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EXHIBIT 10.2
CONSULTING AND DEVELOPMENT AGREEMENT
TMS (Toyota Motor Sales)
This Agreement is made and entered into as of July 27, 1998 ("Effective Date")
by and between Toyota Motor Sales ("TMS"), a corporation organized under the
laws of the State of California and Novo Media Group, Inc. ("Novo"), a
corporation organized under the laws of the State of California.
WHEREAS, in TMS's continuous improvement of Interactive communication and
transaction systems, TMS from time to time needs assistance in carrying out
software development, and
WHEREAS, NOVO is in the business of providing consulting and development
services regarding interactive communication and transaction systems, and
WHEREAS, TMS desires to retain NOVO from time to time to perform certain
projects for TMS upon request by TMS and as specified and agreed upon from time
to time.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS
The following definitions are in addition to the terms defined elsewhere in this
Agreement. Unless the context otherwise required, the following terms shall have
the following meaning:
1.1 "IP RIGHTS" means copyrights, trademark rights, trade secret rights,
inventions, patent rights (if any) and design rights, whether registered or
unregistered, and including any application for registration of any of the
foregoing, and any rights of similar nature or effect existing anywhere in the
world.
1.2 "NOVO TECHNOLOGY" means (i) any intellectual property of NOVO other than the
NOVO Work Product, such as NOVO Installer Application, NOVO Registration
Application, Custom Toyota Online Browser, PPP Dialer, TCP/IP protocol Stack,
Custom Toyota chat application, NOVO memory manager, portions of the Toyota Web
Site developed using Java or other similar authoring tools, and the observation
and tracking module, LiveTrack, and (ii) intellectual property which was created
by NOVO alone or jointly with others, or by NOVO's licensors, including but not
limited to intellectual property that is necessary, useful or otherwise
generally related to NOVO's development of products, services or components,
such as computer code, algorithms and programs relating to software development
or programming generally, or is otherwise created by NOVO for a third party, or
is licensed to NOVO by a third party, including without limitation computer
code, algorithms, and programs relating to software development or programming
generally and any inventions, innovations and trade secrets of NOVO relating to
the foregoing.
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1.3 "NOVO WORK PRODUCT" means any program materials, audio or visual designs,
artwork, user interfaces, derivative works or other copyrightable materials,
algorithms, methods, inventions, innovations conceived or developed by NOVO
hereunder whether singly or jointly with others and in the performance of the
Work, but excluding TMS Materials and the NOVO Technology.
1.4 "TMS MATERIALS" means any and all technology, information or materials
provided by TMS to NOVO in connection with NOVO's performance of the Work,
including, without limitation, TMS trademarks, product materials, product and
business information of TMS, and software programs and including all NOVO Work
product previously produced under all agreements and Statements of Work between
TMS and NOVO prior to the date hereof.
2. STATEMENT OF WORK
2.1 Novo shall render all the services ("Work") from time to time agreed upon by
the parties and specified in a statement of work (a "SOW" or "Statement of
Work"), which will be attached hereto as Exhibit A-1, A-2 etc., and which is
made a part hereof by this reference. Each assignment shall be set forth in a
separate Statement of Work. A Statement of Work shall consist of a separately
signed work order or assignment which details the scope of work and price and
which references this Agreement. Each Statement of Work will follow in sequence
and is subject to the terms and conditions of this Agreement. To be binding
each Statement of Work must be separately agreed to and signed by the parties.
NOVO shall have no obligation to commence work until the applicable SOW is
agreed upon and fully signed by the parties and TMS has submitted a purchase
order covering the applicable Work. TMS shall be responsible for timely issuing
or amending any applicable purchase orders required by its accounting systems so
that TMS can comply with the payment provisions of this Agreement.
2.2 Statements of Work may be amended or modified by a supplementary work order
agreed to in writing and signed by both parties, which order shall be attached
to the applicable Statement of Work. Thereupon, the Statement of Work shall
include the services described in the supplementary work order.
2.3 The terms and conditions of this Agreement and the related Statements of
Work shall exclusively govern the provisions of services and the license of any
software to TMS in connection with the Statements of Work hereunder, and shall
supersede all pre-printed terms and conditions contained in any purchase order,
order acknowledgment form, invoice or other business form submitted hereafter
(or concurrent herewith) by either party to the other.
3. RELATIONSHIP
3.1 NOVO shall provide services that include but are not limited to: Interactive
Ideation and Concept Development, Creative Development/Implementation,
Engineering/Production for
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Internet sites or other digital delivery systems. NOVO may use subcontractors to
perform the Work or any part thereof.
