EXHIBIT 10.8
SECOND AMENDED AND RESTATED EXCLUSIVE MARKETING AGREEMENT
This SECOND AMENDED AND RESTATED EXCLUSIVE MARKETING AGREEMENT (the
"Agreement") is entered into as of the 21st day of September, 2005 by and
between SunnComm International, Inc., a Nevada corporation with a principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("SunnComm") and MediaMax Technology Corporation, a Nevada corporation with a
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MM").
WHEREAS, the parties hereto are parties to an Exclusive Marketing Agreement
regarding the subject matter hereof dated February 2, 2004 (the "Original
Agreement") and a First Amended and Restated Exclusive Marketing Agreement
regarding the subject matter hereof dated June 11, 2005 (the "First Amendment");
WHEREAS, the parties have agreed to amend and restate the Original
Agreement, as amended and restated by the First Amendment, in its entirety as
set forth herein, provided that this Agreement shall become effective only if
certain events occur as set forth herein;
WHEREAS, SunnComm has created certain products known as MediaMax,
MediaCloQ, and Perfect Placement, as more fully described herein, which are
proprietary to SunnComm;
WHEREAS, in furtherance of the marketing of SunnComm's products, SunnComm
desires to engage MM to provide SunnComm with the marketing services described
herein, and MM desires to provide such services to MM; and
WHEREAS, the parties have executed an Agreement and Plan of Merger (the
"Merger Agreement") on June 11, 2005,
NOW, THEREFORE, in consideration of the anticipated receipt by SunnComm
from outside investors of investment proceeds with respect to the sale of
certain registered shares of MM owned by SunnComm, and in consideration of their
mutual promises set forth below and other valuable consideration, the parties
agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have
the meanings set forth below:
(a) "Customers" shall mean those persons and entities who license one or
more Products from SunnComm.
(b) "Products" shall mean the object code version of the products described
on Schedule A to this Agreement and any other products which at any time and
from time to time after the date hereof SunnComm owns, develops or otherwise has
the right to license in the manner provided herein, with all documentation
provided with the products and any updates or enhancements to the products that
SunnComm generally releases to its customers.
(c) "Trademarks" shall mean the trademarks and service marks listed on
Schedule B to this Agreement and any other names, designations, trademarks, and
service marks used from time to time by SunnComm in connection with the
Products.
(d) Any other capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Merger Agreement.
2. Effectiveness. Except as provided in Section 3.7(b)(iii) and Section 3.9,
this Agreement shall become effective only upon the termination of the Merger
Agreement by MM pursuant to Section 8.01(b), 8.01(d), 8.01(e) or 8.01(h) of the
Merger Agreement or by SunnComm pursuant to Section 8.01(g) of the Merger
Agreement. Upon the occurrence of any such termination of the Merger Agreement,
this Agreement shall automatically become effective without any further action
required on the part of either party hereto.
Notwithstanding anything herein to the contrary, the terms, conditions,
rights and obligations set forth in the Original Agreement, as amended by the
First Amendment, shall continue in full force and effect until such time as this
Agreement becomes effective, except that Paragraph 3.7(b)(iii) shall become
effective as set forth therein.
3. Appointment; Licenses.
3.1 Appointment. Subject to the terms and conditions of this Agreement,
SunnComm hereby appoints MM, and MM hereby accepts such appointment and agrees
to act, as the exclusive marketing representative of the Products throughout the
world.
3.2 Grant and Term of License to MM. Subject to the terms and conditions of
this Agreement, SunnComm hereby grants to MM, and MM hereby accepts, the
following nontransferable licenses:
(a) an exclusive and irrevocable worldwide license to promote and market
the Products, including any and all modifications, corrections, improvements and
enhancements of the Products and any materials and documentation provided for
use in connection with the Products for a term of five years after the effective
date of this Agreement (the date on which the entirety of this Agreement becomes
effective pursuant to Section 2 hereof); and; thereafter becoming an
non-exclusive Agreement for perpetuity; and
(b) a non-exclusive license to use the Products solely for the following
purposes: (i) demonstrating the operation and capabilities of the Products to
prospective Customers, and (ii) training MM's marketing and support personnel.
3.3 Assignment of Trademarks; Grant of License to SunnComm.
(a) SunnComm shall on the effective date of this Agreement assign to MM all
of its right, title and interest in the Trademarks which had not been previously
assigned to MM by way of an Assignment of Trademarks in the form attached hereto
as Schedule C.
(b) MM hereby grants to SunnComm a non-exclusive license to use the
Trademarks solely in conjunction with SunnComm's licensing of the Products in
compliance with this Agreement. SunnComm will not use the Trademarks or
confusingly similar marks in connection with any goods or services other than as
specified herein or as otherwise specified by MM. Specifications for use of the
Trademarks may be provided by MM from time to time. All rights in the
Trademarks, registrations of the Trademarks, applications for such
registrations, and all goodwill associated therewith, shall remain at all times
the sole property of MM, and all use of the Trademarks shall inure to the
benefit of MM. SunnComm agrees to assist in the registration of the Trademarks
in the name of MM, in renewal and maintenance of such registrations and in such
recording of MM as a user of the Trademarks as MM may reasonably request. Any
costs incurred by SunnComm and approved in advance by MM in connection with such
registration, maintenance or recording shall be reimbursed by MM. SunnComm shall
not register any Trademarks in its own name or permit any third party to
register any Trademarks in such party's name. Whenever SunnComm uses the
Trademarks in any manner, SunnComm shall clearly indicate MM's or its licensors'
ownership thereof, as the case may be. Notwithstanding the foregoing, SunnComm's
use of the Trademarks on or in connection with any advertising, marketing,
instruction or other material not provided by MM or provided by MM in English
and translated by SunnComm into any other language or languages shall be subject
to the prior written approval of MM.
3.4 Covenants and Duties of MM.
(a) Promotion of Products. MM will use its best efforts to promote and
maximize the licensing and use of the Products throughout the world. In
furtherance of, but without limiting the generality of the foregoing, MM agrees
to:
(i) diligently seek out prospective licensees for the Products;
(ii) diligently conduct demonstrations of Products;
(iii) assist SunnComm in conducting trade shows and sales promotional
campaigns;
(iv) assist SunnComm in assessing customer-requested modifications and
improvements to the Products;
(v) distribute advertising and marketing literature supplied by
SunnComm in accordance with Section 3.5(a) of this Agreement;
(vi) in all correspondence or other dealings relating to or concerned
with the Products, clearly indicate that it is acting as marketing
representative and not as author or developer of the Products; and
(vii) inform SunnComm promptly of any information received by MM which
is likely to be of interest, use or benefit to SunnComm relating to
marketing, support or development of the Products.
