EXECUTION COPY
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("AGREEMENT") is made and entered into as of
October 19, 2000, between MCY Music World, Inc., a Delaware corporation ("MCY"),
and Applied Digital Solutions, Inc., a Missouri corporation ("ADSX").
In consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree as follows:
1. LICENSE.
1.1 MCY hereby grants to ADSX a perpetual (unless terminated as set forth
herein), exclusive (for the purposes set forth in Section 1.2),
nontransferable, worldwide paid-up license, subject to the terms and
conditions of this Agreement, to use:
(a) all proprietary software of MCY relating to the digital encryption
and secure distribution of audio and video content, including
without limitation software related to streaming video and
streaming audio technology and MCY's NETrax(TM) software (the "MCY
TECHNOLOGY"); and
(b) any designs, computer programs, data and artistic elements which
have been or are in the course of being created for MCY by Sapient
Corporation, and which are owned by MCY pursuant to its agreement
with Sapient Corporation, or which are licensed to MCY by Sapient
Corporation and which MCY has the right to sublicense (if any)
(the "SAPIENT TECHNOLOGY" and together with the MCY Technology
collectively the "LICENSED MATERIALS").
1.2 The license granted to ADSX hereunder shall entitle ADSX to use the
Licensed Materials in the industries set out in Schedule "A" attached
hereto but in no other industries.
1.3 Any computer programs included as part of the Licensed Materials shall
be provided in both source code and object code form, and ADSX shall
have the right to receive related technical documentation for any such
software. The license granted hereunder shall entitle ADSX to receive
any new releases, or other modifications or alterations to:
(i) any of the MCY Technology, made at any time after
delivery by MCY to ADSX hereunder and offered by MCY
to its customers generally, and
(ii) any of the Sapient Technology, made at any time after
delivery by MCY to ADSX hereunder and provided to MCY
by Sapient,
in each case where any such releases or other modifications or
alterations are not priced by MCY or Sapient as separate new products
or options. ADSX acknowledges that it shall be responsible for making
all necessary arrangements at its own expense for obtaining any other
modifications or alterations to the Licensed Materials or for obtaining
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other products to be used with the Licensed Materials, that may be
necessary to ensure that the Licensed Materials have any features or
meet any standards that may be required by ADSX or that are required by
ADSX to enable it to use the Licensed Materials for the purposes
intended by ADSX. Any modifications or alterations made solely by or on
behalf of ADSX to any of the Licensed Materials supplied by MCY shall
belong to ADSX, but shall be subject to the restrictions and conditions
set out in this Agreement.
1.4 ADSX shall be entitled pursuant to the license granted hereunder to use
the Licensed Materials as an application or similar service provider
and to sublicense the Licensed Materials to the customers of ADSX,
provided that such sublicenses are granted only in conjunction with the
provision of services by ADSX to its customers and not to enable such
customers to further sublicense the use of the Licensed Materials to
others. Except as otherwise expressly stated in this Agreement, ADSX
shall not be entitled to rent, lease, loan or otherwise transfer or
grant any rights in or to the Licensed Materials to any other person,
and ADSX shall not disassemble, decompile or reverse engineer the
Licensed Materials. ADSX shall not use any of the Licensed Materials in
any way not expressly provided for in this Agreement. ADSX acknowledges
that there are no implied licenses and that ADSX shall not use the
Licensed Materials in any manner that would exceed the scope of the
license granted herein.
1.5 ADSX shall not reproduce, duplicate, copy, sell, or otherwise disclose,
or disseminate the Licensed Materials, including operating
instructions, user manuals, and training materials, in any medium
except as authorized herein. ADSX may make copies of the Licensed
Materials, in machine readable form, only as is reasonably necessary
for its use of the Licensed Materials as permitted herein and for
archival, testing and backup purposes.
1.6 The right to use the Licensed Materials granted to ADSX hereunder shall
include use of the Licensed Materials by any Affiliate (as hereinafter
defined) of ADSX and any successor of any Affiliate. For purposes of
this Agreement, "AFFILIATE" means any entity or person which, directly
or indirectly, controls, is controlled by or is under common control
with ADSX. ADSX shall cause any Affiliate or successor to comply with
the terms and conditions of this Agreement in the same manner as ADSX,
and shall indemnify MCY for any loss, damage or expense incurred by MCY
as a result of any non-compliance with this Agreement by any Affiliate
or successor.
