(c) InterVU will be responsible for negotiating and contracting with
licensors of future-developed Media Rich Technology. MatchLogic need not
reimburse for any of the associated expense unless the parties agree.
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2.5 Fair Allocation. It is understood that either Party may already be
providing, or may provide in the future, to any Client services (including,
without limitation, Up-Sells) in addition to Media Rich Services (the "Other
Services"). For purposes of this Section 2.5, a Party's Media Rich Services on
projects on which, under Section 2.2, the other Party could be and was excluded
from participation shall be considered Other Services instead of Media Rich
Services. To preserve the integrity of the Section 2.4 allocation of Net
Revenues, such Party shall charge a fair market price to the Client for the
Media Rich Services and for the Other Services. Prices charged (on a relative
basis) as of the date of this Agreement shall be presumed to be the fair market
prices, so the burden shall be on the performing Party to prove the
justifiability (based on pricing for similar customers for similar services
within the prior three months) of any deviation unfavorable to the Media Rich
Services. Any "package discount" (other than volume discounts pertaining solely
to the volume of Other Services) or other special consideration from or to the
Client shall be allocated pro rata (by revenues) between the Media Rich Services
versus the Other Services.
2.6 Liability Protection. Each Party shall provide to the Client liability
protection against failure to provide its Media Rich Services at least as
favorable to the Client as the Party's standard liability protection against
failure to provide its Media Rich Services, or as set out in a mutually
acceptable campaign liability agreement provided by both Parties to the Client
for individual campaigns. The Primary Party shall provide such protection (as it
elects to provide) directly to the Client. The Secondary Party shall provide
such protection (as it elects to provide) directly to the Primary Party, which
shall pass it through to the Client.
2.7 Audits. Each Party shall keep and maintain for no less than two years
detailed and accurate books and records with regard to Net Revenues, Section 2.4
allocations, the amount and fairness of pricing of Other Services for Clients,
payments to Media Rich Technology licensors and the calculation thereof. The
Secondary Party shall be entitled to review and audit such books and records
from time to time during normal business hours upon reasonable notice to the
Primary Party and at the Secondary Party's expense; provided that the Primary
Party will bear any such expense if the review or audit shows an underpayment of
more than five percent (5%) for the applicable period.
2.8 Client Identification. Once the Primary Party has established a Client
relationship (as evidenced by a signed contract between the Primary Party and
the Client), the Secondary Party agrees it will not call upon that Client to
independently sell Media Rich Services in an effort to displace the Primary
Party and secure Primary Party status for itself.
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ARTICLE III
JOINT EFFORT PROJECTS
InterVU and MatchLogic agree to use their reasonable commercial efforts to
work jointly together in the following matters, with regard to each of which
each Party shall bear its own expenses:
3.1 Joint Sales and Promotion Efforts.
(a) To sell and promote (in all venues and media) joint Media Rich
Services for Media Rich Ads in each Party's individual sales and promotional
efforts, and to cooperate on joint sales and promotion efforts of joint Media
Rich Services. InterVU agrees not to joint market or promote Media Rich Ad
services with any other Ad Management Services Company.
(b) MatchLogic will use best efforts to promote Media Rich Ad
projects and InterVU to its Clients and to generate Media Rich Ad business for
InterVU. InterVU will use best efforts to promote the services of an Ad
Management Services Company (namely, MatchLogic) to its Clients and to generate
Ad Management Services Company business for MatchLogic.
(c) The Parties shall develop a trade name, service mark, trademark,
logo and/or similar intellectual property (collectively, the "Marks") to refer
to their collaborative provision of Media Rich Services. The Marks shall be
jointly owned and each Party agrees that it shall not, either during or after
the term of this Agreement, license-out any Marks or use any of the Marks except
to refer to collaborative provision of Media Rich Services by the two Parties
together, and only with the prior written approval of the other Party.
(d) The Parties agree to charge each other reduced rates (adjusted
every third month) for any Media Rich Services used by either Party for internal
(consumer) promotional campaigns. InterVU agrees to provide MatchLogic a
promotional * rate for standard Media Rich Technology (25KB V-Banner size) and a
mutually-agreed-upon charge for other formats offered by InterVU if promotional
text and a link to the EyeQ download site is placed on the sweepstakes offer
webpage for such promotion.
3.2 Data Exchange.
(a) Throughout the term of this Agreement, InterVU shall provide
database information on user connectivity levels to MatchLogic and (except to
the extent InterVU is contractually precluded from doing so) shall permit
MatchLogic to set its "cookie" for each registration.