(b) Sales Approach; Agreements with Customers. MM will in all cases be
responsible for making the initial presentation of Products to Customers. MM and
SunnComm will determine by mutual agreement when it is appropriate for SunnComm
personnel to participate in sales opportunities. Notwithstanding the foregoing,
however, negotiation of the terms and conditions under which Products are
licensed to Customers shall be determined by MM; provided that SunnComm shall
consent to such terms and conditions, such consent not to be unreasonably
withheld or delayed, and that SunnComm shall be the party to any agreements with
Customers (each, a "Customer Agreement"). In no event shall MM purport to, or
represent itself as having the authority to, make commitments on behalf of
SunnComm.
(c) Other Products. MM agrees that, during the term of this Agreement, it
will not market, distribute or recommend products that are competitive with the
Products ("Competing Products") or work with any other company with respect to
Competing Products.
(d) Trial Licenses. MM shall not provide trial or evaluation copies of the
Products to Customers or others without the prior written consent of SunnComm.
All trial or evaluation copies of the Products authorized by SunnComm shall be
provided in accordance with the terms of this Agreement, and shall be provided
for no more than six months.
(e) Sales Leads. SunnComm shall promptly advise MM in writing of any
distribution leads or potential Customers of which it becomes aware. SunnComm
shall not deal directly with such Customers except as expressly contemplated
hereby.
(f) No Solicitation. MM agrees that during the term of this Agreement and
for one year after any expiration or termination of this Agreement, MM will not,
directly or indirectly, recruit, solicit or induce (or attempt to do any of the
foregoing), any specific employee or employees of SunnComm to terminate such
employee's employment with, or otherwise cease their relationship with, SunnComm
without the prior written consent of SunnComm.
(g) Adverse Comments. MM agrees that during the term of this Agreement and
thereafter, MM shall not comment in a negative fashion about SunnComm or any of
the Products or services provided hereunder.
3.5 Covenants and Duties of SunnComm.
(a) Provision of Marketing Materials. SunnComm will provide to MM, at no
cost to MM, copies of English language advertising and marketing materials
generally released by SunnComm relating to the Products ("Marketing Materials")
for distribution and use by MM in accordance herewith. MM may make and
distribute a reasonable number of copies of the then-current versions of any
Marketing Materials delivered to MM by SunnComm, provided that MM shall not use
or distribute any Marketing Materials identified as rescinded by SunnComm. MM
may translate the Marketing Materials into any other language or languages as
necessary to effectively market the Products.
(b) Provision of Products. Upon execution of this Agreement, SunnComm shall
provide to MM one copy of each of the Products for use in accordance with this
Agreement and shall provide to MM one copy of all additional Products at the
time of development.
(c) New Versions. SunnComm may from time to time and at its sole discretion
release a new version (the "New Version") of any Product or Products, which new
version shall supersede the prior version (a "Superseded Version"). In the event
that SunnComm releases a New Version, SunnComm may cease to maintain or support
the Superseded Version at any time after ninety (90) days following the release
of the New Version. Upon notice to MM by SunnComm of the availability of the New
Version, MM may not market the Superseded Version without the prior written
approval of SunnComm.
(d) Updates; New Products. SunnComm shall promptly provide MM with all
updates, corrections, enhancements, and new versions (each, a "New Version,"
which supersedes a "Superseded Version") of the Products for purposes of
exploitation pursuant to the terms of this Agreement. In the event any Products
become part of a "bundle," are "displaced" by a similar product, are packaged
with additional products such that such Product(s) are no longer offered as a
separate product, are renamed, or are unbundled into separate products, such new
or other products shall automatically be deemed to be Products covered by this
Agreement. In the event that SunnComm releases a New Version, SunnComm may cease
to maintain or support the Superseded Version at any time after ninety (90) days
following the release of the New Version. Upon notice to MM by SunnComm of the
availability of the New Version, MM may not market the Superseded Version
without the prior written approval of SunnComm. All new products developed by
SunnComm which are in any way related to the Products shall automatically be
deemed "Products" hereunder without any further action by either party hereto.
(e) Marketing Support. SunnComm will provide reasonable assistance to
support MM's marketing efforts. Without limiting the generality of the
foregoing, SunnComm will (i) attend sales calls and/or presentations with MM as
reasonably requested by MM and agreed to by SunnComm in connection with the
presentation of Products; (ii) provide reasonable support and aid in any
response to a request for a proposal to which a response is prepared by MM
involving one or more Products; (iii) provide reasonable support and assistance
with any field trial of one or more Products; and (iv) keep MM reasonably
informed of the status of significant product enhancements or new products.
3.6 Installation, Training and Support. Upon reaching each Customer
Agreement as set forth in section 3.4(b), SunnComm shall be responsible for
installation of all Products, training of the Customer, maintenance of Products
and systems used in connection with the products, and support for the Products.
SunnComm shall deal directly with each Customer for purposes of providing and
supporting the Products from and after the time a Customer Agreement is reached
with each such Customer.
3.7 Prices, Licensing Fees and Royalties.
(a) Price. Each Customer Agreement shall provide for prices for Products as
determined by SunnComm.
(b) Licensing Fees and Royalties.
(i) Initial License Fee. MM has previously paid to SunnComm an initial
license fee in the amount of $2,030,000 pursuant to the Original Agreement.
(ii) Amount of Royalty Payments. MM shall pay royalties to SunnComm in
an amount equal to (i) to the extent that any amounts are owing by SunnComm
to MM under Section 8.03(b) or 8.03(d) of the Merger Agreement, 100% of the
Gross Licensing Revenues (determined in accordance with Generally Accepted
Accounting Principles consistently applied) realized on any and all sales
or sublicenses of any Products or future developments thereto and (ii)
following payment in full of amounts owing by SunnComm to MM under Section
8.03(b) or 8.03(d) of the Merger Agreement, if any, 50% of the Gross
Licensing Revenues, (determined in accordance with Generally Accepted
Accounting Principles consistently applied) realized on any and all sales
or sublicenses of any Products or future developments thereto.