1.7 Except as expressly provided herein, the license granted to ADSX with
respect to the Licensed Materials does not include the right to grant
sublicenses to any portion of the Licensed Materials without the prior
written authorization of MCY, which authorization may be withheld by
MCY at its sole discretion. In each case in which ADSX is authorized
under this Agreement to grant such sublicenses, or in which MCY
expressly permits ADSX to grant any such sublicenses, ADSX shall
require each sublicensee, before it may use or install the sublicensed
portion of the Licensed Materials, to execute a written license
agreement in form and substance that is approved by MCY, and that at a
minimum contains the same restrictions and conditions that are
applicable to the use of the Licensed Materials by ADSX, as set forth
hereunder. ADSX shall indemnify MCY
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for all losses, costs, damages, expenses, and liabilities caused by a
sublicensee's failure to honor the terms of such sublicense, or by
ADSX's failure to include the required terms in its sublicense
agreements with its sublicensees.
2. PAYMENT, PRICES.
2.1 In consideration of the rights and licenses granted by MCY to ADSX
hereunder, ADSX shall pay MCY a one-time license fee of U.S.
$40,000,000 (the "LICENSE FEE"). The License Fee shall be paid in
common stock of ADSX in accordance with a certain agreement entitled
the MCY Agreement made between MCY, ▇▇▇.▇▇▇, Inc. and ADSX dated even
date herewith (the "MCY AGREEMENT").
2.2 The License Fee is exclusive of any federal, state, municipal, or other
governmental taxes, duties, fees, excises, or tariffs now or hereafter
imposed in connection with the production, storage, licensing, sale,
transportation, import, export, use or modification of the Licensed
Materials, or otherwise arising out of or in connection with this
Agreement. ADSX shall be responsible for, and where MCY is required to
collect any such amounts, shall reimburse MCY for, all such taxes,
duties, fees, excises, or tariffs, but ADSX shall not be liable for any
governmental or local taxes imposed on MCY's corporate income.
3. DELIVERY OF LICENSED MATERIALS
3.1 ADSX acknowledges that as of the date of this Agreement, the Licensed
Materials consisting of the Sapient Technology have not been completed,
but instead, are in the process of being developed. MCY shall deliver
to ADSX (i) the MCY Technology within 45 days after the closing under
the Purchase Agreement, and (ii) the Sapient Technology within 45 days
after MCY's receipt of the Sapient Technology from Sapient Corporation.
MCY shall use reasonable efforts to deliver or to cause to be delivered
the Sapient Technology as set forth above, but shall not be liable for
any delays in meeting any delivery dates. All deliveries will be made
to ADSX at the address of ADSX set forth in this Agreement. ADSX
acknowledges that the Licensed Materials may be provided in printed
and/or electronic form.
3.2 ADSX acknowledges that the Licensed Materials do not include any
software, specifications, designs, documentation or any other products
belonging to any third party, other than such (if any) as may be
licensed to MCY from Sapient and that MCY is entitled to sublicense to
ADSX, and ADSX shall be responsible at its own expense for obtaining
directly from any third party such licenses or other rights to any
software or other third party products that ADSX will require from time
to time for use in conjunction with any of the Licensed Materials and
for installing configuring, maintaining and using any such products.
Without limiting the foregoing, ADSX acknowledges that it will require
licenses for any or all of the software products described in Schedule
"B" attached hereto. MCY does not warrant which software products that
ADSX will require in order to use the Licensed Materials for its
intended purposes, nor does MCY make any representation or warranty to
ADSX as to the availability or prices of any software or other products
ADSX will require for use with the Licensed Materials, provided,
however, that upon request by ADSX and at ADSX' expense, MCY will
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provide reasonable information to assist ADSX in obtaining such
products. ADSX also acknowledges that it will be responsible at its own
expense for selecting, procuring, configuring and maintaining any
hardware products that will be required by ADSX for use with the
Licensed Materials, provided that upon request by ADSX and at ADSX'
expense, MCY will provide reasonable information to assist ADSX in
selecting and configuring hardware products to be used with the
Licensed Materials.