3.2 Neither NOVO nor its employees shall be deemed to be TMS employees. It is
understood that NOVO is an independent contractor for all purposes and at all
times. NOVO is wholly responsible for withholding and payment of all federal,
state and local income and other payroll taxes with respect to its employees,
including contributions from them as required by law.
4. BILLING AND PAYMENT
4.1 NOVO shall invoice TMS for fees for Work hereunder and expenses incurred in
accordance with the schedule set forth in the applicable Statement of Work.
Payment shall be due upon submission of accurate invoices by NOVO to TMS, and
TMS shall pay NOVO within 30 days of invoice date.
4.2 Any applicable payment schedule or milestone schedule shall be set forth in
the applicable Statement of Work. In case of any delay due to non-performance or
not timely performance by TMS or a third party or otherwise not within the
control of NOVO, any time for performance by NOVO will be appropriately
adjusted.
4.3 The amounts payable to NOVO under this Agreement do not include any sales,
use or other governmental taxes and charges. TMS shall be solely responsible for
payment of all taxes or charges resulting from the commerce or other taxable
activity conducted on or through the TMS world wide web site on which the NOVO
Work Product, TMS Materials or licensed NOVO Technology is used. NOVO shall be
solely responsible for any governmental taxes or charges resulting from payments
by TMS to NOVO for Work performed by NOVO under this Agreement. Notwithstanding
the foregoing, the party hereto in tax compliance with respect to matters
covered herein (the "Tax Compliant Party") shall not be required to pay or
otherwise be liable or responsible for, and the party hereto not in compliance
with applicable tax regulations with respect to the matters covered herein (the
"Non-Tax Compliant Party") hereby indemnifies and holds the Tax Compliant Party
harmless against, any penalty, additional tax, or interest that may be assessed
or levied against the Tax Compliant Party as a result of the failure of the
Non-Tax Compliant Party to collect or pay any tax, or to file any return, form
or information statement that may be required to be filed by any governmental
agency as required to be paid or filed by the Non-Tax Compliant Party. For
purposes of this Agreement, NOVO shall be required to collect and remit any
applicable sales, use or similar tax on the deliverables provided by NOVO to TMS
in connection with the Services under this Agreement, and, subject to the
foregoing sentence, TMS shall reimburse NOVO for such taxes.
5. DURATION
This Agreement shall commence as of the year and date first written and shall
extend to all Work done under the Statements of Work. However, this Agreement or
any Statement of
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Work hereunder may be terminated earlier as provided below. Termination of this
Agreement shall terminate all Statements of Work then in effect (but not the
payment obligations as described in this Agreement), but the termination of a
Statement of Work shall not affect this Agreement or other Statements of Work
then in effect.
6. TERMINATION; DEFAULT
6.1 Either Party shall be entitled to terminate without cause this Agreement or
any Statement of Work hereunder on sixty (60) days prior written notice to the
other party. Should TMS exercise its right to terminate a Statement of Work or
this Agreement prior to the completion of such Statement of Work or the
Agreement, NOVO will require payment of, and TMS agrees to pay, the payment for
all services provided by NOVO under this Agreement up to the end of the sixty
(60) termination period.
6.2 The occurrence of any of the following shall constitute an event of default
under this Agreement (a) either party shall default in the performance of any of
its obligations under this Agreement in any material respect and such default
continues for a period of thirty (30) days after receipt of written notice from
the non-defaulting party; (b) either party shall make an assignment for the
benefit of creditors, be adjudicated bankrupt, file a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking reorganization,
arrangement, readjustment of its debts or for any other relief under Title 11
of the United States code or any successor or other federal or state insolvency
law ("Bankruptcy Law"), have filed against it an involuntary petition in
bankruptcy or seeking reorganization, arrangement, readjustment of its debts or
for any other relief under any Bankruptcy Law, which petition is not discharged
within thirty (30) days or shall apply for or permit the appointment of a
receiver or trustee for its assets, (c) either party shall have failed to pay
any amounts due from such party within ten (10) days after receipt of written
notice from the other party, or (d) either party is in breach of its respective
obligations under Sections 7, 8 or 9 of this Agreement. In the event of the
other party's default hereunder, either party may, on written notice to the
defaulting party (i) terminate this Agreement (subject to the limitations of
Sections 6.3 and 7.3(a)), or (ii) elect to withhold any payment or service to be
paid or performed by the non-defaulting party hereunder which shall be due or
occur after the date of receipt of such notice by the non-terminating party
until such default is cured. The rights afforded the parties under this
paragraph will not be deemed to be exclusive, but shall be in addition to any
rights or remedies provided by law.
