EXHIBIT 10.9
Execution Copy
SOFTWARE BUNDLING MASTER LICENSE AGREEMENT
LICENSEE: Data Translation, Inc.
Organized under the laws of: Massachusetts
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Effective as of March 1, 1996
Licensee and ULEAD Systems, Inc., a California corporation with its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ("ULEAD"),
agree as follows:
1. DEFINITIONS
1.1. "Master" means a copy of the Software entrusted to Licensee from
which reproductions of the Software shall be made pursuant to this
Agreement, as more fully described in Exhibit B.
1.2. "Effective Date" shall mean March 1, 1996.
1.3. "Term" means the duration of this Agreement as stated in Exhibit A,
unless earlier terminated in accordance with this Agreement.
1.4. "Territory" means the area specified in Exhibit A.
1.5. "Bundled Product" means, collectively, Licensee's products specified
in Exhibit B and the Software.
1.6. "License Fee" means the license fee for one copy of the Software in
U.S. dollars as specified in Exhibit B.
1.7. "Quantity" means the estimated number of units of Software to be
reproduced as stated in Exhibit B, during the Term; provided that
Licensee may make additional reproductions pursuant to this
Agreement.
1.8. "Documentation" means instructional, promotional and other matter,
other than Software, customarily provided by ULEAD to its end users
with the Software.
1.9. "Software" means the English, German and French versions of the
computer programs and electronic instructions listed in Exhibit B,
including Update Release and Version Release, comprising of object
code version of computer
programs having the functional and operational specifications as set
forth in the Documentation, together with any supplementary programs,
utilities, tutorials, Documentation and other material that ULEAD
customarily provides to its end users with such computer programs and
electronic instructions.
1.10. "Update Release" means a release of Software containing primarily
corrections that ULEAD in its sole discretion designate as a change
in the digit to the right of the tenth's digit in the Software
version number.
1.11. "Version Release" means a release of Software containing changes in
the functions of the Software that ULEAD in its sole discretion
designates as a change in the tenth's digit in the Software version
number.
1.12. "Product Release" means a release of Software containing major
changes in the Software that ULEAD in its sole discretion designates
as a change in the first digit in the Software version number;
provided that any release of the Software containing digital video
editing functionality shall be deemed to be an Update Release or a
Version Release and not a Product Release.
1.13. "Support Services" means installation, maintenance and technical
support services.
1.14. "End User Agreement" means ULEAD's then current license agreement and
warranty with respect to the Software which will grant to Licensee's
end users a limited warranty and rights to use the Software.
1.15. "Writing" means any communication on a paper or via facsimile.
1.16. "Late Payment Charges" means the amount calculated by multiplying the
amount delinquent from forty-five (45) days after the due date until
the date of actual payment with an annual rate equal to the higher of
(a) twelve percent (12%) or (b) three percent (3%) above the prime
rate published by the Wall Street Journal on the date it first
becomes due.
1.17. "Report" means a report containing information related to the
inventory of, distribution of, and other information related to
Software, completed and duly signed, from time to time, by an
authorized representative of Licensee.
1.18. "Reproduction Site" means the location stated in Exhibit B.
1.19. "Reproduction Guideline" means the procedures established by ULEAD on
the reproduction and packaging of the Software, and previously
provided to Licensee, which ULEAD may amend from time to time with
prior written
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consent of Licensee, which consent shall not be unreasonably withheld
or delayed.
2. GRANT OF LICENSE
2.1. Subject to the terms and conditions of this Agreement, ULEAD grants
to Licensee a non-exclusive right and license, during the term of
this Agreement, to load, utilize, execute, reproduce, have
reproduced, market, promote and distribute, directly and indirectly,
the Software for the purpose of evaluating, testing, supporting and
including the Software as a components of the Bundled Products, and
to sublicense such Software, as a component of the Bundled Products,
to end user, distributor and Original Equipment Manufacturer ("OEM")
customers throughout the Territory.