4. SERVICES FOR MAINTENANCE AND/OR MODIFICATION OF LICENSED MATERIALS.
4.1 Except as provided in Section 1.3, MCY shall not be responsible for
providing or causing to provide any services or performing any work
that may be requested or required by ADSX with respect to the use,
maintenance, support, modification, enhancement or alteration of any of
the Licensed Materials. ADSX acknowledges that its ability to use any
software or any other components of the Licensed Materials for its
intended purposes may require ADSX to enter into agreements with MCY or
the developers of the applicable components of the Licensed Materials,
or with other third parties, including agreements for the support and
maintenance of any software products forming part of the Licensed
Materials. ADSX shall be solely responsible for entering into such
agreements or otherwise making any such arrangements, and for paying
any fees required in connection therewith.
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5. TITLE TO LICENSED MATERIALS.
5.1 ADSX acknowledges that MCY or its licensors own all right, title and
interest, including all copyright, patent rights, trademark rights,
trade secret rights and all other intellectual property rights, in and
to the Licensed Materials.
5.2 ADSX shall include in any copies of the Licensed Materials or
associated documentation made by ADSX, including any copies of any
modified or altered versions of the Licensed Materials made by ADSX,
such copyright or other proprietary rights notices as may be contained
on the copies of the Licensed Materials originally provided by MCY to
ADSX, or as may be reasonably requested by MCY from time to time.
6. WARRANTY.
6.1 ADSX acknowledges that the Licensed Materials consisting of the Sapient
Technology are in the course of being developed, and accordingly, MCY
does not provide any representation or warranty that the Licensed
Materials will have any features or meet any standards that may be
requested by ADSX, or will otherwise meet ADSX's requirements.
6.2 MCY represents and warrants to ADSX that it is the owner of the
Licensed Materials or otherwise has the right to grant to ADSX the
licenses set forth in this Agreement without violating any rights of
any third party, including Sapient, and that there is currently no
actual or threatened suit or claim by any such third party based on an
alleged violation of such right by MCY provided, however, that ADSX's
sole and exclusive remedy, and MCY's sole and exclusive obligation to
ADSX, for breach of this warranty shall be to provide the Intellectual
Property Indemnification set forth in Section 8 below.
6.3 THE WARRANTIES CONTAINED IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, AND MCY EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT WITH
RESPECT TO THE LICENSED MATERIALS OR THE PERFORMANCE OF ANY OBLIGATIONS
HEREUNDER.
7. LIMITATION OF LIABILITY.
7.1 MCY's aggregate liability to ADSX under this Agreement or for any other
reason relating to the products and services provided under this
Agreement, including claims for contribution or indemnity, and whether
the claim is in contract, breach of warranty, strict liability, tort
(including negligence) or otherwise, shall be limited to not more than
$1,000,000. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
DAMAGES FOR LOST PROFITS OR LOSS OF USE, OR FOR ANY LOSS OF DATA, FOR
ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
8.1 If notified promptly in writing of any action brought against ADSX
based on a claim that the Licensed Materials infringe any valid United
States patent, copyright, trademark or trade secret of a third party,
MCY shall indemnify, defend and hold harmless ADSX and its officers,
directors and employees against such action at MCY's expense and pay
all damages finally awarded in such action or settlement and any
expenses (including reasonable attorneys' fees) which are attributable
to such claim. MCY shall have sole control of the defense of any such
action and all negotiations for its settlement or compromise. ADSX
shall cooperate reasonably with MCY in the defense, settlement or
compromise of any such action. Such cooperation shall be at MCY's
expense. In the event that a final injunction is obtained against
ADSX's use of the Licensed Materials, or if MCY reasonably believes
that ADSX's use of the Licensed Materials could be so enjoined, or if
in MCY's opinion any of the Licensed Materials is likely to become the
subject of a successful claim of such infringement, MCY shall, at its
expense, (i) procure for ADSX the right to continue using the Licensed
Materials as provided in this Agreement, (ii) replace or modify the
Licensed Materials so that they become non-infringing (so long as the
functionality of the Licensed Materials is essentially unchanged) or,
in the event neither of the previous two options can be effected by
MCY, (iii) terminate this Agreement with respect to the applicable
portion of the Licensed Materials and the rights granted hereunder, and
refund to ADSX a reasonable amount on account of that portion of the
License Fee paid to MCY for the applicable portion of the Licensed
Materials. This Section states MCY's entire liability and ADSX's
exclusive remedy for infringement.