6.3 Effect of Termination. Upon termination of this Agreement and any Statement
of Work, TMS shall pay NOVO's fees for services performed to the date of
termination within thirty (30) days after such termination. In addition, NOVO
shall return all TMS Materials and other Confidential Information of TMS to TMS
and all licenses and rights granted to NOVO pursuant to Section 7.2 hereof shall
terminate. In the event this Agreement or a Statement of Work is terminated by
NOVO for default or violation by TMS of its obligations under Section 8 (b) or
Section 7.3, then the license granted in Section 7.3 relating to the applicable
Statement of Work or all Statements of Work hereunder (if the Agreement is
terminated) shall terminate and TMS shall promptly return to NOVO all NOVO
Technology, and other NOVO
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Confidential Information, if any. In the event a Statement of Work or this
Agreement is terminated for any other reason (including monetary breaches under
this Agreement), the licenses granted by NOVO to TMS in Section 7.3 shall
continue and survive such termination, subject to the termination rights of NOVO
in the event of a subsequent TMS breach of Section 7.3 or Section 8 of this
Agreement. In addition, upon termination as set forth herein,, TMS shall
promptly return to NOVO all Confidential Information of NOVO.
6.4 At any time within ninety (90) days prior to the expiration of this term of
agreement, NOVO may (but is not obligated to) submit to TMS a written request
for TMS's decision on renewing this Agreement. Within thirty (30) days following
such a request, TMS shall notify NOVO of TMS's decision regarding renewing this
Agreement.
7. TITLE TO MATERIAL
7.1 Except as and to the extent otherwise provided herein, neither this
Agreement nor the performance of Work hereunder, shall give either TMS or NOVO
any ownership interest in or right to any IP Right of the other party. All IP
Rights that are owned or controlled by a party at the commencement of this
Agreement shall remain under the ownership or control of such party throughout
this Agreement and thereafter.
7.2 TMS hereby grants to NOVO a royalty free, non-exclusive, worldwide license
to use and practice the TMS Materials and applicable TMS IP Rights for the sole
purpose of NOVO's performance of the Work under this Agreement including the
Statements of Work. TMS understands that in order to use the results of the Work
performed hereunder, it may be necessary to obtain licenses of third party
software (such as third party database software licenses) in order to be able to
fully use the results of the Work. NOVO shall cooperate with TMS in TMS's
obtaining such third party licenses and TMS agrees to bear the expense of
obtaining such licenses. With respect to all materials and software, if any,
that are necessary or desirable for NOVO to perform the services, the parties
agree to cooperate in obtaining for NOVO (at TMS's sole expense) the right for
NOVO to use, solely for the purpose of performing the Work for TMS hereunder,
such third party information, software and technology, and all IP Rights
therein.
7.3 The parties agree that the NOVO Technology hereunder and all IP Rights
therein, but excluding the NOVO Work product, TMS Materials and all IP Rights in
the TMS Materials, and the NOVO Work product, is and shall be owned by, and
shall be the sole and exclusive property of, NOVO. NOVO hereby grants, subject
to compliance with the license terms below, to TMS the following rights:
(a) in the NOVO Technology, the worldwide, royalty free, perpetual
(except in case of a termination of this license for breach or violation by TMS
of its obligations pursuant to this Section 7.3(a) or Section 8), non-assignable
(except to TMS' subsidiaries), limited license, with right to sublicense (but
only for the benefit of TMS or its permitted successor or assigns), to do any
and all of the following: use, include in other product material, copy and
reproduce the NOVO Technology, in object code form only, and to publicly display
and have
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third parties' use the NOVO Technology, in object code form only, and in each
case only as necessary for or in connection with the use, management and
maintenance of the interactive system(s) to be developed by NOVO for TMS under
this Agreement; and
7.4 The parties agree that the NOVO Work product, the TMS Materials and all IP
Rights in the NOVO Work product and the TMS Materials are and shall be owned by,
and shall be the sole and exclusive property of TMS. NOVO makes no claim to
ownership or title to the Novo Work product or the Work and/or production
processes or tools employed in the development of the Work product. NOVO shall
have no right to use the Work product for any purpose other than providing
services under any Statement of Work and for display of NOVO past projects for
marketing and sales purposes as contemplated by this Agreement without the prior
written consent of TMS, which may be withheld in TMS' sole discretion; provided,
however, that TMS hereby grants to NOVO the worldwide, royalty free, perpetual,
non-assignable (except to NOVO's subsidiaries), limited license to use,
reproduce, and create derivative works of any or all NOVO Work Product, and to
sublicense the use of such derivative works to any third parties not in direct,
material competition with TMS in the automotive industry.