2.2. Subject to the terms and conditions of this Agreement, ULEAD grants
to Licensee a non-exclusive right and license, during the term of
this Agreement: (i) to reproduce and have reproduced the Software's
Documentation, or portions thereof, solely for the purpose of
providing the Documentation or portions thereof throughout the
Territory to sublicensees of the Software contained in the Bundled
Products; and (ii) to create, reproduce, and have reproduced,
modified versions of the Documentation or portions thereof ("Modified
Manuals") which comply with Licensee's style and procedures
guidelines, solely for the purpose of providing the Modified Manuals
throughout the Territory to sublicensees of the Software contained in
the Bundled Products. Any such modifications to the Documentation or
portions thereof will be subject to the prior approval of ULEAD,
provided such approval is not unreasonably withheld, delayed or
conditioned. If ULEAD has not objected to a Modified Manual created
from the Documentation or portions thereof within thirty (30) days of
receiving notice of the production of such Modified Manual, the
approval right shall be deemed waived as to that Modify Manual, and
that Modified Manual may be supplied with the related Software for
the term of the Agreement without further approval required from
ULEAD. Licensee may add its own copyright notice to those of ULEAD,
if any, for the Modified Manuals.
2.3. Subject to the terms and conditions of this Agreement, ULEAD grants
to Licensee a non-exclusive right and license, during the term of
this Agreement, to use ULEAD's trade names, trademarks and service
marks listed in Appendix A hereto (hereinafter collectively referred
to as the "Trademarks") throughout the Territory solely for labeling
reproductions of the Software and Documentation or portions thereof
that are permitted under this Agreement and for advertising the
Bundled Products. Licensee shall not at any time do or permit any act
to be done which may in any way impair the rights of ULEAD in the
Trademarks. In order to comply with ULEAD's quality control
standards,
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Licensee shall (a) use the Trademarks in compliance with all relevant
material laws and regulations; (b) accord ULEAD the right to inspect
during normal business hours, upon reasonable advance notice,
Licensee's facilities in order to confirm that Licensee's use of the
Trademarks is in compliance with this provision, provided that no
more than two inspections be made in any 12-month period (unless
Licensee has breached its obligations under this Section 2.3 in a
material manner and ULEAD has notified Licensee to that effect in
writing); (c) not modify any of the Trademarks in any way and not use
any of the Trademarks on any goods or services other than the
Software, the Documentation, or portions thereof, and the Modified
Manuals, and the advertising therefor and for the Bundled Products.
If Licensee fails to use the Trademarks in material compliance with
this provision, ULEAD may instruct Licensee to immediately cease use
of the Trademarks, and Licensee shall immediately cease such use.
2.4. In exchange for the grant of the licenses set forth in this Section
2, Licensee shall pay to ULEAD, in accordance with the provisions of
Section 4, a License Fee as set forth in Appendix B of this Agreement
and shall perform its other obligations under this Agreement.
2.5. All rights not expressly granted to licensee with respect to the
Software, the Documentation and the Trademarks under this Agreement
are reserved by ULEAD.
3. DISTRIBUTION
3.1. Licensee will not cause any translation of the Software to be created
without ULEAD's express written consent which consent shall not be
unreasonably withheld. All rights and title to the translated work
are hereby assigned to ULEAD without further consideration.
3.2. Licensee agrees to include with every Software included as a
component of the Bundled Products or portions thereof, to the extent
mutually agreed to by ULEAD and Licensee, ULEAD's Documentation or
portions thereof, user registration card, End User Agreement, and any
other material reasonably requested by ULEAD. The limitations of
liability and remedies in Licensee's end user agreement will inure to
the benefit of ULEAD.
3.3. ULEAD agrees, from time to time, to supply to Licensee, upon two
weeks notice and for no additional cost, sufficient quantities of
user registration cards, End User Agreements, authenticity stickers
and upgrade coupons for the shipment of the Bundled Products.
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3.4. Promptly after the Effective Date, and as from time to time requested
by Licensee, upon reasonable notice, ULEAD shall, at no additional
cost, supply to Licensee logos, slides of box shots, fifty word and
other descriptive text and CD ROM artwork for Media Studio Video
Edition.
