EXHIBIT 10.13
VIDEO ON DEMAND
CONTENT SUPPLY AGREEMENT
[GRAPHIC OMITTED]
Between
NS8 Corporation
and
Advanced Datanetwork
Communications Co., Ltd.
VIDEO ON DEMAND
CONTENT SUPPLY AGREEMENT
TABLE OF CONTENTS
1. GRANT OF RIGHTS.......................................................1
2. AVAILABILITY OF NS8 CONTENT...........................................1
3. FINANCIAL ARRANGEMENTS................................................1
4. TECHNICAL AND OTHER SERVICES..........................................1
5. PHYSICAL MATERIALS....................................................1
6. MARKETING, PROMOTION AND ADVERTISING..................................1
7. STATEMENTS AND REPORTS................................................1
8. AUDIT.................................................................1
9. NS8'S REPRESENTATIONS AND WARRANTIES..................................1
10. LICENSEE'S REPRESENTATIONS AND WARRANTIES.............................1
11. INDEMNIFICATION.......................................................1
12. MISCELLANEOUS.........................................................1
13. NOTICES...............................................................1
14. GOVERNING LAW.........................................................1
15. FORCE MAJEURE.........................................................1
16. CONFIDENTIALITY.......................................................1
17. LIMITATION OF LIABILITY...............................................1
18. PRESUMPTIONS..........................................................1
19. HEADINGS..............................................................1
20. ENTIRE UNDERSTANDING..................................................1
SCHEDULE A..................................................................1
STANDARD TERMS..........................................................15
SCHEDULE B.................................................................16
LAUNCH TITLES - CURRENT FILMS...........................................16
VOD CONTENT SUPPLY AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of [ ], 2006, is entered into by and
between NS8 Corporation, a Delaware corporation with its offices at One Union
Square, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or its
assignee ("NS8" or "Licensor"), and Advanced Datanetwork Communications Co.,
Ltd. ("ADC"), a Thailand corporation, through Buddy Broadband, its IPTV service
brand (collectively, the "Licensee"), with an office at 19th Floor, Amarin Tower
500 Ploenchit Rd., Lumpini, Pathumwan, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇. Each party
hereto is also individually referred to as "Party" and together referred to as
the "Parties".
RECITALS
A. NS8 is the Licensor of certain VOD rights in relation to NS8 Content (as
defined below) as a result of various license agreements entered or to be
entered into between NS8 and Content Owners.
B. Licensee is in the business of digital content services to end-consumers by
means of the Service(s) (as defined below). Licensee has the option to
license NS8 Content from NS8 for its IPTV and internet PC VOD services
according to the distribution rights of each individual program.
C. The Parties wish to enter into an agreement whereby NS8 will make the NS8
Content available to Licensee for distribution within the Territory on the
Service(s).
D. This Agreement sets out the terms under which such NS8 Content will be made
available to Licensee on the Service(s).
In consideration of the premises and the respective covenants contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Parties hereby agree as follows:
1. GRANT OF RIGHTS
1.1 RIGHTS GRANTED. Non-exclusive right to exhibit original language
versions of Licensed Films or programs on a VOD basis during their License
Periods to users for home viewing in Thailand delivered via (a) to an
addressable set top box or (b) the internet solely to a user's single personal
computer or a similar IP-enabled viewing device including portable/mobile
devices that are approved by Licensor in its sole discretion (a "Device"), on
the VOD service known as "Buddy Broadband" branded by Licensee and co-branded by
licensor "iWave".
"VOD" means the exhibition of a single film or program originated by a request
from the user and for which a separate fee is charged for the privilege of
viewing one or more exhibitions during the Viewing Period at a time selected by
the user.
1.2 RESTRICTION OF RIGHTS. Unless approved in advance by Licensor
giving its express consent in writing to Licensee, the VOD service of Licensee
shall be in commercial operation at all times during the Term. No fee shall be
charged for general access to the VOD service. The fee charged for the VOD
exhibition of a Licensed Film shall be unaffected by the purchase of other
programs, products or services. The VOD service shall be non-advertiser
supported (without limiting the generality of the foregoing, the exhibition of
programs shall not be preceded by, followed by or interrupted with advertising
of any kind). There shall be no packaging or bundling of programs on the VOD
service (e.g., a program cannot be offered with other programs for a combined
charge, and a fee cannot be conditioned or varied on whether the user purchases
other programs, products or services). Licensee shall not sublicense to any
other Party the right to exhibit Licensed Films (including carriage of the VOD
service by a delivery platform owned, operated or controlled by another party);
provided, however, that with Licensor's prior written approval Licensee may
enter into co-marketing arrangements with third party internet portals and
delivery platforms to promote and market to consumers the VOD service as long as
Licensed Films or programs on the VOD service remain accessible to users solely
through Licensee's wholly-owned and operated website.