7.5 Each party agrees to perform such acts, execute and deliver such instruments
and documents, and do all such other things as may be reasonably necessary to
evidence and perfect the rights of the parties as stated herein and to
accomplish the transactions contemplated by this Agreement.
8. CONFIDENTIAL INFORMATION
(a) Any specifications, drawings, sketches, models, samples, data, computer
programs, reports, work, work product, documentation or other technical or
business information ("Information") owned by TMS and furnished or disclosed by
TMS to NOVO hereunder and any Work Product created pursuant to this Agreement
and prior work product of NOVO created pursuant to prior agreements shall be
deemed confidential to TMS and shall be returned to TMS at the conclusion of
this Agreement, or shall be destroyed (if TMS shall so direct in
writing)(subject to the provisions of Section 22 hereof). Unless such
Information was previously known to NOVO, is in the public domain at the time of
disclosure, is subsequently made public by TMS or is received by NOVO without
any confidentiality obligation from a third party having a legal right to make
such disclosure, it shall be held in confidence by NOVO, shall be used only for
the purposes hereunder, and may not be used for other purposes. NOVO shall
notify and obligate each of its employees, agents and its subcontractors to keep
such requirements. It is understood that NOVO shall have the right to disclose
the terms of this Agreement to attorneys, government agencies (including the
S.E.C.), financial advisors and potential investors, subject to reasonable
confidentiality provisions.
(b) Any Information owned by NOVO and furnished or disclosed by NOVO to TMS
hereunder, including, without limitation, the NOVO Technology in source code and
object code form, shall be deemed confidential to NOVO and shall be returned to
NOVO at the conclusion of this Agreement or destroyed (if NOVO so directs in
writing). Unless such Information was previously known to TMS, is in the public
domain at the time of disclosure, or
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is subsequently made public by NOVO or is received by TMS without any
confidentiality obligation from a third party having a legal right to make such
disclosure, it shall be held in confidence by TMS, shall be used only for the
purposes hereunder, and may not be used for other purposes. TMS shall notify and
obligate each of its employees, NOVO's and subcontractors to keep such
requirements. It is understood that TMS shall have the right to disclose the
terms of this Agreement to attorneys, government agencies (including the
S.E.C.), and financial advisors, subject to reasonable confidentiality
provisions.
(c) It is not the intention of the parties that Confidentiality Agreements must
refer by name to NOVO or TMS. To the extent that any existing general
confidentiality agreements are sufficient to secure the obligations of the
parties, their employees, agents and subcontractors under paragraphs (a) or (b)
above, such agreements qualify as Confidentiality Agreements.
9. TRADEMARKS, TRADENAMES AND LOGOS
9.1 TMS Trademarks. TMS's trademarks, tradenames, logos, product
identifications, artwork and other symbols and devices associated with TMS's
products and services ("TMS Trademarks") are now and shall remain the property
of TMS. To the extent provided to NOVO, the TMS Trademarks shall be deemed
included in TMS Materials. NOVO is hereby granted the non-exclusive,
nonassignable and nontransferable right to use the TMS Trademarks identified in
the applicable Statement of Work solely for purposes of fulfilling its
obligations hereunder. NOVO may use TMS's name and the Work as described herein.
9.2 NOVO's Trademarks. NOVO's trademarks, tradenames, logos, product
identifications, artwork and other symbols and devices associated with NOVO'S
products and services ("NOVO Trademarks") are now and shall remain the property
of NOVO. TMS, upon approval by NOVO, may use the NOVO name, logo and/or
trademark, if any, in connection with the advertising, marketing, publicity and
promotion of the Work.
10. LIMITED WARRANTY AND LIMITATIONS
10.1 NOVO warrants that the Work provided hereunder will be performed in a
professional manner. In order to receive warranty remedies, deficiencies must be
reported within ninety (90) days from the display or other operation of the Work
on a TMS world wide web site or other location accessible by third parties
generally. Such warranty does not cover any deficiency due to any modification
by anyone other than NOVO, any abuse or misuse of the Work, or extraordinary or
unusual environmental conditions, including operating environment. TMS sole
remedy is to have the affected Work re-performed or, at NOVO's option, to
receive a refund for the pro rata amount of the fees attributable to the
affected Work.