3.5. Licensee will instruct its distributors and dealers to not distribute
the Software except as part of the Bundled Products and to comply
with the licensing restrictions set forth herein. Licensee will cease
supplying any Software to any dealer or distributor which ULEAD
reasonably believes to be violating the preceding sentence and has
notified Licensee to that effect in writing.
4. ROYALTIES AND PAYMENT
4.1. Licensee agrees to pay ULEAD the License Fee on or prior to thirty
(30) days after the last day of each fiscal month for all the units
of the Software shipped by Licensee during that month.
Notwithstanding the foregoing, no License Fee is payable for (i) any
shipment of the Software which is an Update Release or a Version
Release, (ii) any shipment of the Software which is a replacement for
a defective disk and (iii) any copies of the Software distributed by
Licensee to its employees, agents or consultants for the purpose of
testing, evaluating and supporting the Software and the Bundled
Products.
4.2. All payments shall be made by check or by wire transfer to such bank
account as ULEAD may from time to time designate in writing.
4.3. Any late payment will bear Late Payment Charges as set forth herein.
These charges will accrue beginning forty-five (45) days from the
date payment is due. Any acceptance of Late Payment Charges will not
be deemed a waiver of any right which ULEAD may have under law and
equity, including the right to terminate this agreement.
4.4. Licensee may not delay payment due to any currency shortage or
exchange control. In the event any currency legislation or exchange
control precludes Licensee from making payments to ULEAD at ULEAD's
address in U.S. dollars for a period exceeding forty-five (45) days,
ULEAD will have the right to terminate this Agreement.
4.5. Any Software shipped by ULEAD will be shipped FOB ULEAD's warehouse
in California. Licensee will pay to ULEAD all freight, insurance,
duty and sales tax, if any, incurred by ULEAD (when the Software is
shipped from ULEAD's warehouse in California) when invoiced by ULEAD.
However, no sales tax will be charged if, prior to the issuance of
invoice, Licensee has
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supplied ULEAD with appropriate tax exemption certificates reasonably
satisfactory to ULEAD.
4.6. Any returns may only be made for credit against future License Fees
pursuant to ULEAD's Return Material Authorization (R. M. A.)
procedure, which has been previously provided to Licensee and which
may not be modified without prior written consent of Licensee, which
consent shall not be unreasonably withheld or delayed; provided,
however, that in the event that Licensee does not ship any additional
Software during the month that the Software is returned to ULEAD,
ULEAD shall refund the Licensee Fee paid by Licensee for the returned
Software on or prior to thirty (30) days after the last day of such
month. Licensee agrees to pay any restocking charges which ULEAD may
impose for such returns; provided that such restocking charges shall
not exceed 10% of the License Fee paid for such returned Software.
4.7. Taxes (which may include foreign and domestic sales, use, personal
property, excise or other similar taxes, or export/import taxes, but
expressly excluding income or other business or property taxes
customarily payable by a party upon its own commercial activities),
duties and charges, however designated, imposed during the term of
this Agreement on the reproduction, distribution, marketing and
sublicensing of Bundled Products which include the Software shall be
the responsibility of Licensee, as between ULEAD and Licensee
hereunder; provided that Licensee reserves the right, at is
discretion, to contest, object to or refuse payment of any such tax,
duty or charge, in whole or in part, which Licensee determines is not
rightfully imposeable upon the reproduction, distribution, marketing
and sublicensing of Bundled Products which include the Software. Any
such taxes, duties and charges which would be the responsibility of
Licensee hereunder, but which instead are actually paid by ULEAD,
shall be reimbursed by Licensee to ULEAD in Licensee's next payment
to ULEAD.
5. REPORT & AUDIT
5.1. Each monthly payment shall be accompanied by a Report of reproduction
and shipment activity for the Software during that period.