(iii) Minimum Monthly Royalty. Commencing the earlier of July 1, 2006
or such date as any amounts are owing by SunnComm to MM under Section
8.03(b) or 8.03(d) of the Merger Agreement, MM shall pay to SunnComm a
minimum monthly royalty of One Hundred Fifty Thousand Dollars ($138,000) to
be applied against current and future royalties owed to SunnComm, and a
monthly administrative support fee of Twelve Thousand Dollars ($12,000). In
the event that such minimum monthly royalties exceed the amount that would
otherwise be due to SunnComm in accordance 3.7 (b) (ii) above, SunnComm
shall pay an interest charge of five percent (5%) per annum, to be offset
against future royalties otherwise to be owed to SunnComm. Notwithstanding
anything to the contrary contained herein, the minimum monthly royalty
payments required by this paragraph shall not be reduced by reason of the
fact that any amounts may be owing by SunnComm to MM under Section 8.03(b)
or 8.03(d) of the Merger Agreement.
(c) Payment. Each Customer Agreement shall provide for payment by
the Customer to SunnComm. SunnComm shall be responsible for collection of all
fees from Customers. SunnComm shall remit royalties due to MM monthly and
reconcile with MM on a quarterly basis, within thirty (30) days after the end of
each calendar quarter, with a detailed accounting of the calculation of the
amounts remitted.
3.8 Records, Right to Audit.
(a) SunnComm Reports. SunnComm shall report to MM the following
information:
(i) within thirty (30) days after the end of each calendar
quarter, a list of all Products licensed to Customers during the
preceding quarter;
(ii) on a quarterly basis, a rolling forecast of orders for each
Product; and
(iii) such other information relating to the marketing of the
Products as SunnComm shall reasonably request from time to time.
(b) Business Records; Right to Audit and Copy. During the term of this
Agreement and for a period of two (2) years thereafter, SunnComm shall maintain
accurate records relating to its performance of its obligations under this
Agreement ("Business Records"). During the later of five (5) years thereafter or
until SunnComm's obligation to MM is paid in full, MM or its designee shall have
the right, at its own expense and under reasonable conditions of time and place,
to from time to time audit the Business Records. In the event of judicial or
governmental order or decree, SunnComm shall immediately make copies of the
Business Records available to MM either at SunnComm's principal place of
business or by forwarding such copies to MM, as instructed by MM.
3.9 Source Code Escrow. On or within five (5) business days after the date
of execution of this Agreement, SunnComm shall deposit the source code for the
Products and any associated documentation, and all up-dates thereto ("Source
Code") with an escrow agent agreed upon by the parties (the "Escrow Agent") and
on the date of effectiveness of this Agreement shall execute and deliver a
Source Code Escrow Agreement substantially in the form of Schedule D attached
hereto. The Source Code shall be released from escrow upon the occurrence of any
one of the following events: (a) SunnComm making an assignment for the benefit
of its creditors; (b) the filing for relief by SunnComm of its creditors under
any voluntary or involuntary bankruptcy or insolvency law relating to the
reorganization of SunnComm's assets or the appointment of a trustee or receiver
for SunnComm's property; (c) the cessation of operations, liquidation or
dissolution of SunnComm; or (d) termination of this Agreement by MM pursuant to
Section 9 hereof. SunnComm hereby agrees to pay the Escrow Agent's fees for
Source Code deposited pursuant to this Section 3.9. Once Source Code is
deposited with the Escrow Agent, the deposit shall be updated by SunnComm no
less than quarterly with the current version of the Source Code.
3.10 Assignment of Revenues. In consideration of the mutual covenants
contained herein, SunnComm hereby assigns to MM in accordance with Section 3.7
of this Agreement, in perpetuity, all revenues derived from the following:
(a) that certain Copy Protection Agreement dated May 30, 2003, by and
between SunnComm, as Licensor, and BMG Music, as Licensee; and
(b) that certain Technology License Agreement dated December 2, 2003, by
and between SunnComm, as Licensor and Sonopress, L.L.C., as Licensee; and
(c) that certain Software Licensing Agreement dated January 12, 2004, by
and between SunnComm, as Licensor and Immediatek, Inc. as Licensee; and
(d) any and all other Agreements or contracts for revenue which SunnComm
has or may obtain until its obligations under Section 3.7 (c) are fulfilled.
4. Previous Agreement Superseded. Upon effectiveness, this Agreement shall amend
and restate in its entirety the Exclusive Marketing Agreement dated February 2,
2004 between the parties hereto, which shall be superseded hereby. Upon
execution, this Agreement supersedes the First Amended and Restated Marketing
Agreement dated June 11, 2005.
5. Confidentiality; Publicity.
5.1 Confidential Information. The confidentiality provisions of this
Section 5 shall apply to all confidential and proprietary information disclosed
by the parties to each other orally or in writing, including information
disclosed prior to the date hereof, with respect to their respective businesses,
operations and proprietary technologies ("Confidential Information"); provided,
however, that for purposes of this Agreement, Confidential Information shall be
deemed not to include information which at the time of disclosure or thereafter
(a) is generally available to the public (other than as a result of a disclosure
by the receiving party), (b) is available to the receiving party on a
nonconfidential basis from a source other than the disclosing party, provided
such source is not and was not bound by a confidentiality agreement with the
disclosing party or otherwise prohibited from transmitting such information to
the receiving party by a contractual, legal or fiduciary obligation, (c) has
been independently developed by the receiving party, as evidenced by its written
records, or (d) which at the time of disclosure, and with respect to such
disclosure only, is required to be disclosed pursuant to a requirement of law.
5.2 Nondisclosure. Each party agrees, in addition to all the other
protections provided in this Agreement, to limit disclosure of competitively
sensitive information to those members of its senior management team and those
Representatives (as hereinafter defined) whose evaluation or knowledge of such
information is reasonably required with respect to the potential business
transaction(s). MM and SunnComm mutually agree to hold each other's Confidential
Information in strict confidence, to use it only for the purpose of pursuing a
potential business transaction between them, and not to disclose such
Confidential Information to any third party, except as provided herein, and to
use its best efforts to protect such Confidential Information. MM and SunnComm
may disclose each other's Confidential Information to their respective
employees, accountants, financial advisors, outside counsel and other
representatives with a bona fide need to know (collectively, "Representatives"),
provided that prior to disclosing Confidential Information or any information
described in Section 5.3 below to a Representative, MM or SunnComm, as the case
may be, shall inform such Representative of the requirements of this Agreement
and obtain from such Representative his or her agreement to be bound thereby.