(b) InterVU agrees to provide MatchLogic with a copy of its current
database of e-mail addresses and associated data collected during registration
of InterVU registrants. However, MatchLogic agrees that MatchLogic's first
contact with such registrants must (i) be
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expressly approved by InterVU and (ii) identify InterVU as the sender of the
message; and MatchLogic further agrees that MatchLogic will send no additional
e-mail to a registrant unless and until the registrant affirmatively agrees that
MatchLogic may do so.
(c) MatchLogic agrees to provide instructions related to adding the
relevant questions for the purpose of gathering new data from InterVU
registrations. Until April 13, 1998, InterVU shall not unreasonably decline to
include such questions and (except to the extent InterVU is contractually
precluded from doing so) InterVU shall provide a copy of the registration data
from such registrations to MatchLogic. Such data gathering shall comply with all
third-party data gathering policies and standards set forth by TrusteE.
(d) If the Parties have not entered into a definitive data sharing
agreement by April 13, 1998, MatchLogic shall (i) provide InterVU with any
MatchLogic enhancements of data from the "old" InterVU database, (ii) provide
InterVU with a copy of the new data gathered from InterVU registrations and
(iii) pay InterVU * for joint title to each completed registration gathered
between January 13 and April 13, 1998.
(e) In consideration of this Section 3.2, MatchLogic agrees that it
shall not in any event before * use any MatchLogic or InterVU data for any push
video e-mail services or video syndication services that InterVU is not
delivering, or use data with any website owned by a company involved in video
production or distribution.
3.3 Technical Architecture. To notify each other on technical architecture
matters including expansion plans related to Media Rich Services provided under
this Agreement.
3.4 Intel Proposal. To create and present a joint proposal to Intel
forthwith.
3.5 Press Releases. To jointly develop and approve press releases and
other public releases announcing the formation of this strategic alliance and
any other newsworthy event or fact pertaining to the strategic alliance. Neither
Party shall issue any such press release or other public release without the
other's prior approval (which shall not be unreasonably withheld), unless
disclosure is required by law or by stock exchange or Nasdaq rule. If InterVU
obtains confidential treatment from the Securities and Exchange Commission for
any portion of this Agreement, MatchLogic shall seek confidential treatment for
such portion in any of its filings with the Securities and Exchange Commission.
3.6 Joint Developments.
(a) To attempt, when both parties wish under a business plan to be
agreed upon (which shall include specific intellectual property allocations), to
jointly develop new technologies and services related to the management and
distribution of Media Rich Ads.
(b) To work exclusively with each other for the development and
provision of push video e-mail services; provided, that if the Parties have not
agreed on a definitive e-mail
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agreement by March 31, 1998, this Section 3.6(b) shall become void; and provided
further, that such exclusivity shall not apply as to a particular project if the
database owner refuses to use the Media Rich Services of the other Party or
designates a different Service Provider to perform such Media Rich Services. The
Parties will work together to develop requirements and create a workable
business plan for consideration by the Parties. In the event both Parties
endorse the business plan, the Parties will share equitably in the mutually
approved expenses to bring the new service to market and to support the new
service.
In support of InterVU customers that wish push video e-mail
services or traditional e-mail services, MatchLogic will provide all necessary
e-mail management, delivery, tracking and reporting services (not including any
cost related to list rental or hygiene, which cost comes off the top) in return
for *% of the "Net Revenues", based on a mutually established price.
If MatchLogic customers wish to upgrade their existing
MatchLogic e-mail campaigns to add video capability, then in return for
providing video e-mail delivery services, InterVU is entitled to *% of the
additional "Net Revenues" earned by MatchLogic for the additional video service.
MatchLogic will offer InterVU a promotional rate for
traditional e-mail services that are used for InterVU's own promotional
purposes, rather than for direct revenue generation.
3.7 Co-Location.
(a) If, as and when feasible (and allowed by the applicable Internet
service provider ("ISP")), InterVU will permit MatchLogic to put its
distribution equipment into InterVU's server racks located at InterVU delivery
centers *. MatchLogic shall not use such equipment to serve up Media Rich Ads.
Such equipment shall remain MatchLogic's property at all times. MatchLogic shall
remove such equipment upon expiration or termination of this Agreement or when
required by InterVU's agreement with the ISP.