5.2. Through an independent CPA firm, ULEAD shall have the right to audit
Licensee's records twice per year during regular business hours upon
forty-eight (48) hours written notice, to verify Licensee's
compliance with the payment of royalties, as described in this
Agreement. Such audit shall pertain only to the financial matters
pertinent to the royalties payable to ULEAD and to matters pertinent
to Licensee's licensing and composition of Bundled Products. ULEAD
will pay all costs associated with such audit unless it is determined
that a material discrepancy exists, in which case Licensee will pay
such costs. A
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material discrepancy shall be defined as a deficiency of 10% or more
(such percentage calculation to be made based on the amount of
royalties that should have been paid) in unpaid royalties over the
previous 12-month period. In the event of such discrepancy, Licensee
will pay to ULEAD: (a) the amount of the discrepancy; (b) interest on
the amount at a annual rate of the higher of (1) twelve percent (12%)
or (2) three percent (3%) above the prime rate published by the Wall
Street Journal on the date it first becomes due; and (c) the costs of
the audit, within 10 business days after receipt of the audit report.
6. REPRODUCTION
6.1. ULEAD will promptly furnish to Licensee a Master for the most recent
version of the Software, but no later than 10 days after the
Effective Date. ULEAD will promptly furnish to Licensee, at no
additional cost, a Master for each Update Release and each Version
Release, within 10 days that such Release is shipped to any other
licensee or end-user of ULEAD.
6.2. Licensee will reproduce the Software according to the Reproduction
Guidelines and pursuant to this Agreement.
6.3. Any reproduction of the Software must be performed at the
Reproduction Site. Prior to changing the outside contractor that will
reproduce the Software, Licensee shall provide to ULEAD a written
notice to that effect, setting forth the new contractor's name,
address, phone number and the contact person. ULEAD may seek
assurances in writing from such outside contractor that such outside
contractor is reproducing the Software only for Licensee and not for
its own use or distribution.
6.4. Licensee will submit two (2) units of the Bundled Products including
the Software, and two (2) copies of any material referring to ULEAD,
ULEAD's products or any of its trademark in a proposed finished
version to ULEAD for written approval before distribution, which
approval will not be unreasonably withheld, delayed or conditioned.
If ULEAD has not objected to the materials submitted in accordance
with the foregoing sentence within three weeks of receiving the same,
the approval right shall be deemed waived as to such materials and
such materials may be distributed by Licensee without further
approval required from ULEAD; provided that the approval of a
Modified Manual shall be governed by Section 2.2. Any hardware or
software (other than the Software) included in such Bundled Product
must either be returned to Licensee or be paid by ULEAD, as invoiced
by Licensee, within five (5) weeks of receiving the same.
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6.5. Besides being a breach of this Agreement, Licensee agrees that any
reproduction, distribution or use of the Software in breach of this
Agreement is an infringement of ULEAD's copyright and trademark,
rights, including the distribution of any Software without a Bundled
Product or distributing any elements of the Software apart from each
other, except for purposes of evaluating, testing or supporting the
Software.
7. INTELLECTUAL PROPERTY
7.1. Licensee will reproduce all the proprietary rights notices that ULEAD
places on the applicable release of the Software as provided to
Licensee wherever such notices may appear and at the same location
and size as they appear in or on the Software or on the disks
containing the Software.
7.2. Licensee will clearly show ULEAD's ownership of the Trademarks and
adhere to ULEAD's trademark usage guideline, which has been
previously provided to Licensee and which may not be modified without
prior written consent of Licensee, which consent shall not be
unreasonably withheld or delayed. Licensee agrees that the level of
quality of the Software that it markets shall be reasonably
consistent with the level of quality of the Software marketed by
ULEAD under ULEAD's trademarks.
7.3. Licensee will not adopt or register any trademark reasonably deemed
by ULEAD to be confusingly similar to ULEAD's trademarks.
7.4. Licensee agrees that any modification, translation, reverse
engineering, decompilation or disassembly (except pursuant to this
Agreement) is prohibited under this Agreement and any such act is an
infringement of Licensee's intellectual property rights.
8. SUPPORT
8.1. To the extent provided for in Licensee's end-user agreements for the
Bundled Products, Licensee shall be responsible, at its own expense,
for providing telephone assistance and support to its customers and
end-users with respect to the Software. ULEAD shall, at its own
expense, provide prompt, reasonable and professional technical
assistance and support to Licensee with respect to the Software and,
if reasonably possible, shall answer technical questions from
Licensee within two business days.