1.3 NOTIFICATION OF UNAUTHORIZED TRANSMISSIONS. Licensee shall
immediately notify NS8 of any unauthorized transmissions or exhibitions of any
Available Film or program of which it becomes aware.
2. AVAILABILITY OF NS8 CONTENT
Subject to availability, Licensor shall license to Licensee all content
contained within the iWave Programming Catalog including:
All available programming within the iWave international VOD content catalog.
Such TV Movies, Made-for-Video films, Concerts, Documentaries, High Definition
TV and TV Series as they become available and as the Parties mutually agree.
For the purpose of clarification, this agreement does not include Hollywood
Studio product and supply of such programming would require a separate business
and license arrangement.
2.1 AVAILABILITY DATE. Availability dates and License Period duration
shall be specified by Licensor. For clarity, a Licensed Film's License Period
may extend beyond the expiration of the Term of this Agreement and the
provisions of this Agreement shall continue to apply in full force and effect
through the last day of the last expiring License Period.
2.2 NUMBER OF EXHIBITIONS. Each Available Film or program is available
for an unlimited number of exhibitions during its License Period. Licensee shall
make each Available Content or Film or program accessible on the Service to all
Subscribers at all times throughout the duration of its License Period.
NOTIFICATION OF GENRES. Licensee shall notify NS8 of the various
genres/categories in which programs will generally be classified on the Service.
Where advised by NS8 that an Available Content or Film or program should be
classified in a particular manner, Licensee shall ensure that the Available
Content or Film or program is classified in the genres/categories so specified
by NS8.
Shelf Space. Each Licensed Film shall be stored and available on a continuous
basis on the VOD service file server for exhibition for the duration of its
License Period.
VIEWING PERIODS. Users may view exhibitions of Licensed Films or programs during
a consecutive 24-hour period only (unless NS8 agrees to provide its consent to a
longer viewing period for the exhibition of a particular program by means of a
prior express written approval to any such longer viewing period), after which
the film or program shall no longer be viewable in the absence of a subsequent
rental by the User. For clarity, the Viewing Period starts upon the user's first
viewing of the Licensed Film (i.e., a separate 24-hour period does not apply for
each Device onto which the Licensed Film is downloaded). Non-viewable content
files must be purged from the Device no later than 30 days after download or
expiration of the License Period (if earlier).
TECHNOLOGY. Transmissions of Licensed Films or programs over the internet shall
be delivered from Licensee's secure servers directly to the Device of the User
via an encrypted content file protected at all times using digital rights
management software approved by Licensor (the "DRM"). Delivery to PC's and other
approved portable/mobile devices shall be distributed exclusively by means of
the iWave Interactive Distribution Platform.
Licensee shall also employ a geofiltering service and payment billing address
verification system approved by Licensor to ensure that Users are located solely
within Thailand. All transmission technology is subject to full review and
approval by Licensor prior to the start of and during the Term of this
Agreement.
Licensor may immediately suspend the Rights Granted as to some or all Licensed
Films, or immediately terminate this Agreement, in the event of an actual
security or territorial breach as determined in Licensor's good faith judgment.
Upon its receipt of a suspension or termination notice, Licensee shall take
immediate steps to remove some or all of the content files and/or license key
(as applicable) or make such content files and/or license keys inaccessible from
the VOD service as soon as commercially feasible (but in no event later than 24
hours after receipt of such notice from Licensor).
COPY PROTECTION. Licensee shall put in place fully secure and effective,
stringent and robust security systems and technologies to prevent theft,
pirating and unauthorized exhibition (including, without limitation, exhibition
to non-Subscribers and exhibition outside the Territory), unauthorized copying
or duplication of any video reproduction or compressed digitized copy of any
Available Film or program and such security systems, procedures and technologies
shall be no less stringent or robust than those which Licensee employs with
respect to available films or programs from other content providers.