5.3 Nondisclosure of Negotiations. Without the prior written consent of the
other party, and subject to Section 5.4 below, MM and SunnComm will not, and
will direct their respective Representatives not to, disclose to any third party
(other than a Representative in accordance with Section 5.2 above or to
potential investors in MM or SunnComm in connection with an offering of
securities of such company) either the fact that any investigations, discussions
or negotiations are taking place concerning a potential business transaction
between them, or that each of them has requested or received information from
the other party, or any of the terms, conditions or other facts with respect to
any such potential business transaction, including the status thereof.
5.4 Required Disclosures. If MM or SunnComm or any of their respective
Representatives is required by law to disclose any of the other party's
Confidential Information or any of the terms, conditions or other facts with
respect to the potential business transaction between MM and SunnComm, the party
required to make such disclosure will promptly notify the other party of such
requirement prior to making the disclosure. MM and SunnComm will then confer and
use reasonable, good faith efforts to agree on a form and terms of disclosure
reasonably acceptable to both MM and SunnComm in light of the circumstances
under which the disclosure is required to be made, provided that if following
such notice and conferring MM and SunnComm are unable to agree on a mutually
acceptable form and terms of disclosure, then the party making the disclosure
shall have no liability to the other party to the extent such disclosure is
required by law provided such party makes reasonable efforts to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the other party's Confidential Information by the
tribunal requiring disclosure.
5.5 No Representations. MM and SunnComm understand and acknowledge that
neither party is making any representations or warranties, express or implied,
as to the accuracy or completeness of the Confidential Information, and neither
MM, SunnComm nor the officers, directors, employees, stockholders, owners,
affiliates or agents of either will have any liability to the party receiving
Confidential Information resulting from such party's use of or reliance on the
Confidential Information. Only those representations or warranties that are made
in a definitive agreement between MM and SunnComm when, as, and if it is
executed, and subject to such limitations and restrictions as may be specified
in such agreement, will have any legal effect.
5.6 Return or Destroy. Upon the written request of the other party, MM or
SunnComm, as the case may be, shall return to the disclosing party, within ten
days, all Confidential Information and all copies thereof if in written or other
tangible form. Where impractical to return copies, such copies shall be
destroyed. Within such ten-day period, if requested by the disclosing party, an
affidavit of the receiving party, duly sworn by an officer of such party, shall
be delivered to the disclosing party attesting to the return and destruction of
all Confidential Information.
5.7 Publicity. Except to the extent required by applicable securities laws,
neither MM nor SunnComm shall, except with the prior written consent of the
other party hereto, make any public announcement regarding the execution of this
Agreement or make use of or mention of SunnComm or MM's or any of their
respective clients' name, logo, or other trademarks, including, but not limited
to, in any press release, marketing materials, website, or any other
communications written or otherwise.
6. SunnComm Warranties. SunnComm represents and warrants to MM that:
(a) Rights. SunnComm has the right to enter into this Agreement and grant
to MM the rights granted herein.
(b) Non-Infringement. SunnComm warrants that the Products, as delivered by
SunnComm, do not infringe on any copyright, patent, or trade secret, and that
SunnComm possesses full and sufficient right to license the use of the Products
under this Agreement.
(c) Limited Warranty. For a period of thirty (30) days from the date of
delivery to the Customer the Products will perform substantially in accordance
with the functional specifications set forth in the documentation provided with
such Products. SunnComm's entire liability and the Customer's sole remedy under
this warranty shall be to require SunnComm to use reasonable efforts to repair
or replace the nonconforming Product. Any replacement Products will be warranted
for the remainder of the original warranty period or thirty (30) days from the
date of receipt by the Customer, whichever is longer. SunnComm shall have no
obligation under this limited warranty unless a claim for breach of warranty is
made within ten (10) days after the end of the applicable warranty period.
7. Limitation of Liability.
In no event shall MM be liable for special, incidental, consequential or
punitive damages, including, without limitation, any damages resulting from loss
of data, loss of profits, loss of business or loss of goodwill arising out of or
in connection with this Agreement or the performance of the Products, whether or
not SunnComm or its licensors has been advised of the possibility of such
damages.
8. Indemnification.
8.1 Indemnification by MM. MM shall indemnify and hold harmless SunnComm
and its officers, directors, employees and agents, from and against any and all
claims, demands, liabilities, losses, costs and expenses (including reasonable
attorneys fees and any fees of consulting professionals) of any kind whatsoever
levied against or incurred by SunnComm, its officers, directors, employees or
agents, arising directly or indirectly out of conduct of MM outside the scope of
this Agreement or MM's failure to perform any of its obligations under this
Agreement.
8.2 Indemnification by SunnComm. SunnComm shall indemnify and hold harmless
MM and its officers, managers, members, employees and agents, from and against
any and all claims, demands, liabilities, losses, costs and expenses (including
reasonable attorneys fees and any fees of consulting professionals) of any kind
whatsoever levied against or incurred by MM, its officers, directors, employees
or agents, arising directly or indirectly out of conduct of SunnComm outside the
scope of this Agreement or SunnComm's failure to perform any of its obligations
under this Agreement.