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10.2 THIS WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND NOVO DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT, WHICH ARE EACH EXPRESSLY DISCLAIMED AND TMS HEREBY EXPRESSLY
WAIVES SUCH WARRANTIES.
10.3 EXCEPT TO THE EXTENT PROVIDED IN SECTION 11 BELOW, UNDER NO CIRCUMSTANCES
SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR IN ANY
WAY RELATED TO THIS AGREEMENT, THE WORK OR THE USE OR INABILITY TO USE THE WORK,
INCLUDING, WITHOUT LIMITATION, LOST GOODWILL, LOST PROFITS, LOSS OF DATA OR
SOFTWARE, WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS, AND WHETHER ARISING OUT OF
BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF
SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED HEREIN. IN ADDITION, IN NO
EVENT SHALL NOVO BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES OR ANY OTHER DIRECT DAMAGES.
11. INSURANCE AND INDEMNIFICATION
11.1 NOVO Indemnification. NOVO shall indemnify and hold harmless TMS, its
parent, subsidiaries and affiliates and their respective employees, contractors,
shareholders and directors, and defend and pay any damages, fines or penalties
finally awarded with respect to claims brought by third parties against TMS, its
parent, subsidiaries, affiliates, and their respective directors, officers,
agents and employees (1) due to any act of infringement of any U.S. patent or
worldwide copyright or any unauthorized use of any trade secret by the NOVO
Technology or the NOVO Workproduct (but excluding infringement based on TMS
failure to obtain necessary IP Rights as per Section 7.2 hereof), each in
unaltered form, (2) based on NOVO's failure to comply with U.S. federal, state
or local law, or (3) in connection with third party claims only, the negligent
acts or omissions of NOVO, its employees or subcontractor; but in all events
excluding liability to the extent covered under Section 11.2 below; provided
that TMS promptly notifies NOVO of any such claim, provides NOVO with reasonable
assistance and full information, and gives NOVO sole control over the defense
and/or settlement thereof, and provided further that NOVO shall not settle any
such claim in any manner having a material, detrimental effect on TMS without
TMS prior written consent. Subject to the foregoing, TMS shall have the right to
participate in any such claim with counsel of its own selection at TMS's own
expense. If the NOVO Technology or NOVO Work product is or in NOVO's reasonable
judgment may become the subject of any such claims brought by third parties,
NOVO may at its option, election and expense (i) procure a license for TMS to
continue to use and maintain the system or the website, as applicable and
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appropriate in NOVO's discretion; or (ii) replace the affected NOVO Technology
or NOVO Work product with other suitable subject matter or (iii) modify the
NOVO Technology or NOVO Work product to make it noninfringing; or (iv) remove
the allegedly infringing NOVO Technology or NOVO Work product from the Toyota
Web Site. The foregoing states NOVO's entire liability and TMS's sole and
exclusive remedy with respect to claims of infringement of third party
proprietary rights of any kind. In no event shall the liability hereunder exceed
the higher of (i) the total payment received by NOVO with respect to the Work
described herein or (ii) the total amount of insurance coverage maintained by
NOVO applicable to the indemnity provided for in this Section 11.1.
11.2 TMS Indemnification. TMS shall indemnify and hold harmless NOVO, its
parent, subsidiaries and affiliates and their respective employees, contractors,
shareholders and directors, and defend and pay any damages, fines or penalties
finally awarded with respect to claims brought by third parties against NOVO,
its parent, subsidiaries, affiliates, and their respective directors, officers,
agents and employees (1) arising in connection with any TMS Materials (so long
as such liability is not caused by modifications made by NOVO to such TMS
Materials) or NOVO's use thereof, or failure to obtain necessary IP Rights as
per Section 7.2 hereof; (2) based on TMS' failure to comply with U.S. federal,
state or local laws, or (3) in connection with third party claims only, the
negligent acts or omissions of TMS, its employees or subcontractors; provided
that NOVO promptly notifies TMS of any such claim, provides TMS with reasonable
assistance and full information, and gives TMS sole control over the defense
and/or settlement thereof; and provided further that TMS shall not settle any
such claim in any manner having a material, detrimental effect on NOVO without
NOVO prior written consent. Subject to the foregoing, NOVO shall have the right
to participate in any such claim with counsel of its own selection at NOVO's own
expense. In no event shall the liability hereunder exceed the higher of (i) the
total payment made by TMS to NOVO with respect to the Work delivered herein or
(ii) the total amount of insurance coverage maintained by TMS applicable to the
indemnity provided for in this Section 11.2.
