Exhibit 10.4
[REALNETWORKS LETTERHEAD]
April 20, 1999
Global Media Corporation
83 Victoria Crescent
Nanaimo, British Columbia
Canada V9R 5B9
Dear Michael Metcalfe:
This letter shall serve as a formal Agreement between RealNetworks, Inc.
("RN") and Global Media Corporation ("Customer"). Customer desires that RN
perform consulting services in connection with the Global Media Broadcast
Network project ("Broadcast Network") as set forth below.
1. SERVICES. RN shall provide the Services set forth on Attachment A
hereto and shall deliver to Customer all work product and results of such
Services (the "Deliverables") according to the Delivery Schedule set forth on
Attachment A. Customer acknowledges that its timely provision of and
unimpeded access to office accommodations, facilities, equipment, assistance,
cooperation, complete and accurate information and data from its officers,
agents, and employees, and suitably configured computer products are
essential to performance of any Services within the timeframe set forth in
this Agreement and that RN shall not be liable for any deficiency in
performing Services if such deficiency results from Customer's failure to
provide such full cooperation. With respect to the performance of Services,
Customer will not direct or supervise RN's employees or staff at Customer's
premises with respect to said individuals' tasks or responsibilities without
RN's express written consent.
2. ACCEPTANCE. In the event Customer fails to notify RN of any
difficulties or problems with the Deliverables within 30 days after
installation thereof, Customer shall be deemed to have accepted the
Deliverables. Prior to acceptance of such Deliverables, RN shall have the
right to repair or replace the Deliverables at its discretion. Upon
acceptance of such Deliverables, RN shall be under no obligation to repair or
replace such Deliverables.
3. FEES AND PAYMENT.
a. PROGRESS PAYMENTS. Customer will pay RN according to the Payment
Schedule set forth on Attachment A. By executing this Agreement, Customer
confirms the budget for the work, and the charges and purchases set forth in
Appendix A hereto. If Customer wishes to enlarge the scope of the Services
or implement additional features or subtasks, the parties shall agree upon
the costs therefor in advance in writing.
b. EXPENSES. Customer will reimburse RN for incidental expenses and
disbursements incurred by RN related to supplies, media (disks and CD-ROM
costs), travel and related lodging and meals, shipping, telephone charges,
and any other incidental expenses incurred in the performance of the
Services. RN shall bear sole responsibility for expenses incurred to acquire
the necessary tools to perform the Services. If RN needs to procure any
third party computer software, hardware, other office supplies or any other
subcontracted services or products to implement, perform, or install items
set forth in Attachment A, the cost of which will exceed $1000, RN will
notify Customer in advance, and obtain approval for the amount of the
purchase plus any applicable sales tax.
c. BILLING. RN will invoice Customer for expenses and any third
party purchases on a monthly basis. The invoice will include a report
itemizing the expenses and third party purchases. Customer shall pay all
invoices within 30 days of receipt, and shall not make any deductions thereto.
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d. TAXES. The charges do not include taxes or duties. If RN is
required to pay or collect any local, value added, goods and services, or any
other similar taxes or duties based on Services provided under this
Agreement, then such taxes and/or duties shall be billed to and paid by
Customer. This shall not apply to taxes based on RN's income.
4. CHANGE REQUESTS AND COOPERATION. Customer's request for any change in
Services must be in writing; this requirement pertains to all such requests
including but not limited to requests for changes in project plans, scope,
specifications, schedule, designs, or requirements. RN shall not be
obligated to perform tasks described in Customer's request until the parties
agree in writing to the proposed change.
5. NON-SOLICITATION. Customer will not enter into any separate
agreements, written or oral, with current or former employees or staff of RN
without RN's express written consent during the term of this Agreement and
for two (2) years from RN's completion of work performed for Customer by RN
under this or other agreements.
6. TERM; TERMINATION.
a. TERM. This Agreement shall commence as of the Effective Date and
shall remain in effect until the earlier of RN's completion of the Services,
or until terminated in accordance with this Section 4.
b. TERMINATION BY RN. Failure of Customer to make payments to RN in
accordance with this Agreement shall be considered substantial nonperformance
and cause for termination. If Customer fails to make payments when due, RN
may, upon seven days' written notice to Customer suspend performance under
this agreement. Unless payment in full is received by RN within seven days
of the date of the notice, the suspension shall take effect without further
notice. In the event of a suspension of services, RN shall have no liability
to Customer for delay or damage caused Customer because of such suspension of
services.
c. TERMINATION BY CUSTOMER. Customer shall have the right at any
time to terminate this Agreement on twenty-one (21) days' written notice. In
the event of such termination, and provided termination is not as a result of
RN's unremedied breach of this Agreement, Customer shall pay RN then accrued
payments due under the Delivery Schedule, plus the pro-rated portion of the
next payment, if any, due with respect to items being worked on up to the
time of termination, plus reimbursable expenses, plus twenty percent (20%) of
the total charges due through the date of the termination. Should Customer
wish to delete specific subtasks, Customer will notify RN immediately in
writing. As long as said deletions represent less than twenty percent of the
labor cost for the project, Customer shall not be liable for the twenty
percent termination charge.
d. TERMINATION FOR BREACH. Either party may terminate this
Agreement upon seven (7) days' written notice to the other party in the event
the other party materially breaches this Agreement and fails to cure such
breach within fifteen (15) days' written notice from the non-breaching party.