(b) To explore (above and beyond Section 3.7(a)) co-location of
servers to reduce bandwidth costs.
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ARTICLE IV
TECHNOLOGY LICENSES
4.1 Licenses to MatchLogic. InterVU hereby grants MatchLogic a
non-exclusive, non-sublicenseable, non-transferable license and right to use
InterVU's bandwidth optimization, EyeQ and AllEyes technology on projects for
which Net Revenues are shared pursuant to Section 2.4.
4.2 Licenses to InterVU. MatchLogic hereby grants InterVU a non-exclusive,
non-sublicenseable, non-transferable license and right to use MatchLogic's
technology related to cache management and TrueCount technology on projects for
which Net Revenues are shared pursuant to Section 2.4.
4.3 Termination. These licenses shall expire upon the termination or
expiration of this Agreement. No other license is granted by either Party of any
Proprietary Information, technology or intellectual property. No license of any
trade name, trademark or servicemark of either Party is granted under this
Agreement.
ARTICLE V
CONFIDENTIALITY
5.1 Non-disclosure and Non-use. Each Party recognizes the importance to
the other of the other's Proprietary Information. Accordingly, each Party as
Receiving Party agrees as follows: (a) to hold the Disclosing Party's
Proprietary Information in confidence as a fiduciary and to take all reasonable
precautions to protect such Proprietary Information (including, without
limitation, all precautions the Receiving Party employs with respect to its
confidential materials), (b) not to divulge any such Proprietary Information or
any information derived therefrom to any third person and (c) not to make any
use whatsoever at any time of such Proprietary Information except as expressly
authorized in this Agreement. Any employee given access to any such Proprietary
Information must have a legitimate "need to know" and shall be similarly bound
in writing to confidentiality and non-use under such Party's standard employee
confidentiality and non-use agreement.
5.2 Exceptions. Notwithstanding anything in this Agreement to the
contrary, Proprietary Information of a Party need not be treated as such by the
other Party if it is or has become:
(a) published or otherwise available to the public other than
by a breach of this Agreement;
(b) rightfully received by the Receiving Party from a third party
not obligated under this Agreement and without confidential limitation;
(c) approved in writing for public release by the Disclosing Party;
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(d) demonstrated by written records to be known to the Receiving
Party prior to its first receipt of the same from the Disclosing Party;
(e) demonstrated by written records to be independently developed by
the Receiving Party; or
(f) required by law to be disclosed to a governmental agency or
court.
5.3 Return of Proprietary Information. Upon termination or expiration of
this Agreement, each Party shall (a) return to the other Party the original and
all copies of any Proprietary Information provided by such other Party and any
derivatives, reflections, summaries or analyses thereof or studies or notes
thereon, and (b) at the other Party's request, have one of its officers certify
in writing that it shall not make any further use of such Proprietary
Information.
ARTICLE VI
TERM AND TERMINATION
6.1 Term. The initial term of this Agreement shall commence on the date
first set forth above and remain in full force and effect for three (3) years
(the "Initial Term"). This Agreement shall automatically renew for additional
one (1) year periods (each an "Extension Period") unless, prior to ninety (90)
days before the end of the Initial Term or the Extension Period, as the case may
be, either Party gives written notice to the other that it chooses not to extend
the Agreement. In this manner the term of the Agreement may, so long as neither
Party gives notice that it chooses not to extend the Agreement, be extended
indefinitely. However, either Party may at any time terminate this Agreement for
breach pursuant to this Article VI.
6.2 MatchLogic's Option to Terminate. MatchLogic may, at its sole option
and discretion, terminate this Agreement if InterVU fails, within 7 days of the
date set forth above, to provide written proof of an executed Royalty Agreement
with Narrative Communications Corporation. In the event that InterVU provides
written notice of its failure to enter into the Royalty Agreement with Narrative
Communications Corporation, MatchLogic's option to terminate under this Section
6.2 shall expire 3 days after MatchLogic is provided with such written notice.
In the event that MatchLogic exercises its termination rights under this Section
6.2, only the provisions of Article V shall survive such termination unless
there is a dispute under Article V, in which case, Sections 7.2, 7.3, 7.14, 7.15
and 7.16 shall survive only as they relate to an Article V dispute.
6.3 Termination with Cause. This Agreement may be terminated immediately
by: (a) either Party in the event the other Party breaches any material
provision of this Agreement and does not remedy such breach within thirty (30)
days following notice (detailing such breach) from the non-breaching Party; or
(b) either Party in the event an involuntary petition is filed
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against the other Party under any bankruptcy, reorganization, insolvency or
moratorium law, or any other law or laws for the relief of, or relating to,
debtors unless such petition shall be dismissed or vacated within sixty (60)
days of the date thereof.