11.3 Insurance. NOVO shall procure and maintain, during the term of this
Agreement, at its sole expense, commercial general liability insurance,
including contractual and advertising liability, with an insurance company
satisfactory to TMS, in the amount of not less than One Million Dollars
($1,000,000) combined single limit for bodily injury and property damage. NOVO
shall also maintain, at all times hereunder, employer's liability insurance in
the minimum amount of One Million Dollars ($1,000,000) and worker's compensation
insurance in an amount satisfying applicable laws. NOVO shall provide TMS with a
certificate or certificates of the insurance described herein within five (5)
days after the date of this Agreement, which certificate shall specify that the
insurance carrier will provide TMS thirty (30) days written notice prior to any
change, cancellation or reduction in such coverage. The certificate(s) for the
product and commercial general liability policies shall also show TMS, its
parent and subsidiaries as additional insureds thereunder. The insurance
coverage required hereunder shall be procured from an insurer with a Best's
performance rating of at least A- and with a financial size category of at least
Class VII.
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12. NOTICE
Any notice hereunder shall be in writing and delivered when delivered
personally, by fax (and confirmed by regular mail), or by overnight express, or
if mailed by certified or registered mail, postage prepaid, addressed to a party
at its address stated below its signature hereto or to such other address as
such party may designate by written notice to the other party in accordance
herewith and shall be deemed effective upon receipt.
13. WAIVER
The failure of either party at any time to enforce any right or remedy available
to it under this Agreement with respect to any breach or failure by the other
party shall not be construed to be a waiver of such right or remedy with respect
to any other breach or failure by the other party.
14. SEVERABILITY
If any provision of this Agreement shall be held illegal, invalid or
unenforceable, in whole or in part, such provision shall be modified to the
minimum extent necessary to make it legal, valid and enforceable, and the
legality, validity and enforceability of all other provisions of this Agreement
shall not be affected thereby.
15. SURVIVAL OF OBLIGATION
The provisions of Sections 6.3, 7.3 (except as pursuant to operation of Section
6.3), 7.4, 8, 9, 10, 11.1, 11.2, 15, 16, 20, 22 shall survive the termination of
this Agreement for whatever reason and, in addition, the obligations of the
parties under this Agreement that by their nature continue beyond the expiration
of this Agreement shall survive any termination or cancellation of this
Agreement.
16. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of California, excluding conflict of laws
rules and principles.
17. INTERPRETATION; CAPTIONS
The captions in this Agreement are included for convenience only and shall not
be construed to define or limit any of the provisions contained herein. This
Agreement shall be fairly
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interpreted in accordance with its terms without any strict construction in
favor of or against either party and ambiguities shall not be interpreted
against the drafting party.
18. ENTIRE AGREEMENT; AMENDMENT
This Agreement together with the Statements of Work constitutes the entire
agreement between TMS and NOVO relating to the subject matter hereof and
supersedes all prior oral and written and all contemporaneous oral negotiations,
commitments and understandings of the parties other than confidentiality
agreements. This Agreement or any Statement of Work shall not be changed in any
manner except by a writing executed by both parties. Other than as expressly
provided herein, both TMS and NOVO agree that no prior to contemporaneous oral
representations form a part of their agreement.
19. COMPLIANCE WITH LAW; EXPORT
In performing its obligations under this Agreement, each party hereto shall
comply with all applicable federal, state, and local laws, rules and
regulations.
20. ARBITRATION
If any dispute should arise between the parties in connection with this
Agreement, before resorting to any other legal remedy, the parties shall attempt
in good faith to resolve the dispute. If the parties are unable to resolve the
dispute after good faith consultation, the controversy or claim arising out of
or relating to this Agreement, or the breach, termination or validity thereof,
shall be settled by binding arbitration in accordance with the Center for Public
Resources Rules for Non-Administered Arbitration of Business Disputes ("Rules"),
by three arbitrators appointed in accordance with said Rules. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. Section 1-16,
and judgment upon the award rendered by the arbitrators may be entered by any
court having jurisdiction thereof. The place of arbitration shall be Los
Angeles, California.
21. NO ASSIGNMENT
The rights granted herein are personal to the parties and neither party may
assign this Agreement, any Statement of Work or any rights hereunder or
thereunder without the prior written consent of the other party, except that TMS
may assign this Agreement together with related Statements of Work and license
rights to any of its subsidiary or parent corporations, without NOVO's
consent; provided, further, that neither party hereto shall require the
consent of the other party with respect to an assignment of this Agreement in
the event of a sale of all
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or substantially all of the assets or other merger or reorganization of the
party transferring the Agreement.