Licensee shall request internet service providers that are affiliated with or
used by the VOD service to (a) notify users of the ISP's anti-piracy policy
regarding the transmission of copyrighted materials, and (b) to the extent
permitted by applicable law, forward all copyright infringement notices to such
ISP's users upon request by Licensor. In addition, Licensee shall investigate
using "traffic shapers" for purposes of suspending an infringing User's access
to the Internet protocol specified in the copyright infringement notice until
the infringement issue has been resolved.
APPROVAL OF SERVICE. Licensee shall, as it deems appropriate, provide to NS8
within thirty (30) days of the date of this Agreement a full description of the
Licensee's Service including network architecture, encoding and encryption
methodologies, Subscriber verification and authentication procedures, billing
and reporting procedures and content protection and security measures. No NS8
Content shall be made available on the Service until such time as NS8 has
confirmed to Licensee in writing that the Service has been approved by NS8 and,
where applicable, the relevant Content Owners. Licensee will find and employ the
best way to provide NS8 with accurate reporting regarding the foregoing matters
in a timely manner.
IMAGE QUALITY. If Licensee employs a compression technology using (a) less than
3.0 Mbps or more than 10.0 Mbps MPEG2, (b) less than 700Kbps or more than 5.0
Mbps Windows Media 9+, Real Video 9+ or H.264, or (c) makes any other revision
that results in a degradation (resulting in a resolution of less than 320x480)
or an improvement (resulting in a resolution of more than 720x480) of the
quality of the image, Licensor shall have right to approve such compression
technology and resulting resolution. The foregoing resolution and bitrate
restrictions do not apply to Devices with built-in displays less than 4 inches
wide.
REVENUE SHARING & MINIMUM GUARANTEES. Net Revenue will be split 60% (NS8): 40%
(ADC) for all content provided, distributed and purchased on the ADC "Buddy
Broadband" IPTV services. In the event minimum guarantees for certain Content
Properties are required to be paid to the Content Owner prior to distribution,
revenue splits and minimum guarantees will be mutually agreed by the Parties on
a case by case basis. Net Revenue is defined as the net amount of the Retail
Price (as defined below) of the Content Property after allocations of revenue
share to its appropriate Content Owner has been deducted.
3. FINANCIAL ARRANGEMENTS
3.1 CHARGE TO SUBSCRIBERS. Unless otherwise agreed in writing by NS8,
each Subscriber shall be charged the Retail Price for each Subscriber
Transaction.
3.2 BILLING. The Licensee shall be responsible for billing Subscribers
for each Subscriber Transaction and for the collection of all monies due from
Subscribers in relation to NS8 Content.
3.3 PAYMENT OF REVENUE SHARE. Licensee shall pay NS8's revenue share
(exclusive of value added tax) to NS8 on a monthly basis at the rate specified
in Schedule A hereto. The revenue share may be amended or modified from time to
time by mutual agreement of the Parties.
3.4 NS8 BANK DETAILS. Unless and until Licensee is otherwise notified
by NS8, all payments hereunder shall be paid by wire transfer in United States
Dollars (converted at the Exchange Rate in effect on the payment due date
according to the rate announced by the Bank of Thailand) to NS8 at the bank
account specified in Schedule A hereto.
3.5 LATE PAYMENTS. Any payment not made within fifteen (15) business
days from the date that it is due under this Agreement shall accrue interest
from the date such amount is due until payment is received in full at the rate
of 7.5 % per annum of the defaulting amount.
3.6 TAXES. Licensee shall pay the revenue share under Section 3.3 to
NS8 after deducting applicable withholding tax that is properly chargeable to
NS8 under applicable governing law. NS8 shall pay its share of corporate income
tax arising out of the transactions contemplated by this Agreement that NS8 is
legally responsible to pay under the applicable law governing corporate income
tax. Licensee shall be responsible to pay for the stamp duty and its own
corporate income tax arising out of this Agreement.
3.7 CURRENCY REGULATION. To the extent any sums due to NS8 hereunder
cannot be sent to NS8 because of currency restrictions or any other governmental
regulation or restriction, NS8 may elect, in its sole and absolute discretion,
to have all such sums due to NS8 hereunder deposited by Licensee in an interest
bearing account in the name of NS8 or its designee at a bank designated by NS8
where payment is permitted, which deposit shall be in satisfaction of Licensee's
payment obligations hereunder. Licensee shall document all deposits made to such
account and the dates thereof and provide that information to Licensor in a
timely manner.