8.3 Infringement Indemnity. Each party hereto shall immediately notify the
other party of any infringements of rights in the Products which come to their
attention. SunnComm shall defend or, at its option, settle, any claim, action or
proceeding brought against MM that any Product infringes any United States
patent, copyright or trade secret, and shall indemnify MM against all damages
and costs finally awarded against MM in any such action or proceeding which
results from any such claim. SunnComm shall have no liability under this Section
8.3 unless MM (a) promptly notifies SunnComm in writing of the claim, action or
proceeding, (b) gives SunnComm full authority, information and assistance to
defend such claim, action or proceeding, and (c) gives SunnComm sole control of
the defense and settlement of such claim, action or proceeding and all
negotiations relating thereto. MM retains the right to be present and
represented by counsel, at its own expense, at all times during the litigation
and/or other discussions related to the proceedings. If a Product or any part
thereof becomes, or in SunnComm's opinion is likely to become, the subject of a
valid claim of infringement or the like under any United States patent,
copyright or trade secret law, SunnComm shall have the right, at its option and
expense, either to obtain a license permitting the continued use of the Product
or such part, to replace or modify it so that it becomes non-infringing, or to
terminate the license granted herein to market the Product. SunnComm shall have
no liability hereunder for any costs incurred or settlement entered into without
its prior written consent. SunnComm shall have no liability hereunder with
respect to any claim based upon (a) the combination of the Product with other
products not furnished by SunnComm or (b) any addition or modification to the
Product by any person or entity other than SunnComm.
9. Term and Termination.
9.1 Term. Except for Section 3.7(b)(iii), which shall become effective as
set forth in said Section, the term and effectiveness of this Agreement shall
commence upon occurrence of any the events described in Section 2 hereof and
shall continue in perpetuity, unless earlier terminated in accordance with this
Section 9 (the "Term") (and the parties hereby acknowledge that the following
termination provisions apply only from and after the date of effectiveness of
this Agreement).
9.2 Termination for Default. Either party may, at its option, terminate
this Agreement effective upon notice to the other party if the other party has
materially breached any provision of this Agreement and has failed to cure the
breach within thirty (30) days of notice of the breach, unless such breach is a
breach of Section 5 hereof, in which case termination shall be immediate if the
breach can not be cured. Notwithstanding the foregoing, if either party shall
fail to fulfill any of its material obligations hereunder and the other party
has previously sent two notifications to such party pursuant to this Section 9.2
of a failure to fulfill the same or similar obligations, the other party may,
despite any remedy or cure of such breaches in the past by the defaulting party,
terminate this Agreement by giving written notice of termination to the
defaulting party, effective immediately upon its sending. In the event of such
termination by MM due to SunnComm's default, MM shall be entitled to an
immediate refund of all license fees paid hereunder.
9.3 Termination for Insolvency. SunnComm may terminate this Agreement upon
written notice to MM if MM is liquidated or dissolved, or becomes insolvent, or
suffers a receiver, administrator or trustee to be appointed for it or any of
its undertakings or assets, or is deemed to be unable to pay its debts or shall
cease to carry on business, or makes a general assignment for the benefit of its
creditors or institutes or has instituted against it any proceeding under any
law relating to bankruptcy or insolvency or the reorganization or relief of
debtors.
9.4 Effect of Termination. Upon termination of this Agreement for any
reason, MM shall immediately cease (i) marketing the Products, and (ii) using
the Marketing Materials. The termination of this Agreement shall not affect the
license grant set forth in Section 3.2 of this Agreement or terminate the
obligations of MM set forth in Section 3.7(b)(iii) of this Agreement and
SunnComm's obligations set forth in Section 3.7(c) of this Agreement.
9.5 Effect of Termination on Customers. Any termination of this Agreement
shall not affect any Customer Agreement, as long as the Customer is not in
breach of such Agreement.
9.6 Return of Promotional Material and Confidential Information. Within
five days after expiration or termination of this Agreement, MM shall promptly
(i) submit to SunnComm a report including the information described in Section
3.8(a) of this Agreement for the period from the date of the last such report
through the date of expiration or termination, (ii) return to SunnComm all
copies of any Products, Confidential Information and Marketing Materials, (iii)
to the extent any such Products, Confidential Information or Marketing Material
can not be returned to SunnComm, erase or destroy all copies of such Products,
Confidential Information and Marketing materials under MM's control, including
all copies that are fixed or running in machines controlled by MM, and (iv) have
an authorized representative of MM certify in writing to SunnComm that MM has
complied with the requirements of this paragraph.
10. Dispute Resolution.
10.1 Matters Covered. Any dispute, controversy or claim between the parties
arising out of this Agreement, including any dispute as to the existence,
construction, validity, interpretation, enforceability or breach of this
Agreement (the "Dispute"), shall be exclusively and finally resolved as set
forth hereafter.
10.2 Meeting; Mediation. In the event of any such Dispute, a meeting (the
"Meeting") shall be held in Phoenix, Arizona promptly between the parties,
attended by individuals with decision-making authority regarding the Dispute to
attempt in good faith to negotiate a resolution of the Dispute. If within thirty
(30) days after such Meeting the parties have not succeeded in resolving the
Dispute, then the parties shall initiate non-binding mediation proceedings and
submit the Dispute to a mutually acceptable third-party mediator in Phoenix,
Arizona who is acquainted with dispute resolution methods. The parties will
participate in good faith in the mediation and the mediation process. The
mediation process shall be completed within sixty (60) days after the date of
the Meeting.
10.3 Arbitration. If the Dispute is not resolved by mediation, then either
party may initiate a binding arbitration action conducted in accordance with the
Commercial Arbitration Rules (the "Rules") of the American Arbitration
Association ("AAA"). The parties shall attempt to select a single neutral
arbitrator to hear the Dispute. Such arbitrator need not be affiliated with the
AAA. If the parties fail to agree on a single neutral arbitrator within ten (10)
days of the filing of the demand for arbitration, then three neutral arbitrators
shall be appointed in accordance with the Rules. The arbitration award shall be
in writing and shall specify the factual and legal basis for the award. The
arbitration shall be conducted in Phoenix, Arizona, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Neither party shall be entitled to seek or recover punitive damages in
considering or fixing any award under these proceedings.
10.4 Costs. The costs of the mediation and arbitration, including any
mediator's fees, AAA administration fee, the arbitrator's fee, and costs for the
use of facilities during the hearings, shall be borne equally by the parties.
Attorneys' fees may be awarded to the prevailing or most prevailing party at the
discretion of the arbitrator(s).
10.5 Other. Any dispute relating to or in connection with the
enforceability of these dispute resolution provisions shall be brought only in a
court in Phoenix, Arizona for that purpose.
11. General.
11.1 Independent Contractors. The relationship of SunnComm and MM shall be
that of independent contractors and not employees, agents, joint venturers or
partners. MM shall be solely responsible to determine the method, details and
means of performing its services hereunder. MM assumes full and sole
responsibility for the payment of all compensation and expenses of its employees
and for all of their state and federal income tax, unemployment insurance,
Social Security and other applicable employee withholdings. MM shall not hold
itself out as an agent of SunnComm nor shall MM contract or otherwise make any
commitments to any third party on SunnComm's behalf without SunnComm's prior
consent.