7. SOFTWARE LICENSE.
a. All right, title and interest in and to the Deliverables is owned
by, and shall remain with, RN; provided, however, that Customer shall have
the perpetual, non-exclusive, royalty-free right to use such Deliverables for
internal use in connection with the Broadcast Network project. No license or
other rights in the Deliverables is granted hereby.
b. The Services provided under this Agreement may be in support of
Customer's license to use computer software programs, owned or distributed by
RN, under a separate software license agreement. The software license
agreement shall govern all use by Customer of such programs. Neither this
Agreement nor any Ordering Document includes the grant of any license or any
other rights for such programs.
c. Any Services acquired from RN shall be bid separately from such
program licenses, and Customer may acquire either Services or such program
licenses without acquiring the other.
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8. WARRANTY. RN represents, warrants and covenants that: (i) any
Deliverables, information or materials developed for, or any advice provided
to RN, shall not rely or in any way be based upon confidential or proprietary
information or trade secrets obtained or derived by RN from sources other
than RN unless RN has received specific authorization in writing to use such
proprietary information or trade secrets; (ii) RN will not enter into any
contracts or otherwise obligate Customer in any way without Customer's
express approval; and (iii) RN will perform the Services consistent with
generally accepted industry practices. Customer must report any deficiencies
in the Services to RN in writing within thirty (30) days of completion of the
Services in order to receive warranty remedies. THE WARRANTY HEREIN IS
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. FOR ANY BREACH OF THE ABOVE WARRANTY, CUSTOMER'S
EXCLUSIVE REMEDY, AND RN'S ENTIRE LIABILITY, SHALL BE THE RE-PERFORMANCE OF
THE SERVICES. IF RN FAILS OR IS UNABLE TO RE-PERFORM THE SERVICES AS
WARRANTED, CUSTOMER SHALL BE ENTITLED TO RECOVER THE FEES PAID TO RN FOR THE
DEFICIENT SERVICES.
9. RESPONSIBILITY FOR CUSTOMER CONTENT AND SITES; INDEMNIFICATION. Except
for the Services to be provided by RN hereunder, as between Customer and RN,
Customer shall be completely and solely responsible for all matters relating
to any content or material ("Content") owned or used by Customer in
connection with any equipment provided by RN, and in connection with
Customer's Internet web site, intranet, or extranet system (collectively,
"Sites"). Customer shall remain solely responsible and liable for the
Content and the Sites, and RN assumes no responsibility for editing,
reviewing, controlling or any other activities associated with the use or
publication of any of the Content, the operation and maintenance of
Customer's Sites, and shall have no liability to any third party in
connection with such activities, whether or not RN undertakes such
responsibilities. Customer hereby agrees to indemnify, hold harmless and
defend RN and its employees, contractors and agents from all claims, damages,
costs and expenses, including reasonable attorneys' fees and litigation
expenses, arising out of or in connection with any Content or the Site.
10. CONFIDENTIAL INFORMATION. From the date of execution hereof for a
period of five (5) years from termination of this Agreement, neither party
shall use, disclose, or permit any person to obtain any confidential
information of the other party, including any materials developed or
generated hereunder (whether or not such confidential information is in
written or tangible form), except as specifically authorized by such party.
As used herein, confidential information shall mean a whole or any portion or
phase of any marketing plans, business plans, sales information, customer
lists, scientific or technical information, design, process, procedure,
formula, or improvement relating to the development, design, construction,
and operation of a program that is valuable and not generally known to a
party's competitors and any other information of a party of which the other
party becomes aware of as a result of this Agreement and which is indicated
to be confidential or, if not so indicated, which could reasonably be
interpreted to be confidential. The parties agree that, in the event of a
breach or threatened breach of the terms of this confidentiality provision,
the non-breaching party shall be entitled to an injunction prohibiting any
such breach. Any such relief shall be in addition to and not in lieu of any
appropriate relief in the way of money damages. The parties acknowledge that
Confidential Information is valuable and unique and that disclosure in breach
of this confidentiality provision will result in irreparable injury to its
owner.
11. NO ASSIGNMENT. Neither party shall assign, transfer or otherwise
dispose of this Agreement or any rights or duties hereunder without the prior
written consent of the other.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR
LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR
ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RN'S
LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES
PAID BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT.
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13. MISCELLANEOUS. This Agreement and Attachment A attached hereto and
incorporated herein constitute the entire agreement between the parties, and
supersedes any and all agreements, whether written or oral, and may only be
amended or modified by a written instrument signed by both parties. Any
controversy, dispute or question arising out of, in connection with or in
relation to this Agreement or its interpretation, performance or
nonperformance, or any breach thereof, shall be determined by arbitration in
the County of King, State of Washington, in accordance with the rules then
obtaining of the American Arbitration Association. The cost and expenses of
such arbitration shall be paid by the party against whom the arbitrator
renders a decision. The decision of the arbitrator shall be final and
binding upon the parties hereto and may be entered as a final decree or
judgment in any court of competent jurisdiction. It is expressly agreed that
the terms and conditions of this Agreement and any Ordering Document
supersede the terms of Customer's purchase order.
If the terms of this Letter Agreement are acceptable to you, please sign and
date where indicated below and return to RN.
Sincerely,
RealNetworks, Inc.
By: /s/ MARTIN SCHWARZ
--------------------------
Martin Schwarz
General Manager, Consulting Group
Accepted and Agreed to
this _____ day of April, 1999.
Customer: Global Media Corporation
By: /s/ MICHAEL METCALFE
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Print Name: MICHAEL METCALFE
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Title: PRESIDENT
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EFFECTIVE DATE: 20 APRIL 1999
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