6.4 No Election. Termination of this Agreement shall not serve to limit
the terminating Party's rights and remedies under applicable law arising from
any prior breach, or otherwise under the terms of the Agreement.
6.5 Survival. Except for termination pursuant to Section 6.2, the
provisions of Article V and Sections 2.7, 7.2, 7.3, 7.14, 7.15 and 7.16 shall
survive any termination or expiration of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Force Majeure. Neither Party to this Agreement will be liable for
failure to perform any of its obligations hereunder during any period in which
such performance is delayed by fire, flood, war, riot, embargo, organized labor
stoppage, earthquake, Internet outage, acts of civil and military authorities,
or any other acts beyond its reasonable control, provided that the Party
suffering such delay promptly notifies the other Party of the delay.
7.2 Arbitration.
(a) Any controversy, claim or dispute between the Parties to this
Agreement arising out of, in connection with, or in relation to the
interpretation, validity, performance or breach of this Agreement (other than
one relating to Article V or to the ownership, improper use or unauthorized use
of any technology or intellectual property) shall, at the request of either
Party, be resolved to the exclusion of a court of law by binding arbitration in
San Diego, California, in accordance with the Arbitration Procedures attached
hereto as Schedule 7.2.
(b) The arbitrator(s) shall be empowered to award relief which is
legal and/or equitable in nature, as appropriate.
(c) Except to the extent expressly contradicted by this Agreement,
the arbitration provisions of Section 1280 et seq. (Part 3, Title 9) (with the
exception of Section 1283.05) of the California Code of Civil Procedure shall be
fully applicable to this Agreement.
(d) Except for applications or other procedures to obtain
provisional relief from a court as contemplated by California Code of Civil
Procedure Section 1281.8 or any equivalent statute, if any controversy, claim or
dispute between the Parties to this Agreement arising out of, in connection
with, or in relation to the interpretation, validity, performance or breach of
this Agreement becomes the subject of a judicial action and, despite the other
Party's request for arbitration, for any reason remains the subject of a
judicial action, all decisions of fact
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and law shall be determined by reference pursuant to Section 638 et seq.
(Part 2, Title 8, Chapter 6) of the California Code of Civil Procedure. The
Parties shall designate to the court as referees three persons determined by the
Parties in accordance with the provisions established for the selection of an
arbitration panel pursuant to this Agreement; but if arbitrator(s) are already
selected pursuant to this Agreement the reference shall be to such
arbitrator(s).
7.3 Controlling Law and Venue. This Agreement and the performance of the
Parties hereunder shall be construed in accordance with and governed by the laws
of the State of California, U.S.A. as applied to agreements between California
residents to be performed entirely within California. Subject to Section 7.2,
the Superior Court of San Diego County and/or the United States District Court
for the Southern District of California shall have exclusive jurisdiction and
venue over all controversies in connection herewith, and each Party hereby
consents to such exclusive and personal jurisdiction and venue.
7.4 Severability. If any provisions of this Agreement, or application
thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be to any extent invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force.
7.5 Entire Agreement. This Agreement and any exhibits or attachments
hereto, all of which are incorporated by this reference, constitute the entire
agreement and understanding between the Parties with respect to its subject
matter and supersede any prior or contemporaneous oral or written negotiations,
understandings or agreements. However, any previous non-disclosure/non-use
agreement is expressly not superseded.
7.6 Amendment. This Agreement may be amended or supplemented only by a
writing that refers specifically to this Agreement and is signed by duly
authorized representatives of both Parties.
7.7 Waiver. Except as otherwise provided in this Agreement, any failure of
any of the Parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the Party entitled to the benefit thereof only
by a written instrument signed by the Party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
representation, warranty, covenant, agreement or condition shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other failure.
7.8 Limitation of Liability. EXCEPT FOR SECTION 2.6 OR A BREACH BY A PARTY
OF ARTICLE V, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST
PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRECEDING SENTENCE'S
LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY (PRE-TERMINATION OR
POST-TERMINATION) BREACH AFTER THE OTHER PARTY HAS TERMINATED THIS AGREEMENT
UNDER SECTION 6.3(a). EXCEPT FOR SECTION 2.6 OR A BREACH BY A PARTY OF ARTICLE
V, IN NO EVENT
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SHALL EITHER PARTY'S LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF *.