11.2 Entire Agreement. This Agreement (including any and all attachments
hereto), constitutes the entire understanding and agreement between the parties
with respect to the subject matter hereof, supersedes all prior oral and written
communications between the parties with respect to the subject matter hereof,
and may be amended, modified or changed only in writing when signed by both
parties.
11.3 Assignment. This Agreement may be assigned in whole or in part by MM
pursuant to any merger, consolidation or other reorganization involving MM,
without the consent of SunnComm. SunnComm may not assign or transfer this
Agreement, in whole or in part, without the prior express written consent of MM.
Agreement shall be binding upon, and shall inure to the benefit of, SunnComm and
MM and each of their legal representatives, successors and permitted assigns.
11.4 Waiver; Consent. No term of this Agreement will be deemed waived, and
no breach of this Agreement excused, unless the waiver or consent is in writing
signed by the party granting such waiver or consent.
11.5 Governing Law. This Agreement, its construction and enforcement shall
be governed by the laws of the State of Nevada, without giving effect to
conflict of law principles.
11.6 Severability. If any term or provision of this Agreement shall be
found by a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable, the same shall not affect the other provisions hereof or the
whole of this Agreement, but such terms or provisions shall be deemed modified
to the extent necessary in the court's opinion to render such terms or
provisions enforceable, and the rights and obligations of the parties shall be
construed and enforced accordingly, preserving to the fullest permissible extent
the intent and agreements of the parties herein set forth.
11.7 Force Majeure. Neither party shall be liable to the other for any
failure or delay in performance of its obligations hereunder on account of
terrorist attacks, strikes, shortages, riots, insurrections, fires, floods,
storms, explosions, earthquakes, acts of God, war, governmental action or any
other cause which is beyond the reasonable control of such party.
11.8 Notices. All notices, requests and other communications permitted or
required under this Agreement must be in writing, and shall deemed to have been
given if faxed (with transmission acknowledgement received), delivered
personally or by overnight courier service, sent by electronic mail or mailed by
certified or registered mail (return receipt requested) as follows:
To SunnComm: SunnComm International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to: Wees Law Firm, L.L.C.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
To MM: MediaMax Technology Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
Email:
Attention:
With a copy to: The ▇▇▇▇▇▇▇▇ Law Group, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or to such other address, fax number or electronic mail address of which any
party may notify the other parties as provided above. Notices shall be deemed
given as of the date of any fax transmission acknowledgement, upon personal
delivery or delivery by overnight courier service, receipt of any reply e-mail
confirming delivery of such e-mail or five days after deposit of any certified
or registered letter in the mail.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SUNNCOMM INTERNATIONAL, INC. MEDIAMAX TECHNOLOGY CORPORATION
By ______________________________ By___________________________
Name: Name:
Title: Title:
SCHEDULE A
Description of Products
MediaMax CD and DVD copy management, content protection and enhancement
technology. This technology provides an alternative, authorized process to play,
move and share songs from music CDs in a legally approved and controlled
process. It provides a compromise solution that delivers limited rights and
enhanced features to CD buyers without allowing freedom to steal content from
the artist, producer, or record label.
MediaCloq CD and DVD technology allowing personal copies while inhibiting
unauthorized duplication of digital content
Perfect Placement is a product / service offering available through the MediaMax
interface. It is a centrally-served direct response marketing environment which
provides a mechanism for the record labels and artists to advertise their back
catalogs, merchandise, web sites and take advantage of cross-promotional
opportunities. Perfect Placement also allows record labels to generate third
party ad revenue based on targeted advertising and sponsorships available
through the MediaMax CD.
Other products currently under development are: MediaMax for DVDs, MediaMax in a
standalone computer for Mastering Studios, MediaMax used in conjunction with a
Music Kiosk that creates "protected CDs", MediaMax for CD+G (Karaoke CDs),
MediaMax customized for confidential corporate audio/video content on CDs &
DVDs.
SCHEDULE B
Trademarks
MEDAMAX (assigned to MM on 3/16/05) MEDIAMAX TECHNOLOGY (assigned to MM on
3/16/05) MEDIAMAX TECHNOLOGIES (assigned to MM on 3/16/05) MEDIAMAX CD3 PLAY IT
LOUD, PLAY IT LEGAL PLAY MOVE SHARE SECURE BURN ON-THE-FLY TECHNOLOGY CD-V
PROMOPLAY TUNESHARE MUSICMAIL STUDIOMAX CD-3 TECHNOLOGY EXPANDED EXPERIENCE
DIGITAL CONTENT CLOAKING DC2 MEDIACLOQ SUNNCOMM
SCHEDULE C
Assignment of Trademarks
Assignment of TRADEMARKS AND Pending Trademark ApplicationS
WHEREAS, SunnComm International, Inc., a Nevada corporation having its
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ,
has adopted, used, is using and is the owner of the following trademarks for
which applications either have not been filed or are now pending in the United
States Patent and Trademark Office, as indicated below:
Serial No. Date of Filing Trademark
78567444 2/15/05 MEDIAMAX CD3
78567439 2/15/05 PLAY IT LOUD, PLAY IT LEGAL
78567436 2/15/05 PLAY MOVE SHARE
78323443 11/5/03 SECURE BURN
78442503 6/28/04 ON-THE-FLY TECHNOLOGY
78389250 3/23/04 CD-V
76384380 3/18/02 PROMOPLAY
N/A ▇/▇ ▇▇▇▇▇▇▇▇▇
▇/▇ ▇/▇ ▇▇▇▇▇▇▇▇▇
▇/▇ N/A STUDIOMAX
N/A N/A CD-3 TECHNOLOGY
N/A N/A EXPANDED EXPERIENCE
N/A N/A DIGITAL CONTENT CLOAKING
N/A N/A DC2
N/A N/A MEDIACLOQ
N/A N/A SUNNCOMM
WHEREAS, MediaMax Technology Corporation, a Nevada corporation, has entered
into an agreement with SunnComm International, Inc. pursuant to which said
trademarks and pending applications are to be assigned to MediaMax Technology
Corporation
NOW, THEREFORE, in consideration of the sum of one dollar and other
good and valuable consideration, the receipt of which is hereby acknowledged,
SunnComm International, Inc., hereby assigns to MediaMax Technology Corporation
all right, title and interest in the United States in and to said trademarks and
said applications therefor (where applicable), together with the goodwill of the
business symbolized by said trademarks and the applications to register said
trademarks (where applicable).