8.2. ULEAD shall use its reasonable best efforts to correct any errors or
"bugs" in the Software of which it is notified, including any failure
of the Software to conform substantially to the specifications set
forth in the Documentation and
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any deviation from commonly accepted standards for operation of
computer software. Not limiting the generality of the foregoing,
ULEAD shall, within five business days after notice from Licensee
which specifies in reasonable detail the nature of the errors or
"bugs," correct any errors or "bugs" that cause the Software to crash
or cease operating and shall correct other errors or "bugs" within a
reasonable period of time.
8.3. Prior to the first shipment of the Bundled Products, ULEAD will
provide, at its expense, one trainer to give a full day of technical
support training to Licensee's support staff at Licensee's facilities
in Marlborough, Massachusetts, or elsewhere in the United States, as
designated by Licensee. ULEAD will provide, at its expense, an
additional day of technical support training to Licensee's support
staff at Licensee's facilities in Marlborough, Massachusetts, or
elsewhere in the United States as designated by Licensee, every time
any Version Release of the Software is made.
9. LIMITED WARRANTY
ULEAD warrants that the original disks for the Master and for any Update
Releases and Version Releases are free from material defects in material
and workmanship under normal use, provided ULEAD receives written notice
stating in detail the defect or nonperformance within one year from the
date of delivery. ULEAD warrants that the Software will perform
substantially in accordance with ULEAD's specifications set forth in the
Documentation. ULEAD's sole and exclusive obligation under this limited
warranty is to replace the defective disks and to use reasonable best
efforts to cause the Software to substantially conform to its published
specifications. Unless expressly provided in this Agreement, ULEAD MAKES NO
OTHER WARRANTY OR REPRESENTATION REGARDING THE SOFTWARE, DOCUMENTATION,
SUPPORT SERVICE, OR ULEAD'S PERFORMANCE UNDER THIS AGREEMENT, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR CONDITIONS.
10. REPRESENTATIONS AND WARRANTIES
10.1. Each party represents and warrants that:
(a) such party has all requisite corporate power and authority to
execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby;
(b) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby by such party have been duly
authorized by all
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requisite corporate action and will not result in a violation by such
party of, or constitute a default by such party under, any
contractual obligation or any organizational documents of such party
or any legal requirement applicable to such party;
(c) this Agreement has been duly executed and delivered by such party
and constitutes the legal, valid and binding obligations of such
party, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief
of debtors, the enforcement of creditors' rights generally, rules of
law governing specific performance, injunctive relief and other
equitable remedies; and
(d) no filing with or consent, approval, or authorization of any
governmental authority with jurisdiction over such party is required
for such party's performance or execution of this Agreement.
10.2. ULEAD represents and warrants that it has sufficient rights in the
Software and the Documentation, including all intellectual property
rights therein, to make the grants and commitments made in this
Agreement.
10.3. ULEAD represents and warrants that the Software and the
Documentation, or any portions thereof, do not infringe or violate
any patent, copyright, trademark or trade secret rights of any third
party in the United States or in any other country. ULEAD shall give
Licensee prompt written notice if it receives notice involving the
Software or the Documentation of any infringement or violation of any
patent or copyright, trademark or trade secret rights of any third
party.
11. INDEMNIFICATION
11.1. ULEAD shall indemnify, hold harmless and defend Licensee from and
against any and all suits, actions, damages, costs, losses, expenses
(including settle awards and reasonable attorney's fees) and other
liabilities arising from or in connection with any claim that the
Software, the Documentation, the Modified Manuals (to the extent
reproduced in whole or in part from the Documentation) or any other
material that ULEAD has provided to Licensee to be included in the
Bundled Products infringes or violates any patent, copyright,
trademark, trade secret or other proprietary right of any third party
in the United States or in any other country. Promptly after receipt
by Licensee of notice of the commencement of any action or proceeding
involving a claim of the type referred in the sentence above,
Licensee shall give written notice to ULEAD of the commencement of
such action; provided, however, that
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the failure of Licensee to give notice as provided herein shall not
relieve ULEAD of its obligations hereunder, except to the extent that
ULEAD is actually prejudiced by such failure to give notice. In case
any such action is brought against Licensee, ULEAD shall be entitled
to participate in and to assume the defense thereof to the extent
that it may wish, with counsel reasonably satisfactory to Licensee.