4. TECHNICAL AND OTHER SERVICES
4.1 SEPARATE AGREEMENT REQUIRED. This Agreement does not cover any
technical or other services that may be provided by NS8 to Licensee other than
those specifically contemplated in this Agreement. In the event that Licensee
desires NS8 to provide any such additional services, then any provision of such
additional services would be subject to a separate agreement to be negotiated
between the Parties.
5. PHYSICAL MATERIALS
5.1 DELIVERY OF COPIES. NS8 shall deliver to Licensee at least 10 days
prior to the Availability Date for each Available Content or Film or program an
encoded digital file or master tape for the Territory together with trailer and
metadata (each, together with such further duplicates or compressed or digitized
versions as Licensee shall be permitted to create solely to perform its
obligations hereunder, a "Copy").
5.2 TITLE OVER COPIES. Each Copy of any Available Content or Film or
program is the property of NS8 and/or the relevant Content Owner as the case may
be, subject only to the limited right of use expressly permitted herein, and
Licensee shall not permit any lien, charge, pledge, mortgage or encumbrance to
attach thereto. At all times during an Available program's License Period, NS8
and/or the relevant Content Owner shall have access without cost to any Licensed
Language versions, tracks, dubs and digitized compressed Copies of such
Available program; provided that any copies shall be at Content Owner's or NS8's
cost as the case may be and provided further that in respect of NS8 only, no
such versions or materials created by Licensee may be provided to or used by any
service or company that competes with the Service during the term hereof.
5.3 MATERIALS DELIVERY CHARGE.
Standard Definition (NTSC or PAL). A delivery fee of USD$25.00 per title shall
be charged for each program delivered to ADC. Licensee bears all costs,
including those related to materials, encoding, delivery, insurance, marketing
and performing rights fees.
High Definition. A delivery fee shall be charged back at the same cost to
Licensor for duplication and /or encoding of any HD programming.
5.4 CUTTING, EDITING AND INTERRUPTION. Licensee shall not make, or
authorize any others to make, any modifications, deletions, cuts, alterations or
additions in or to any Available Film or program without the prior written
consent of NS8. For the avoidance of doubt, no panning and scanning, compression
or so-called "upconversion" and similar modifications shall be permitted.
Without limiting the foregoing, Licensee shall not delete the copyright notice
or credits from the main or end title of any Available Film or program or from
any other materials supplied by NS8 hereunder. No exhibitions of any Available
Film or program hereunder shall be interrupted for intermission, commercials or
any other similar commercial announcements of any kind.
6. MARKETING, PROMOTION AND ADVERTISING
Licensee shall prominently market each Licensed Film or program on the VOD
service at least as favorably as Licensee markets comparable programs supplied
by other comparable content providers by available means, such as print, program
guides, on menu pages and other means including but not limited to Licensee's
website promotions and e-mails to Licensee's customer base.
Licensee shall provide an amount of promotional time and space for Licensed
Films at least equal to the proportion that License Films make up all licensed
product on NS8's "iWave" service. Further, the promotion of Licensed Films shall
occur at least as frequently and prominently as promotion of motion pictures of
other licensors in the same pricing categories. Without limiting the generality
of the foregoing, Licensee shall highlight Licensor's brand(s) and titles on the
"iWave" website (or any successor website) and consumer/retail promotion in
addition to the channel listing. Furthermore, Licensee will be permitted to
categorize and/or allow for searches for Licensed Films using Licensor's
brand(s).
Licensor may place its logo/watermark in the Licensed Films and in on-air
promotional materials, and may promote at the end of the Licensed Films other
upcoming Licensor films and programs.
Licensee shall cooperate in all market tests and research requested by Licensor.
Licensee shall also deliver monthly written reports regarding VOD buying habits
of Users, including buy rates, genre trends, and User demographics and buying
trends.
Licensee (a) shall only use advertising materials provided or approved by
Licensor without alteration, (b) shall not use the images, names,
likenesses or marks of the characters or persons in a Licensed Film apart
from the advertisement of its exhibition or to constitute a commercial
tie-in, endorsement or testimonial, (c) shall not exhibit any excerpt of
a Licensed Film other than "trailers" supplied by Licensor without
alteration, and (d) shall comply with any instructions and restrictions
furnished by Licensor in connection with promotion of the Licensed Films.