8.2 Notwithstanding the foregoing, MCY shall have no liability to ADSX
under this Section 8 to the extent that any infringement or claim
thereof is based upon (i) the operation or use of any of the Licensed
Materials in combination with any equipment or software not supplied by
MCY where the Licensed Materials would not itself be infringing, (ii)
compliance with designs, specifications or instructions provided by
ADSX, (iii) use of any of Licensed Materials in an application or
environment for which it was not designed or (iv) modifications of any
of the Licensed Materials by anyone other than MCY where the unmodified
version of the Licensed Materials would not be infringing.
8.3 THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF
MCY WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL OR
PROPRIETARY RIGHTS BY THE LICENSED MATERIALS OR THEIR USE.
9. CONFIDENTIALITY AND NONDISCLOSURE.
9.1 Each party may have access to Confidential Information (as defined
below) of the other party (the "DISCLOSING PARTY"), during the term of
this Agreement. Each party agrees that it will not use or disclose to
any third party any Confidential Information except as permitted by
this Agreement or as authorized by the Disclosing Party's prior written
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consent. Each party that is a recipient of Confidential Information
(the "RECIPIENT") shall employ the same degree of care in preventing
the disclosure of the Confidential Information to a third party (or
parties) as it uses with regard to its own confidential information of
similar importance, provided that in no event shall the Recipient
employ less than a reasonable degree of care. The Recipient shall
disclose Confidential Information only to those of its employees who
have a need to know the Confidential Information for purposes of
performing or exercising rights granted under this Agreement and shall
not use the Confidential Information of the other except for purposes
of performing or exercising rights granted under this Agreement. The
Recipient may disclose Confidential Information to regulatory
authorities with jurisdiction over the Recipient provided it gives the
other party prior notice of such disclosure. Neither party will use the
other party's name or otherwise refer to the other party in any written
materials without the prior written consent of the other party in each
instance.
9.2 For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means
non-public information. Confidential Information may include (but is
not limited to) business methods, data, information, records, plans,
and concepts. ADSX agrees to treat the Licensed Materials as MCY's
Confidential Information. Confidential Information does not include
information that: (i) is or becomes publicly available through no act
or omission of the Recipient of the Confidential Information; (ii) is
intentionally disclosed to a third party by the party owning the
Confidential Information without restrictions on disclosure; (iii) is
rightfully acquired by the Recipient from a third party not under a
confidentiality restriction; (iv) is independently developed, which
independent development can be shown by written evidence; or (v) is
required to be disclosed under operation of law or court order.
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9.3 On MCY's reasonable request, ADSX will furnish MCY with a written
statement, certified by an officer of ADSX, confirming that the
Licensed Materials are being used by ADSX in accordance with this
Agreement.
10. AUDIT RIGHTS.
10.1 At MCY's request, ADSX shall provide MCY with a report detailing its
use of the Licensed Materials. Upon reasonable notice provided by MCY
to ADSX, MCY may audit ADSX's records to ensure compliance by ADSX with
this Agreement. Any such audit will be conducted during regular
business hours at ADSX's offices, shall not interfere unreasonably with
ADSX's business activities and shall be subject to the confidentiality
provisions of this Agreement.
11. TERM/TERMINATION.
11.1 This Agreement is effective as at the date set forth above, and
continues until terminated as provided herein, or by agreement of both
parties. Either MCY or ADSX may terminate this Agreement if the other
party is in material breach of any material obligation under this
Agreement (including the obligation to pay amounts due hereunder) and
fails to cure such nonperformance within thirty (30) days following
written notice of such failure. MCY may terminate this Agreement if, as
required under Section 1(c) of a certain MCY Agreement by and between
MCY and ADSX dated of even date herewith (the "MCY Agreement"), ADSX
fails to cause the registration statement on Form S-3 to be declared
effective by the Commission (as defined in the MCY Agreement) by no
later than seventy-five (75) days from the date hereof. This Agreement
may also be terminated in the manner and on the terms set out in
Section 4 of the Escrow and Payment Agreement (the "Escrow and Payment
Agreement") which is incorporated in and forms part of the MCY
Agreement, in which case the rights and obligations of the parties upon
termination shall be as set forth in the Escrow and Payment Agreement.