ULEAD may settle any such claim on a basis requiring ULEAD to
substitute for the Software and the Documentation alternative
substantially equivalent non-infringing programs and supporting
documentation; provided, however, that ULEAD shall not consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to Licensee of a release from all liability in respect
to such claim or litigation.
11.2. Licensee shall indemnify, hold harmless and defend ULEAD from and
against any and all suits, actions, damages, costs, losses, expenses
(including settle awards and reasonable attorney's fees) and other
liabilities arising from or in connection with any claim that the
Bundled Product (other than the Software, the Documentation, the
Modified Manuals (to the extent reproduced in whole or in part from
the Documentation) or any other material that ULEAD has provided to
Licensee to be included in the Bundled Products) infringes or
violates any patent, copyright, trademark, trade secret or other
proprietary right of any third party in the United States or in any
other country. Promptly after receipt by ULEAD of notice of the
commencement of any action or proceeding involving a claim of the
type referred in the sentence above, ULEAD shall give written notice
to Licensee of the commencement of such action; provided, however,
that the failure of ULEAD to give notice as provided herein shall not
relieve Licensee of its obligations hereunder, except to the extent
that Licensee is actually prejudiced by such failure to give notice.
In case any such action is brought against ULEAD, Licensee shall be
entitled to participate in and to assume the defense thereof to the
extent that it may wish, with counsel reasonably satisfactory to
ULEAD. Licensee may settle any such claim on a basis requiring
Licensee to substitute for the Bundled Product alternative
substantially equivalent non-infringing programs, hardware and
supporting documentation; provided, however, that Licensee shall not
consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to ULEAD of a release from all liability in
respect to such claim or litigation.
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12. CONFIDENTIALITY
As used in this section, "Confidential Information" means any information
related to price, technical aspects of the software or the Bundled
Products, the Software's marketing plan, the Bundled Products' marketing
plan, products under development, the terms of this Agreement and any other
information marked confidential by the furnishing party (the "Furnishing
Party") All Confidential Information shall be and shall remain the
exclusive property of the Furnishing Party, and the receiving party (the
"Receiving Party") shall keep, and have its employees and agents keep, any
and all such Confidential Information confidential and shall not copy,
publish or disclose it to others, or authorize its employees or agents or
any one else to copy, publish or disclose it to others, without the
Furnishing Party's written approval, and shall return such Confidential
Information to the Furnishing Party upon its request or in the event of
termination of this Agreement; unless such information (a) is known to the
Receiving Party at the time of receiving the information, (b) is available
in the public or furnished by a third party, through no breach of this
Agreement, (c) is independently developed by the Receiving Party, or (d) is
required to be disclosed in a judicial or administrative proceeding,
provided the Receiving Party gives immediate notice and opportunity to the
furnishing party to oppose the disclosure. Each party acknowledges that use
of the other's Confidential Information in a manner contrary to the
provisions of this Agreement would cause the other irreparable harm for
which money damages would not make the injured party whole.
13. COMPLIANCE WITH LAWS
Each of the parties agrees to comply with any material law governing such
party's performance under this Agreement.
14. LIMITATION OF REMEDIES
14.1. Either party's aggregate liability for damages to the other party
pursuant to Section 10.3 or Section 11 of this Agreement for any
cause whatsoever, whether in contract or in tort, including
negligence, cannot exceed $1,000,000. Either party's aggregate
liability for damages to the other party pursuant to this Agreement
(other than pursuant to Section 10.3 or Section 11) for any cause
whatsoever, whether in contract or in tort, including negligence,
cannot exceed the amount equal to the aggregate payments actually
made by Licensee to ULEAD under this Agreement.
14.2. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES CAUSED BY THE
OTHER PARTY'S FAILURE TO PERFORM ITS OBLIGATIONS OR FOR ANY BUSINESS
INTERRUPTION, LOSS OF PROFITS, SAVINGS, INDIRECT, SPECIAL, INCIDENTAL
OR
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CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF THE DAMAGES.