7. STATEMENTS AND REPORTS
7.1 REPORTS TO ACCOMPANY PAYMENTS. At the time that any payment is made
to NS8 hereunder, such payment shall be accompanied or preceded by an accounting
statement setting forth the following calculations and information in respect of
such payment: (a) the actual number of Subscribers for each relevant period, (b)
the actual number of Subscriber Transactions per Available Content or Film and
program for the relevant period, (c) the actual Retail Price charged per
Available Content or Film and program, and (d) the amount of the NS8 License Fee
for each Available Content or Film and program.
7.2 USE OF MARKET SURVEYS. Licensee shall provide to NS8 all relevant
non-confidential results of any studies conducted by Licensee that pertain to
the exhibition of films on a Video-On-Demand basis, including, without
limitation, focus group surveys and demographic studies. NS8 may make
suggestions to Licensee regarding the direction of ongoing research regarding
Real Time Reporting Requirements. In addition to Section 7.1 above and this
Section 7.2, Licensee shall provide NS8 with access to real-time usage data in
respect of NS8 Content available on the Service, in a format mutually agreed
between the Parties.
8. AUDIT
8.1 NS8'S AUDIT RIGHTS. Licensee shall keep and maintain complete and
accurate books of account and records at its principal place of business in
connection with each of the Available Content or Films and programs and
pertaining to Licensee's compliance with the terms hereof, including, without
limitation, copies of the statements and other information referred to in
Article 8 hereof. NS8 shall have the right, no more than once in any Term Year,
at NS8's cost (subject to the penultimate sentence of this Section 8.1), during
business hours to audit and check (either itself or by an independent third
party) at Licensee's principal place of business, Licensee's books and records
pertaining to the accuracy of the statements and other financial information
delivered to NS8 by Licensee and the amount of the NS8 License Fees paid or
payable hereunder and to ensure compliance with Article 8 hereof. Any statement
or payment provided to NS8 which is not challenged by written notice to Licensee
setting forth the specific grounds on which NS8 reasonably believes such
statement or payment to be incorrect, shall be deemed to have been accepted by
NS8 after eighteen (18) months after the date of such statement or payment, and
NS8 shall thereafter be barred from and hereby waives its right to pursue an
audit or any claims with respect to such statements or payments. If an
examination establishes an error in Licensee's computation of NS8 License Fees
due with respect to the Available Films or programs, Licensee shall immediately
pay the amount of underpayment, plus interest thereon from the date such payment
was originally due at a rate equal to the lesser of 1.0% per month compounded
monthly and the maximum rate permitted by applicable law. If such error is in
excess of 10% of such NS8 License Fees due for the period covered by such audit,
Licensee shall, in addition to making immediate payment of the additional NS8
License Fees due pay for cost of audit for NS8 plus interest in accordance with
the previous sentence, pay to NS8 the reasonable costs and expenses incurred by
NS8 for any audit. In the event that the rate of interest set forth in this
Section exceeds the maximum permitted legal interest rate, such rate shall be
automatically reduced to the maximum permitted legal interest rate, and all
other terms and conditions of this Agreement shall remain in full force and
effect.
9. NS8'S REPRESENTATIONS AND WARRANTIES
In reliance upon the representations made to NS8 by the Studio Licensors and
other Content Owners, and without limiting any other representation or warranty
made by Licensee herein, NS8 hereby represents and warrants to Licensee that:
9.1 It has the full right, power and authority to enter into this
Agreement; and
The performing rights to any musical compositions contained in each of the
Available Content or Films and programs, are either (a) controlled by ASCAP, BMI
or SESAC or similar organizations having jurisdiction in the Territory, (b)
controlled by NS8 to the extent required for the licensing of the exhibition in
accordance herewith, or (c) in the public domain. NS8 does not represent or
warrant that Licensee may exercise the performing rights in the music without
obtaining a valid performance license and without payment of a performing rights
royalty or license fee, for those rights falling within category.