11.2 Upon termination of this Agreement for any of the above reasons, all
licenses granted hereunder shall terminate and if the Licensed
Materials have not been delivered to ADSX at the time of termination,
MCY shall have no obligation to effect such delivery and if the
Licensed Materials have been delivered, ADSX will immediately destroy
the Licensed Materials and all copies in any form, provided, however,
that except in the case of termination in accordance with the Escrow
and Payment Agreement, if ADSX has paid all amounts owing to MCY as of
the termination date, and ADSX is in compliance with and remains
subject to the provisions of Articles 1, 5 , 6, 7, 8, 9, 10, and 12,
the licenses granted hereunder shall survive following the termination
of this Agreement. However, MCY may terminate ADSX's use of any of the
Licensed Materials upon a material breach of any of the surviving
sections.
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12. GENERAL.
12.1 WAIVER/AMENDMENT. No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless in writing and
signed by the party against whom such waiver, amendment, or
modification is sought to be enforced. No failure or delay by either
party in exercising any right, power or remedy under this Agreement,
except as specifically provided herein, shall be deemed as a waiver of
any such right, power, or remedy.
12.2 ASSIGNMENT. Either party may assign this Agreement to an entity
acquiring substantially all of its assets or merging with it, provided
that such assignee agree in writing to assume all obligations under
this Agreement. Except as set forth above, neither party may assign any
of its rights or delegate any of its obligations under this Agreement
to any third party without the express written consent of the other.
Any attempted assignment in violation of the foregoing shall be void
and of no effect. Subject to the above, this Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the
parties hereto.
12.3 GOVERNING LAW. The rights of the parties hereunder shall be governed by
the laws of the State of New York without giving effect to principles
of conflicts of laws. The parties expressly exclude the application of
the United Nations Convention on Contracts for the International Sale
of Goods, if applicable. The parties hereby submit to the exclusive
jurisdiction of the courts of New York in any action or proceeding that
may be brought in connection with this Agreement.
12.4 EQUITABLE RELIEF. The parties acknowledge that Confidential Information
contains trade secrets, the disclosure of which would cause substantial
harm to Disclosing Party (as defined in Section 9 hereof) that could
not be remedied by the payment of damages alone. Accordingly, said
Disclosing Party will be entitled to preliminary and permanent
injunctive relief and other equitable relief for any breach
confidentiality.
12.5 SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
12.6 EXPORT. ADSX acknowledges that the laws and regulations of the United
States may restrict the export of the Software. ADSX agrees that it
will not export or re-export any of the Licensed Materials in any form
without first obtaining the appropriate United States and foreign
government approvals.
12.7 NOTICE. Any notice, consent, or other communication hereunder shall be
in writing, and shall be given personally, by confirmed fax or express
delivery to either party at their respective addresses:
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(i) to MCY at:
MCY Music World, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
with a copy to:
▇▇▇▇▇ Raysman ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(i) to ADSX at:
Applied Digital Solutions, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or such other address as may be designated by written notice of either
party. Notices shall be deemed given when delivered or transmitted, or
seven days after deposit in the mail.
12.8 INDEPENDENT CONTRACTORS. The parties' relationship shall be solely that
of independent contractor and nothing contained in this Agreement shall
be construed to make either party an agent, partner, joint venturer, or
representative of the other for any purpose.
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12.9 FORCE MAJEURE. If the performance of this Agreement, or any obligation
hereunder, except the making of payments, is prevented, restricted, or
interfered with by reason of any act or condition beyond the reasonable
control of the affected party, the party so affected will be excused
from performance to the extent of such prevention, restriction, or
interference.
12.10 DUPLICATE ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute but one document.
12.11 ENTIRE AGREEMENT. This Agreement, together with Schedules A and B
attached hereto. the MCY Agreement referred to in Section 2.1 above and
the exhibits and attachments to the MCY Agreement and the other
documents referred to therein, constitute the complete and exclusive
agreement between the parties with respect to the subject matter hereof
and supersedes all proposals, oral, or written, all previous
negotiations, and all other communications between the parties with
respect to the subject matter hereof. The terms of this Agreement shall
prevail notwithstanding any different, conflicting, or additional terms
that may appear in any purchase order or other unsigned license
agreement included in any equipment or software package. All products
and services delivered by MCY to ADSX are subject to the terms of this
Agreement, unless specifically addressed in a separate agreement. No
modification of this Agreement will be effective unless contained in a
writing executed by an authorized representative of each party.
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IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES.