15. TERMINATION
15.1. Either party may terminate this Agreement upon thirty (30) days
written notice to the other party.
15.2. ULEAD may immediately terminate this Agreement if any of the
following events occur: (a) Licensee becomes insolvent or makes a
general assignment for benefit of creditors; (b) the filing of a
petition by Licensee for relief under the laws of bankruptcy; (c) the
filing of a petition against Licensee for relief under the laws of
bankruptcy, and such petition shall remain undismissed for thirty
(30) days; (d) the petition for an appointment or an actual
appointment of a receiver or other custodians for the business or
assets of Licensee, and such petition shall remain undismissed for
thirty (30) days; and (e) Licensee admits in writing of its inability
to pay its debts generally as they become due.
15.3. Upon termination of this Agreement, any provisions of this Agreement
which by its terms is applicable to actions or periods occurring
after termination of the Agreement, including, but not limited to
Sections 1, 7, 8, (to the extent set forth in Section 15.5), 9, 10,
11, 12, 14, 15 and 16, will remain in full force and effect; provided
that Sections 7, 9 and 10.1 shall remain in effect for one year after
such termination; Sections 10.2, 10.3 and 12 shall remain in effect
for two years after such termination; and Sections 15.5 and 15.6
shall remain in effect to the extent set forth therein.
15.4. Upon termination of this Agreement, except as set forth in Section
15.5 or 15.6, Licensee shall promptly undertake the necessary steps
to terminate Licensee's reproduction, marketing, promotion and
distribution of the Software, as such are then in progress under its
grant of license under Section 2 herewith.
15.5. Licensee will continue to provide end-user support for the Software,
and ULEAD will continue to provide support to Licensee, under Section
8 herein for ninety (90) days following the termination of this
Agreement to facilitate transition of end-user support services to
ULEAD. ULEAD agrees to provide, at its expense, in accordance with
the terms of the End-User Agreement, technical assistance and support
with respect to the Software to the Licensee's end-users following
such ninety-day period.
15.6. For ninety (90) days following the date of termination of this
Agreement, Licensee may dispose of any remaining inventory of the
Software contained in
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the Bundled Products including work-in-progress (which may be
completed), held by Licensee at the time the termination/expiration
occurs, and fill any binding orders it has theretofore received and
accepted for the Bundled Products containing the Software. Licensee
shall have a limited license, under the terms of Section 2 herein,
for the sole purpose of fulfilling such close-out contractual
obligations, and for providing the end-user support described in
Section 15.5, provided that Licensee's obligation to pay License Fees
to ULEAD, in accordance with Section 4 herein, shall continue as to
all such close-out transactions.
15.7. Any end user, distributor and OEM licenses properly granted prior to
the date of termination of this Agreement shall survive the
termination of this Agreement.
15.8. Neither party shall be liable to the other for damages, losses or
expenses which may subsequently result from a permitted termination
of this Agreement; provided, however, that such permitted termination
shall not affect any claim, demand or liability of either party
otherwise created or arising hereunder prior to such termination or
under Sections 15.5 or 15.6 after such termination.
16. DISPUTE RESOLUTION
16.1. The Agreement is entered into in the State of California, and its
validity, construction, interpretation, and legal effect will be
governed by U.S. laws and the laws applicable to contracts entered
into and performed entirely within the State of California.
16.2. Any dispute, controversy, or claim arising out of or relating to this
Agreement, or the breach, termination, or invalidity thereof, will be
settled by arbitration in Chicago following the arbitration and
conciliation procedures set forth in the Commercial Arbitration Rules
of the American Arbitration Association in force on the date of the
mailing of the notice of arbitration, provided that each of the
parties reserves the right to seek interim relief, including
temporary restraining order from any court and the parties may pursue
discovery following the local Code of Civil Procedure. The sole
arbitrator or one of the arbitrators, if more than one is required,
will have more than five (5) years experience in computer law. The
place of arbitration will be Chicago. The parties want to close the
arbitral hearing within six (6) months from the date of the
commencement of the arbitral proceedings and the arbitral award will
be made within thirty (30) days after the close of hearings and will
be final and binding upon the parties. The judgment upon the award
may be entered in any court having jurisdiction.