Signed at Phoenix, Arizona, this ________ day of _____________, 2005.
SUNNCOMM INTERNATIONAL, INC.
By:_____________________________________
Print Name and Title:
_______________________________________
State of Arizona )
County of ) ss.
_______________________________________)
On this _______ day of __________________, 2005, personally appeared
_________________, to me known and known to me to be _____________ of SunnComm
International, Inc., the assignor above named, and acknowledged that he executed
the foregoing Assignment on behalf of the corporation pursuant to authority duly
received.
Notary Public
SCHEDULE D
Source Code Escrow Agreement
This Source Code Escrow Agreement, dated as of _________, 2005, by and
among [ ] ("Escrow Agent") located at [ ]; MediaMax Technology Corporation, a
Nevada corporation with a principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Beneficiary"), and SunnComm International,
Inc., a Nevada corporation with a principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Depositor").
RECITALS:
A. Pursuant to a Marketing Agreement dated February 2, 2004, or a Second Amended
and Restated Exclusive Marketing Agreement dated [ ] (the "Amended Agreement")
(whichever such agreement is in effect, the "License Agreement"), Depositor has
licensed to Beneficiary the marketing rights to certain proprietary technology
in object code form as described in the License Agreement (the "Technology").
B. Depositor desires to ensure the availability to Beneficiary of the source
code and all necessary proprietary information related to the Technology (the
"Source Material") in the event any of the conditions set forth in Section 3 of
this Agreement should occur.
C. The Source Material is the proprietary and confidential information of
Depositor, and Depositor desires to protect such ownership and confidentiality.
AGREEMENT:
1. Delivery of Source Material to Escrow Agent. Within five days of the
execution of this Agreement, Depositor shall deliver to Escrow Agent a parcel
(the "Parcel") sealed by Depositor, which Depositor represents and warrants is
the Source Material. At the time of the initial delivery to Escrow Agent and any
supplementary deliveries to Escrow Agent Depositor shall also supply a fully
executed description of the deposit in the form attached hereto as Annex A-1.
2. Acknowledgment of Receipt by Escrow Agent. Escrow Agent shall promptly
acknowledge to Beneficiary and Depositor, in writing, the receipt of the Parcel
and of any supplements to the Source Material which are added to the Parcel.
Escrow Agent will provide an account status report to the Beneficiary and
Depositor on a semi-annual basis.
3. Terms and Conditions of the Source Material Escrow. The Parcel shall be held
by Escrow Agent upon the following terms and conditions:
(a) In the event that Escrow Agent is notified by Beneficiary that any one
or more of the events described in Section 3.9 of the Amended Agreement has
occurred and is continuing (regardless of whether or not the Amended Agreement
is in effect by its own terms) and that Beneficiary has given Depositor written
notice of such event (the "Release Condition"), Escrow Agent shall immediately
notify Depositor of its receipt of the Beneficiary's notice and shall provide a
copy of such notice to Depositor promptly thereafter.
(b) If Escrow Agent does not receive Contrary Instructions from Depositor,
as defined below, within thirty (30) days of the giving of such notice to
Depositor, Escrow Agent shall deliver a copy of the Source Material to the
Beneficiary demanding delivery within sixty (60) days after the date of the
Beneficiary's original notice to Escrow Agent. "Contrary Instructions" for the
purposes of this Section 3 shall mean the filing of a notice with Escrow Agent
by Depositor, with a copy to the Beneficiary demanding delivery, stating that
the Release Condition has not occurred or has been cured.
(c) If Escrow Agent does receive Contrary Instructions from Depositor
within thirty (30) days of the giving of such notice to Depositor, Escrow Agent
shall not deliver a copy of the Source Material to the Beneficiary, but shall
continue to store the Parcel until: (1) otherwise directed by the Depositor and
Beneficiary jointly, (2) Escrow Agent has received notice of the resolution of
the dispute by a court of competent jurisdiction, or (3) Escrow Agent has
deposited the Parcel with a trustee selected by a court of competent
jurisdiction for the purpose of determination of its obligations under this
Agreement.
(d) Upon receipt of Contrary Instructions from Depositor, Escrow Agent
shall have the absolute right, at Escrow Agent's election to file an action in
interpleader requiring the Depositor and Beneficiary to answer and litigate
their several claims and rights among themselves. Escrow Agent is hereby
authorized to comply with the applicable interpleader statutes of the State of
Nevada in this regard.
4. Term of Agreement. This Agreement shall remain in effect for so long as
either License Agreement is in effect.
5. Compensation of Escrow Agent. Depositor agrees to pay Escrow Agent reasonable
compensation for the services to be rendered hereunder, in accordance with
Escrow Agent's then current schedule of fees, and will pay or reimburse Escrow
Agent upon request for all reasonable expenses, disbursements and advances,
including duplication charges and reasonable attorneys' fees, incurred or made
by it in connection with carrying out its duties hereunder.
6. Limitation of Duties of Escrow Agent. Escrow Agent undertakes to perform only
such duties as are expressly set forth herein. Escrow Agent has no knowledge of,
and makes no representations with respect to, the contents or substance of the
Parcel, the Technology or the Source Material.
7. Limitation of Liability of Escrow Agent. Escrow Agent may rely on and shall
sustain no liability as a result of acting or refraining from acting upon any
written notice, instruction or request furnished to Escrow Agent hereunder which
is reasonably believed by Escrow Agent to be genuine and to have been signed or
presented by a person reasonably believed by Escrow Agent to be authorized to
act on behalf of the relevant party hereto. Escrow Agent shall not be liable for
any action taken by it in good faith and believed by it to be authorized or
within the rights or powers conferred upon it by this Agreement. Escrow Agent
may consult with counsel of its own choice, and shall have full and complete
authorization and protection for any action taken or suffered by it hereunder,
in good faith and in accordance with the opinion of such counsel.