EACH PARTY DISCLAIMS ALL WARRANTIES WITH REGARD TO ITS TECHNOLOGY, CAPABILITIES
AND SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR N0N-INFRINGEMENT.
7.9 Notices. All notices required to be sent by either Party under this
Agreement must be in writing and shall be deemed given at the earliest of (a)
when actually received, (b) when sent by confirmed telecopy, (c) one business
day after being sent by commercial overnight courier with written verification
of receipt or (d) three business days after being mailed postage prepaid by
certified or registered mail, return receipt requested, to the Party to be
notified, at the respective addresses set forth below, or at such other address
which may hereinafter be designated in writing in accordance with this Section:
InterVU:
201 Lomas Santa Fe Drive
Solana Beach, CA 92075
Attention: Chief Executive Officer
Fax: (619) 793-2525
MatchLogic:
400 South McCaslin Blvd.
Louisville, CO 80027
Attention: Chief Financial Officer
Fax: (303) 665-0827
7.10 Independent Contractors. Nothing contained in this Agreement is
intended or is to be construed to constitute InterVU or MatchLogic as partners
or joint venturers or either Party as an employee of the other Party. Except as
expressly provided herein, neither Party hereto shall have any express or
implied right or authority to assume or create any obligations on behalf of or
in the name of the other Party or to bind the other Party to any contract,
agreement or undertaking with any third party. Each agrees not to purport to do
so.
7.11 Successors and Assigns. This Agreement and the rights and obligations
arising hereunder shall be binding upon and inure to the benefit of the Parties
and to their respective successors and permitted assigns. Subject to the
following sentence, neither Party may assign any of its rights or obligations
hereunder without the prior written consent of the other Party (which shall not
be unreasonably withheld or delayed). Notwithstanding the foregoing, either
Party may assign this Agreement and its rights and obligations hereunder, as an
entirety, as a part
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of an acquisition of the Party by merger or an acquisition of all or
substantially all of the Party's assets. *
7.12 Headings. The article and section headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement.
7.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same instrument. This
Agreement may be executed via facsimile signature.
7.14 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing Party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such Party may be entitled.
7.15 Equitable Remedies. Subject to Section 7.2, each Party acknowledges
and agrees that the legal remedies available to the other Party in the event the
first Party violates the covenants and agreements made in this Agreement would
be inadequate and that the other Party shall be entitled, without posting any
bond or other security, to temporary, preliminary and permanent injunctive
relief, specific performance and other equitable remedies in the event of such a
violation, in addition to any other remedies which the other Party may have at
law or in equity.
7.16 Indemnification. Each Party agrees to indemnify, defend and hold
harmless the other Party and such other Party's directors, officers, employees,
agents, consultants, shareholders and subsidiaries (the "Indemnitees") from all
expenses, costs, losses and damages that a court finally awards or amounts
actually paid in settlement by the Indemnitees as a result of any claim, action
or suit by a third party, arising from the first Party's acts or omission in
providing Media Rich Services under this Agreement, plus reasonable defense
attorney fees, costs and expenses.
If any lawsuit or enforcement action is filed against any Indemnitee,
written notice thereof shall be given to the first Party as promptly as
practicable; provided that the failure of any Indemnitee to give timely notice
shall not affect rights to indemnification hereunder except to the extent that
the first Party demonstrates actual damage caused by such failure. After such
notice, if the first Party shall acknowledge in writing to such Indemnitee that
the first Party shall be
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obligated under the terms of its indemnity hereunder in connection with such
lawsuit or action, then the first Party shall be entitled, if it so elects, to
take control of the defense and investigation of such lawsuit or action and to
employ and engage attorneys of its own choice (subject to the approval (for
competence, experience, independence and absence of conflict of interest) of the
Indemnitee) to handle and defend the same, at the first Party's cost, risk and
expense; and such Indemnitee shall thereafter cooperate in all reasonable
respects with the first Party and such attorneys in the investigation, trial and
defense of such lawsuit or action and any appeal arising therefrom. The fees of
such attorneys, and all amounts payable by the first Party under this Section,
shall be payable as incurred and on demand. The Indemnitee may also, through
independent counsel and at its own cost, participate in such investigation,
trial and defense of such lawsuit or action and any appeal arising therefrom.