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17. GENERAL
17.1. Entire Agreement. This Agreement represents both parties' entire
----------------
understanding and agreement regarding the matters stated herein and
supersedes any prior communications, advertising, or representations.
This Agreement may only be modified in a written amendment signed by
an authorized officer of ULEAD and by an authorized officer of the
Licensee. Any terms stated in Licensee's purchase order contrary to
or in addition to the terms in this Agreement is hereby deleted and
of no effect.
17.2. Assignment. This Agreement may not be assigned or sublicensed by
----------
either party without the prior written consent of the other party.
Each party agrees not to unreasonably withhold or delay consent to
any assignment. Any assignment contrary to this section is void and
unenforceable.
17.3. Severability. If any provisions hereof is found invalid or
------------
unenforceable pursuant to a final judicial decree, the remainder of
this Agreement will remain valid and enforceable according to its
terms.
17.4. Delay. Except regarding performance under Section 4 of this
-----
Agreement, neither party will be deemed in default due to causes
beyond its reasonable control.
17.5. Relationship. Nothing in this Agreement is intended to create,
------------
or will be construed as creating, a joint venture, partnership,
franchise, agency, or employment relationship, it being understood
that ULEAD and Licensee are independent contractors vis-a-vis one
another.
17.6. Drafter. No party will be deemed the drafter of this Agreement
-------
which will be deemed to have been jointly prepared by the parties. If
this Agreement is ever construed, whether by a court or by an
arbitrator, such court or arbitrator will not construe this Agreement
or any provisions hereof against any party as the drafter.
17.7. Notice. Except as provided herein, all notices required hereunder
------
will be in writing and will be given by personal delivery, by
certified mail, or by facsimile transmission. All notice will be
deemed effective upon personal delivery or upon receipt of the
facsimile transmission, or on the fifth day of the date of the
postmark if solely by mail.
17.8. Waiver. A waiver of any breach or provision of this Agreement
------
will not be construed as a continuing waiver of other breaches of the
same or other provisions of this Agreement.
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17.9. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original and all of
which together will constitute one instrument.
17.10.Language. This Agreement is in the English language only, which
--------
language is controlling in all respects, and any other versions in
any other language is not binding on the parties. All communications
and notices to be made or given pursuant to this Agreement will be in
the English language.
17.11.Heading. The headings of this Agreement are provided for convenience
-------
and will not control the interpretation of the Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of
the date first above written.
ULEAD Systems, Inc. Data Translation, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. Staurenbach By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇ ▇. Staurenbach Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -----------------------------------
Title: Director of Sales Title: Vice President
------------------------------- ----------------------------------
Date: February 23, 1996 Date: February 26, 1996
-------------------------------- -----------------------------------
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Appendix A
Trademarks
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Ulead is a trademark of Ulead Systems, Inc.
MediaStudio is a trademark of Ulead Systems, Inc.
MediaStudio VE is a trademark of Ulead Systems, Inc.
MediaStudio Pro is a trademark of Ulead Systems, Inc.
EXHIBIT A
TERRITORY & TERM
Territory: Worldwide
Term: Fourteen (14) months, and automatically renewed on a year-to-year basis,
unless earlier terminated pursuant to the Agreement.
EXHIBIT B
PRODUCT AND LICENSE FEES
ULEAD Software: MediaStudio /TM/ Pro Video Edition, English, German and
French Language Version.
Quantity: 5,000 units to be reproduced for Licensee's end users
20 units to be reproduced for evaluation, testing and
support purposes.
License Fees: [material omitted and filed separately with the Securities
and Exchange Commission] per unit
Licensee product: MPEG creation board product
Reproduction Site: US Optical Disk Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Master: The Master shall contain:
English, French and German language editions of the
MediaStudio application and on-line help files;
English, French and German language versions of the user
manual in Adobe Acrobat PDF file format along with the
Acrobat reader application;
Software codecs including Cinepak and Intel Video
Interactive;
Approximately 400 MB of sample materials;
English language tours and tutorials; and
Installation applications for all of the above.