10. LICENSEE'S REPRESENTATIONS AND WARRANTIES
Without limiting any other representation or warranty made by Licensee herein,
Licensee hereby represents, warrants and covenants to NS8 that:
10.1 It has the full right, power and authority to enter into this
Agreement;
10.2 The Available Content or Films or programs shall be delivered only
on the Service and to Licensee's Subscribers;
10.3 No Available Content or Film or program shall be exhibited except
by the means provided in this Agreement;
10.4 All Services shall comply with the restrictions and specifications
set forth herein;
10.5 Licensee shall not permit, and shall use commercially reasonable
efforts to prevent, the reception of the Available Content or Films or programs
in any facility which is not a Private Residence;
10.6 Except for the promotion of the Available Content or Films and
other entertainment programs and sporting events available on the Service or as
otherwise provided herein, unless approved in writing in advance by NS8, no
advertising will be exhibited on the Service;
10.7 Licensee will make available to NS8 sufficient media server
storage capacity to meet the Minimum Storage Capacity specified in Schedule A
hereto;
10.8 Licensee will use reasonable commercial efforts to ensure that the
available bandwidth to all Subscribers is at all times not less than the Minimum
Bandwidth Requirement specified in Schedule A hereto.
11. INDEMNIFICATION
11.1 NS8 shall indemnify, defend and hold harmless Licensee and its
representatives (with respect to a Party, its officers, directors, equity
owners, employees and other representatives and its parents, subsidiaries and
Affiliates (and their officers, directors, equity owners, employees and other
representatives (collectively, the "Representatives")) from and against any and
all claims, damages, liabilities, costs and expenses, including reasonable
outside counsel fees, arising from or in connection with the breach by NS8 of
any of its representations, warranties, covenants or any material provisions of
this Agreement. Licensee shall promptly notify NS8 of any such claim or
litigation. The failure to provide such prompt notice shall not diminish NS8's
indemnification obligations except to the extent NS8 is actually prejudiced by
such failure. In addition, NS8 shall not be required to indemnify Licensee or
its Representatives for any claims resulting from Licensee exhibiting an
Available Film or program or using Advertising Materials in a form other than as
delivered or authorized by NS8, or otherwise permitted under this Agreement, or
due to Licensee's unauthorized editing or modification of any Available Film or
program or Advertising Materials or Licensee's authorization of a third party to
do any of the foregoing if in violation of the express terms of this Agreement.
11.2 Licensee shall indemnify, defend and hold harmless NS8 and its
Representatives from and against any and all claims, damages, liabilities, costs
and expenses, including reasonable outside counsel fees, arising from or in
connection with the breach of any representation, warranty or provision of this
Agreement by Licensee. NS8 shall promptly notify Licensee of any such claim or
litigation. The failure to provide such prompt notice shall not diminish
Licensee's indemnification obligations except only to the extent Licensee is
actually prejudiced by such failure.
11.3 In any case in which indemnification is sought hereunder:
11.3.1. At the indemnifying party's option, the
indemnifying party may assume the handling,
settlement or defense of any such claim or
litigation. If the indemnifying party assumes the
handling, settlement or defense of any such claim or
litigation, the party to be indemnified shall
cooperate in the defense of such claim or litigation,
and the indemnifying party's obligation with respect
to such claim or litigation shall be limited to
holding the indemnified party harmless from any final
judgment rendered on account of such claim or
settlement made or approved by the indemnifying party
in connection therewith, and expenses and reasonable
attorneys fees of the indemnified party incurred in
connection with the defense of such claim or
litigation prior to the assumption thereof by the
indemnifying party and any reasonable out-of-pocket
expenses for performing such acts as the indemnifying
party shall request. If the indemnifying party does
not assume the handling, settlement or defense of any
such claim or litigation, the indemnifying party
shall, in addition to holding the indemnified party
harmless from the amount of any damages awarded in
any final judgment entered on account of such claim,
reimburse the indemnified party for reasonable costs
and expenses and reasonable attorneys fees of the
indemnified party incurred in connection with the
defense of any such claim or litigation; and
11.3.2 The party seeking indemnification shall fully
cooperate with the reasonable requests of the other
party in its participation in, and control of, any
compromise, settlement, litigation or other
resolution or disposition of any such claim. The
indemnifying party shall not consent to the entry of
any final judgment in any action without the
indemnified party's prior written approval.
12. MISCELLANEOUS
Licensor may withdraw a Licensed Film due to legal rights issues, legal or music
clearance issues and/or due to re-release, remake and sequel moratoria.
Licensee shall be responsible for any breach of this Agreement by any party
involved in delivering the VOD service to Users, including internet service
providers.