22. NOVO CREDITS
NOVO retains the right to demonstrate in NOVO's web site, printed materials and
marketing programs or arrangements any Work as part of a portfolio of work it
has done for other customers. NOVO will not represent any Work before it is
available to access by the general public. TMS hereby grants NOVO a limited
irrevocable license to display the TMS Materials and the NOVO Work Product to
the extent such TMS Materials and NOVO Work Product are incorporated in the Work
solely for the purpose of NOVO displaying its Work as part of its portfolio of
works.
IN WITNESS WHEREOF, NOVO and TMS have executed this Agreement in duplicate on
the day and year below written.
July 27, 1998
Toyota Motor Sales NovoMedia Group Inc.
By /s/ JUNE OKAMOTO By: /S/ KELLY ANTHONY RODRIQUES
------------------------------------ ---------------------------------
JUNE OKAMOTO Kelly Anthony Rodriques
Address: 19001 S. Western Avenue Address: 222 Sutter Street
Torrance, CA 90509 6th Floor
San Francisco, CA 94108
415.646.7000 (o)
415.646.7001 (f)
12
13
EXHIBIT A
Toyota Motor Sales
Summary of Work and Compensation
"Toyota Interactive Network"
WORK TO BE PERFORMED
NOVO will use its reasonable commercial efforts to undertake and complete
development and implementation of interactive products and services requested by
TMS (the "Products") in accordance with and substantially on the schedule agreed
upon by the parties. NOVO shall perform services and provide Products that meet
the reasonable satisfaction of TMS. For significant projects to be performed
under this Agreement, TMS and NOVO shall execute an appropriate Work Order
specifying the scope of the project and Work to be performed and the schedule
for performing such Work.
SITE MAINTENANCE/AUGMENTATION
NOVO shall provide interactive strategy, concept, and creative/production
services for maintenance and augmentation of the Toyota web site. Production
services are rendered at the rates listed below and apply specifically to the
team of individuals allocated by NOVO, which is comprised by the positions
listed below:
MONTHLY TOTAL
POSITION HOURS PER MONTH PER HOUR COST/MONTH
-------- --------------- --------- ----------
CEO (Kelly Rodriques) as needed $[ * ] [ * ]
Director of Client Services 30 $[ * ] [ * ]
Account Supervisor 160 $[ * ] $[ * ]
Senior Producer 160 $[ * ] $[ * ]
CTO/Director of Engineering 65 $[ * ] $[ * ]
Engineers (4) 640 $[ * ] $[ * ]
Traffic 160 $[ * ] $[ * ]
Programmers (3) 480 $[ * ] $[ * ]
1695 $[ * ]
ADDITIONAL EXPENSES
NOVO agrees to absorb travel and related out-of-pocket expenses for two (2)
people two (2) times per month to the Toyota location in Torrance, California.
If TMS requests travel in excess of said allotment, TMS shall absorb those
associated costs. In addition, TMS shall
13
AN ASTERISK [ * ] INDICATES THAT CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT HAS BEEN OMITTED, PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT, AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
14
absorb all travel and related out-of-pocket expenses for one (1) person to
attend the Fall, 1998 dealer show.
BROWSERS AND OPERATING SYSTEMS
NOVO will support the following browsers on WINDOWS, MAC and UNIX where there is
a released version for that platform and related additional versions: AOL -
Internet Explorer 3.0, AOL - Internet Explorer 4.0, Internet Explorer 3.0,
Internet Explorer 4.0, Internet Explorer 5.0, Netscape 2.0, Netscape 3.0,
Netscape 4.0, Netscape 5.0, Opera, WebTV
THIRD PARTY TOOLS
NOVO shall occasionally recommend third party tools or other software programs
in developing and maintaining the Toyota web site. Prior to TMS making a
decision with regard to such recommendation, NOVO shall inform TMS of the extent
of its familiarity with such tools or software and the likelihood of delays in
providing the deliverables called for by the related Services owing to any lack
of familiarity. In addition, TMS shall have the right to request that NOVO
demonstrate its expertise in use of said tool or related software program(s) by
providing NOVO with written notice of TMS's request. The reasonable cost of said
demonstration shall be included in the fees set forth above. If NOVO anticipates
that the cost of said demonstration is in excess of the monthly fees set forth
above, NOVO shall notify TMS of the additional costs involved.