No settlement calling for anything on the part of an Indemnitee other than
the payment of money may be effected by the first Party without the prior
written approval of the Indemnitee. No Indemnitee shall enter into a settlement
calling for the payment of money (under this Section or otherwise), or for any
other thing, by the first Party without the prior written approval of the first
Party.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS HEREOF, the Parties have entered into this Agreement as of the
date first written above.
INTERVU INC.
By: /s/ Harry Gruber
------------------------------------
Title: Chief Executive Officer
MATCHLOGIC, INC.
By: /s/ Steve Harris
------------------------------------
Title: Executive Vice President
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SCHEDULE 2.4
Standard Revenue Sharing Table
File Size
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< 25 KB
25.1 - 49.9 KB
50 - 74.9 KB
75 - 99.9 KB
100 - 124.9 KB
125 - 149.9 KB
150 - 174.9 KB
175 - 200 KB
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SCHEDULE 7.2
ARBITRATION PROCEDURES
ESTABLISHMENT OF FORUM
Arbitration shall be initiated by one Party sending to the other a Notice
of Arbitration, by first class United States mail, which notice must contain a
description of the dispute, the amount involved, and the remedy sought. Unless
the Parties agree on one arbitrator within ten days thereafter, each Party
shall, within 20 days after the mailing of the initiating notice, choose one
arbitrator, and the two arbitrators chosen shall, within 30 days after the
mailing of the initiating notice, select a third arbitrator. A person shall be
ineligible to be an arbitrator if he/she (or any of his/her affiliates) is an
affiliate of, vendor or service provider to, or customer of, any Party or any of
any Party's affiliates. The arbitration shall be held within 90 days after the
mailing of the initiating notice, at a date, time and place determined (subject
to this Agreement) by majority vote of the arbitrators.
PRE-HEARING CONFERENCE
The arbitrator(s) shall schedule a pre-hearing conference to reach
agreement on procedural matters, arrange for the exchange of information, obtain
stipulations, and attempt to narrow the issues.
DISCOVERY
The Parties agree to expedite the arbitration proceedings by placing the
following limitations on discovery:
a. Each Party may propound only one interrogatory, which shall be
limited to requesting the names and addresses of the witnesses to be called at
the arbitration hearing.
b. On a date to be determined at the pre-hearing conference, each
Party may serve one request for the production of documents. The documents are
to be exchanged two weeks later.
c. Each Party may depose five witnesses. Each deposition must be
concluded within four hours and all depositions must be taken within thirty (30)
days of the pre-hearing conference. Any Party deposing an opponent's expert must
pay the expert's fee for attending the deposition.
THE HEARING
I. The Parties must file briefs with the arbitrator(s) at least three (3)
days before the hearing, specifying the facts each intends to prove and
analyzing the applicable law.
II. The Parties have the right to representation by legal counsel
throughout the arbitration proceedings.
III. Judicial rules of evidence and procedure relating to the conduct at
the hearing, examination of witnesses, and presentation of evidence do not
apply. Any relevant evidence, including hearsay, shall be admitted by the
arbitrator if it is the sort of evidence on which responsible persons are
accustomed to rely on in the conduct of serious affairs, regardless of the
admissibility of such evidence in a court of law.
IV. Within reasonable limitations, both sides at the hearing may call and
examine witnesses for relevant testimony, introduce relevant exhibits or other
documents, cross-examine or impeach witnesses who shall have testified orally on
any matter relevant to the issues, and otherwise rebut evidence, as long as
these rights are exercised in an efficient and expeditious manner.
V. Any Party desiring a stenographic record may secure a court reporter to
attend the proceedings. The requesting Party must notify the other Party of the
arrangements in advance of the hearing and must pay for the cost incurred.
VI. Any Party may request the oral evidence to be given under oath.
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THE AWARD
I. The decision shall be based on the evidence introduced at the hearing,
including all logical and reasonable inferences therefrom. The arbitrator(s) may
grant any remedy or relief which is just and equitable.
II. The award must be made in writing and signed by either the arbitrator
or a majority of the arbitrators if a panel is used. It shall contain a concise
statement of the reasons in support of the decision.
III. The award must be mailed promptly to the Parties, but no later than
thirty (30) days from the closing of the hearing.
IV. The decision of a majority of the arbitrators shall be final and
binding upon the Parties and their respective successors and assigns.
FEES AND EXPENSES
The arbitrator(s) must award attorney fees, witness fees and other costs
and expenses of the arbitration to the prevailing Party.
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