Licensor may terminate this Agreement if (a) Licensee breaches any of its
payment or security obligations and fails to cure same within five (5) days
after receiving notice of any such breach from Licensor, (b) Licensee breaches
any representation, warranty or covenant (other than payment or security
obligations) and fails to cure same within 15 days after receiving notice of any
such breach from Licensor, (c) Licensee files a petition in bankruptcy or
becomes insolvent, or (d) any business combination between Licensee and another
VOD and/or PPV service in the Territory occurs or if any change in control of
Licensee occurs. Upon termination, Licensor shall be relieved of its future
obligations and Licensee shall remain obligated to fulfill all accrued
obligations, including the payment of License Fees. In addition, Licensor may
declare all License Fees due (or to become due but for such termination)
immediately due and payable.
Each Party agrees to maintain in confidence the terms of this Agreement and all
information derived from the other Party, except (a) as necessary to comply with
applicable law or court order and, without limiting the generality of the
foregoing, as necessary to comply with the rules or regulations of an relevant
stock exchange or the Securities and Exchange Commission of the United States of
America, (b) as part of its normal reporting procedures to its parent company,
auditors and attorneys, and (c) in order to enforce any of its rights.
Licensee may not assign this Agreement without the prior written consent of
Licensor. Licensor may freely assign this Agreement to an affiliate capable of
performing Licensor's obligations.
This Agreement is a short form agreement, and the Parties may, by mutual
agreement, supersede this Agreement with a more comprehensive long form
agreement. Until the execution and delivery of such long form agreement, this
Agreement shall be the binding agreement between the Parties relating to the
subject matter hereof.
13. NOTICES
13.1 Except as otherwise expressly provided herein, all notices,
statements and other documents desired or required to be given hereunder shall
be in writing and shall be given by personal delivery, reputable overnight or
courier delivery service or facsimile. All notices, statements and other
documents shall be sent to:
If to NS8: NS8 Corporation
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Attention: Chief Operating Officer
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With a copy to: NS8 Corporation
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Attention: Corporate-Legal Department
Fax No.: ▇▇▇▇-▇▇▇-▇▇▇▇
If to Licensee: Trairat Kaewkerd
Managing Director
Advanced Datanetwork Communications Co., Ltd.
19th Floor, Amarin Tower
500 Ploenchit Rd., Lumpini, Pathumwan
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with a copy to: Fuangfa Amponstira
Attention: Senior Director, Broadband Marketing
(or at such other address as may be designated in writing by either Party).
Notice given by facsimile shall be deemed given on the Business Day of receipt,
as evidenced by the confirmation sheet thereof; notice given by personal
delivery shall be deemed given upon delivery and notice given by overnight
delivery or courier service shall be deemed given the third Business Day
following the Business Day of delivery to the overnight delivery service.
14. GOVERNING LAW
14.1 This Agreement shall be interpreted and construed in accordance
with the laws of Washington State with the same force and effect as if fully
executed and to be fully performed therein without giving effect to its
conflicts of laws, principles or rules and shall be exclusively submitted to the
Federal and State courts of Washington State, USA. The Parties waive their right
to trial by jury.
15. FORCE MAJEURE
15.1 Neither Party shall in any manner whatsoever be liable or
otherwise responsible for any delay or default in, or failure of performance
resulting from or arising out of or in connection with any "Event of Force
Majeure", and no such delay, default in, or failure of performance shall
constitute a breach by either Party hereunder. For purposes of this Agreement,
an "Event of Force Majeure" in respect of a Party shall mean any reasonably
unforeseeable act, cause, contingency or circumstance beyond the reasonable
control of such Party, including, without limitation, any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, fire, flood, drought, other natural calamity, damage or destruction
to plant and/or equipment, or any other accident, condition, cause, contingency
or circumstance (including without limitation, acts of God or terrorism within
or without the United States), but shall not include an inability to pay for
whatever reason.