AUDIT
TMS shall have the right to have a third party consultant audit NOVO to test the
efficiency of the code NOVO is compiling and writing in connection with TMS's
projects. NOVO and TMS shall mutually agree upon said consultant and said audit
shall be at the sole cost and expense of TMS.
14
15
[NOVO/IRONLIGHT LOGO]
FIRST ADDENDUM
This First Addendum made this 16th of Feb. 1999 by and between Novo MediaGroup,
Inc. ("Novo") and Toyota Motor Sales ("TMS") hereinafter called the Parties.
WHEREAS the Parties have entered into Consulting and Development Agreement
("Agreement") dated July 27, 1998 and,
WHEREAS, it is the desire of the Parties to amend and modify the Agreement, and
NOW, therefore, the Agreement is hereby amended and modified in the following
respects.
WITNESSETH
1. SERVICES. As of January 1, 1999 Novo shall add one (1) Account Manager to
the TMS retained relationship. Said Account Manager shall work One Hundred
and Sixty (160) hours per month on the TMS account and shall be billed at
the rate of [ * ] Dollars ($[ * ]) per hour.
2. BUDGET. The monthly retained agreement between TMS and Novo shall increase
by [ * ] Dollars ($[ * ]) per month for the revised monthly total of [ * ]
Dollars ($[ * ]).
All other terms and provisions of the said contract between the parties hereto
shall remain in full force and effect.
In TESTIMONY WHEREOF, the parties hereto have hereunto subscribed their names as
of the date first abovewritten
NOVO MEDIAGROUP, INC. TOYOTA MOTOR SALES
By: /s/ ANTHONY WESTREICH BY: /s/ JUNE OKAMOTO
----------------------------------- ---------------------------------
Name: Anthony Westreich Name: June Okamoto
--------------------------------- -------------------------------
Title: President, COO Title: Internet Marketing Manager
-------------------------------- ------------------------------
Date: 2/[ILLEGIBLE]/99 Date: February 16, 1999
--------------------------------- -------------------------------
222 Sutter Street, Sixth Floor
San Francisco, CA 94108
415.646.7000
www.novoironlight.com
AN ASTERISK [ * ] INDICATES THAT CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT HAS BEEN OMITTED,
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT, AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
16
[NOVO/IRONLIGHT LOGO]
SECOND ADDENDUM
This Second Addendum made this 16th of Feb., 1999 by and between Novo
MediaGroup, Inc. ("Novo") and Toyota Motor Sales ("TMS") hereinafter called the
Parties.
WHEREAS the Parties have entered into Consulting and Development Agreement
("Agreement") and First Addendum ("First Addendum") dated July 27, 1998 and Feb.
16, 1999 respectively, and,
WHEREAS, it is the desire of the Parties to amend and modify the Agreement, and
NOW, therefore, the Agreement is hereby amended and modified in the following
respects.
WITNESSETH
1. SERVICES. As of March 15, 1999 or when the Toyota.com site goes live at the
Global Frontier Center, Novo shall add one (1) Network Administrator and one
(1) Database Administrator to the TMS retained relationship. Said Network
Administrator shall bill at the rate of [ * ] Dollars ($[ * ]) per hour and
shall work Thirty-Five (35) hours per month on the TMS account and said
Database Administrator shall bill at the rate of [ * ] Dollars ($[ * ]) per
hour and shall work Twenty (20) hours on the TMS account.
2. BUDGET. The monthly retained agreement between TMS and Novo shall increase
by [ * ] Dollars ($[ * ]) per month for the revised monthly total of [ * ]
Dollars ($[ * ]).
All other terms and provisions of the Agreement and First Addendum between the
parties hereto shall remain in full force and effect.
In TESTIMONY WHEREOF, the parties hereto have hereunto subscribed their names as
of the date first abovewritten
NOVO MEDIAGROUP, INC. TOYOTA MOTOR SALES
By: /s/ ANTHONY WESTREICH BY: /s/ JUNE OKAMOTO
----------------------------------- ---------------------------------
Name: Anthony Westreich Name: June Okamoto
--------------------------------- -------------------------------
Title: President, COO Title: Internet Marketing Manager
-------------------------------- ------------------------------
222 Sutter Street, Sixth Floor
San Francisco, CA 94108
415.646.7000
www.novoironlight.com
AN ASTERISK [ * ] INDICATES THAT CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT HAS BEEN OMITTED, PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT,
AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.