8. Indemnification of Escrow Agent. Depositor and Beneficiary shall jointly and
severally indemnify, defend, and hold harmless Escrow Agent and its agents and
employees (collectively, "Escrow Agent") from any and all claims, demands,
liability, costs and expenses (including attorneys' fees) incurred by Escrow
Agent directly or indirectly arising from or relating to the Source Material
and/or Escrow Agent's performance of its duties under this Agreement.
9. Record Keeping and Inspection of Source Material. Escrow Agent shall maintain
complete written records of all materials deposited by Depositor pursuant to
this Agreement. During the term of this Agreement, Depositor shall be entitled
at reasonable times during normal business hours and upon reasonable notice to
Escrow Agent to inspect the records of Escrow Agent maintained pursuant to this
Agreement and to inspect the facilities of Escrow Agent and the physical
condition of the Source Material.
10. Technical Verification. Beneficiary reserves the option to request Escrow
Agent to verify the Source Material for completeness and accuracy. Escrow Agent
may elect to perform the verification at its site or at the Depositor's site.
Depositor agrees to cooperate with Escrow Agent in the verification process by
providing its facilities and computer systems and by permitting Escrow Agent and
at least one employee of Beneficiary to be present during the verification of
Source Material.
11. Restriction on Access to Source Material. Except as required to carry out
its duties hereunder, Escrow Agent shall not permit any Escrow Agent employee,
Beneficiary or any other person access to the Source Material, unless consented
to in writing by Depositor. Escrow Agent shall use its best efforts to avoid
unauthorized access to Source Material by its employees or any other person.
12. Updates of the Source Material.
(a) Depositor shall provide promptly as developed from time to time,
supplements of the Source Material, which shall include modifications, updates,
new releases and documentation.
(b) A representative of Escrow Agent shall add such supplements into the
Parcel containing the Source Material without removing the Source Material.
(c) Depositor shall send to Escrow Agent a duplicate of the Source Material
within three (3) days after receiving written notice from Escrow Agent that the
Source Material has been destroyed or damaged.
(d) All supplements to Source Material and duplicate Source Material shall
be subject to the terms and provisions of this Agreement.
13. Bankruptcy. Depositor and Beneficiary acknowledge that this Agreement is an
"agreement supplementary to" the License Agreement as provided in Section 365
(n) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (the "Bankruptcy Code"). Depositor
acknowledges that if Depositor, as a debtor in possession or a trustee in
Bankruptcy in a case under the Bankruptcy Code, rejects the License Agreement or
this Agreement, Beneficiary may elect to retain its rights under the License
Agreement and this Agreement as provided in Section 365 (n) of the Bankruptcy
Code. Upon written request of Beneficiary to Depositor or the Bankruptcy
Trustee, Depositor or such Bankruptcy Trustee shall not interfere with the
rights of Beneficiary as provided in the License Agreement and this Agreement,
including the right to obtain the Source Material from Escrow Agent.
14. Notices. Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date notice is served personally or sent via facsimile with confirming
transmittal report, one business day after the date if sent by overnight
courier, or five (5) days after the date of mailing if sent registered mail,
postage prepaid, return receipt requested, and addressed as follows or to such
other address or facsimile number as either party may, from time to time,
designate in a written notice given in like manner:
To Depositor: SunnComm International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To Beneficiary: MediaMax Technology Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To Escrow Agent: [ ]
15. Miscellaneous Provisions.
(a) Waiver. Any term of this Agreement may be waived by the party entitled
to the benefits thereof, provided that any such waiver must be in writing and
signed by the party against whom the enforcement of the waiver is sought. No
waiver of any condition, or of the breach of any provision of this Agreement, in
any one or more instances, shall be deemed to be a further or continuing waiver
of such condition or breach. Delay or failure to exercise any right or remedy
shall not be deemed the waiver of that right or remedy. (b) Modification or
Amendment. Any modification or amendment of any provision this Agreement must be
in writing, signed by the parties hereto and dated subsequent to the date
hereof.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
(d) Headings; Severability. The headings appearing at the beginning of the
sections contained in this Agreement have been inserted for identification and
reference purposes only and shall not be used to determine the construction or
interpretation of this Agreement. If any provision of this Agreement is held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
(e) Further Assurances. The parties agree to perform all acts and execute
all supplementary instruments or documents which may be reasonably necessary to
carry out the provisions of this Agreement.
(f) Entire Agreement. This Agreement, including the attachments hereto,
contains the entire understanding between the parties and supersedes all
previous communications, representations and contracts, oral or written, between
the parties, with respect to the subject matter hereof. It is agreed and
understood that this document and agreement shall be the whole and only
agreement between the parties hereto, with regard to these escrow instructions
and the obligations of Escrow Agent herein, in connection with this Agreement,
and shall supersede and cancel any prior instructions. Escrow Agent is
specifically directed to follow these instructions only and Escrow Agent shall
have no responsibility to follow the terms of any prior agreements or
understandings.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MediaMax Technology Corporation
(Beneficiary)
By:________________________________________
Print Name and Title:
SunnComm International, Inc. (Depositor)
By:________________________________________
Print Name and Title:
[ ] (Escrow Agent)
By:________________________________________
Print Name and Title:
ANNEX A-1
DESCRIPTION OF DEPOSIT
Below is a description of the deposit and the acknowledgment that the deposit
arrived at Escrow Agent in good order. It is completed by the Depositor and
visually inspected by Escrow Agent. A copy of this form will be shared with
Beneficiary. (As multiple deposits are made please make copies of this form and
number them appropriately. For example, the initial deposit will be Annex "A-1,"
the next "A-2" and so on.)
1. Source Material Deposit
Product Name and Description:
Version:
2. Type of Media
-there can be more than one type (e.g., diskette, tape, hard copy materials,
etc.)
-please include the quantity of type (i.e. two (2) diskettes)
________________________________________________________________________________
3. Please check one of the following:
Initial Deposit____ Supplemental____ Replacement____*
*If Replacement then: Destroy Deposit_____ or Return Deposit_____
________________________________________________________________________________
Completed by: Visually verified by:
DEPOSITOR ESCROW AGENT
By: ______________________________ By:___________________________________
Name:_____________________________ Name:_________________________________
Title:____________________________ Title:________________________________
Date:_____________________________ Date:_________________________________