16. CONFIDENTIALITY
16.1 COMMUNICATIONS. All communications between the Parties or their
affiliates or any of them in respect of this Agreement or the transactions
contemplated by this Agreement and all proprietary information and other
proprietary material (whether such party's or another party's proprietary or
confidential information or material) supplied to or received by any of them
from the others which is either marked "confidential" or is by its nature
intended to be exclusively for the knowledge of the recipient alone shall be
kept confidential by the recipient unless such information (a) is available to a
member of the public through no act or omission on the part of the recipient,
(b) was available to the recipient on a non-confidential basis from a source
other than a Party hereto, provided that to the recipient's knowledge after due
inquiry, such source is not bound by any obligation of confidentiality with
respect to such information or the disclosure thereof, (c) has been
independently acquired or developed by the recipient without violating any of
its confidentiality obligations hereunder, or (d) has been specifically approved
in writing by the disclosing Party for use or dissemination by the recipient. If
a Party or its affiliate is compelled to disclose confidential information
obtained hereunder by judicial or administrative procedures or in the opinion of
its counsel, by other requirements of law, or if such confidential information
is required to be disclosed for the enforcement of the recipient's rights as a
Party under this Agreement, then in each such circumstance, this confidentiality
obligation shall cease only to the extent required under the respective
circumstances. For the purposes of clarification, each Party to this Agreement
agrees that the Agreement and all of the terms and conditions hereof may be
disclosed by a Party without the consent of the other Party as required by
applicable rules and regulations of the United States Securities and Exchange
Commission.
16.2 NOTWITHSTANDING TERMINATION. The obligations of any Party
contained in this Article 16 shall endure for the term of this Agreement and
shall continue for two (2) years thereafter. The Parties acknowledge the
competitive value and confidential nature of the confidential information to be
disclosed and that damage could result to the disclosing party if confidential
information is disclosed to any third party or used by any party other than the
disclosing party. Further, the Parties acknowledge that if the receiving party
shall violate the provisions of this Article 16, the disclosing party may suffer
immediate and irrevocable harm for which damages may be an inappropriate and/or
inadequate remedy and the Parties further agree that in the event of a breach or
a threatened breach of any provision of this Article 16, the disclosing party
shall be entitled and each of the Parties hereby consents to the issuance, in
the Federal or State courts of Washington State, USA, or at the election of the
disclosing Party elsewhere, of a temporary restraining order, preliminary and
permanent injunction, without bond, restraining and enjoining the said breach or
violation by the receiving party and any other person or entity which may be
acting in concert with the receiving party to whom the confidential information
may have been disclosed.
16.3 NO ANNOUNCEMENT. The Parties shall not make any announcements or
press releases in respect of this Agreement or the transactions contemplated
herein without the prior written consent of both Parties, save as may be
required by law or the applicable rules and regulations of any applicable stock
exchange or the Securities and Exchange Commission of the United States of
America (the "SEC"). Any disclosures regarding this Agreement as may be required
by law or the applicable rules and regulations of any applicable stock exchange
or the SEC can be made by the Party subject to any such requirement without the
consent of or any consultation with the other Party.
17. LIMITATION OF LIABILITY
17.1 Neither Party shall be liable to the other for special,
consequential or incidental loss or for loss of profits.
17.2 Except as otherwise provided for in this Agreement, in no event
will a Party have any liability to the other Party for any damages whatsoever
arising out of or in connection with this Agreement.
18. PRESUMPTIONS
18.1 In interpreting the terms and conditions of this Agreement, no
presumption shall be interpreted for or against a Party as a result of the role
of such Party or such Party's counsel in the drafting of this Agreement.
19. HEADINGS
19.1 The titles of the Articles and Sections of this Agreement are for
convenience only and shall not in any way affect the interpretation of this
Agreement.
20. ENTIRE UNDERSTANDING
20.1 This Agreement includes the entire understanding of the Parties
with respect to the subject matter hereof, and all prior agreements (written or
oral) with respect to such subject matter have been merged herein. No
representations or warranties have been made other than those expressly provided
for herein. This Agreement may not be modified, except by a written instrument
signed by the Parties, and this provision may not be waived except by written
instrument signed by the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
Signed on behalf of NS8 Corporation by:
(..................................................)
Name:
Title:
Signed on behalf of Advanced Datanetwork Communications Co., Ltd. by:
(.................................................)
Name: Somprasong Boonyachai
Title: Chairman
(.................................................)
Name: Trairat Kaewkerd
Title: Managing Director
Witness: __________________________
Name: Fuangfa Amponstira
Title: Senior Director, Broadband Marketing
SCHEDULE A - VIDEO ON DEMAND CONTENT SUPPLY AGREEMENT
STANDARD TERMS
Terms to be determined
SCHEDULE B
LAUNCH TITLES - CURRENT FILMS
[LIST TO BE INSERTED - tentative list already supplied]