MCY MUSIC WORLD, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------
Signature
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Printed Name
President
-----------------------------------------------------
Title
APPLIED DIGITAL SOLUTIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
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SCHEDULE "A"
1. Medical.
2. Financial, excluding entertainment or sports activity. (In support of
our financial vertical we intend to deliver e-business strategies that
include transmission of e-banking data via streaming video and audio in
a secure environment allowing for tracking of where the data is going
and where the request is coming from for authentication.)
3. Agribusiness.
4. Retail, excluding entertainment or sports activity. (In support of our
point of sale software we intend to deliver streaming video and audio
for purposes of, sales training, inventory look up, help desk and
enhanced announcement broadcasting and advertisements.)
5. Education, excluding entertainment or sports activity. (In support of
our education vertical we intend to enhance our existing environment
with video and audio classroom instruction along with a explanatory
media for class enrollment and other educational administrative
applications.)
6. Healthcare, excluding entertainment or sports activity
7. Utilities, excluding entertainment or sports activity. (In support of
our ERP and CRM solutions geared toward this vertical we intend to
provide enhanced collaboration.)
8. Call centers. (In support of our call center vertical we intend to
deliver streaming audio and video so that the outbound call center
sales are enhanced by more visual and audio assistance. The sales agent
will have media aids to deliver their sales message.)
9. Hospitality, excluding entertainment or sports activity. (In support of
our hospitality vertical we intend to enhance our network monitoring
capabilities with mixed media training and conference meeting
capabilities.)
10. Insurance
11. Chemical
12. US Defense - Government/Military
13. US Government, but excluding entertainment or sports activity
14. Bio-Technology
15. Transportation, excluding entertainment or sports activity. (In support
of our transportation vertical we intend to enhance our traffic
broadcasting and agribusiness market demonstrating video broadcasting
of livestock in route to destinations for tracking purposes.)
16. Drugs/Pharmaceuticals
For purposes of this Schedule "A", the term "entertainment or sports activity"
shall mean any activity, business or enterprise related to music, theatre, film,
dance or other performing arts; any type of gaming; interactive or video games
or other form of entertainment; books and magazines (including in either printed
or electronic form); any type of sporting event, (whether as a spectator or
participant); and any other leisure activity regardless of the medium or mode of
communication or distribution, whether now in existence or hereafter created or
conceived, including but not limited to, live performances, print media,
television, cable television, audio, radio, satellite, compact disks, video
disks, the Internet, wireless or other electronic or digital platform or means
of distribution.
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SCHEDULE "B"
INFORMIX:
Database server software
NES:
Web server software. Serves up HTML and images. Industry standard web server for
high performing sites.
SSL SOFTWARE:
Secure web server software. This software encrypts data sent to and from web
browsers. The whole purchasing process, in which users transmit credit card
information, uses this software.
BROADVISION:
Application server software. Provides base level e-commerce and content
management functionality on top of which ▇▇▇.▇▇▇ web site is built.
TRACEWARE SERVER SOFTWARE:
Software that when given an IP address can determine what geography the IP
address is in. Enables ▇▇▇.▇▇▇ to territory block products because the site
determines what country a user is from based on the user's IP address.
AKAMAI:
GENERATOR FLASH:
Generates flash
SUN COMPILER:
Compiles the C++ objects that are used in Broadvision
ROGUEWAVE:
Software library used to access the database from the Broadvision application
servers
PURIFY:
Software debugging tool that detects memory leaks in C++ code
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WEBLOAD:
Used for performance load testing
PC ANYWHERE:
Allows remote access into NT machines. ▇▇▇.▇▇▇ uses the NT machines primarily
for load testing
DIGITIZATION:
Thomson Consumer Electronic Sales GmbH - MP3 technology employed to digitize
music files in MP3 format
ENCRYPTION:
Fraunhofer Institut fur Integrierte Schaltungen - Multimedia Protection Protocol
or "MPP" advanced encryption and security protocol to ensure that transactions
conducted on a website are secure and music selection cannot be pirated or
unlawfully distributed over the Internet. Version 1 of the proprietary MMP
software permits the downloading of encrypted versions of songs recorded in the
MP3 format. Version 2 of the MMP software permits more advanced encryption
capabilities, such as downloADSX that can only be played a limited number of
times.
SAPIENT:
Certain conventions, design patterns, and other design and development tools and
materials, together with elements of code and techniques for importing,
exporting, displaying and manipulating programs, data and artistic elements.