rVUE SERVICES AND LICENSE AGREEMENT BY AND BETWEEN ARGO DIGITAL SOLUTIONS, INC.
Confidential/Limited
Disclosure
Execution
Copy
rVUE
SERVICES AND LICENSE AGREEMENT
BY
AND BETWEEN
ARGO
DIGITAL SOLUTIONS, INC.
AND
LEVOIP
CORPORATION
MAY
5, 2009
Confidential/Limited
Disclosure
Execution
Copy
TABLE
OF CONTENTS
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1.
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DEFINITIONS
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1
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2.
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SCOPE
OF AGREEMENT
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3
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3.
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PHASE
I ACTIVITIES – DISCOVERY AND ENVISAGING
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3
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4.
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PHASE
II ACTIVITIES – SOFTWARE CUSTOMIZATION, CONTENT DEVELOPMENT, TRAINING
AND IMPLEMENATION AND ROLL-OUT
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3
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5.
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GRANT
OF LICENSE; RESTRICTIONS
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3
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6.
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ONGOING
DELIVERABLES AND SERVICES
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4
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7.
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FEES,
EXPENSES AND PAYMENT
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4
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8.
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PROPRIETARY
RIGHTS
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6
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9.
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CONFIDENTIAL
INFORMATION
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6
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10.
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REPRESENTATIONS
AND WARRANTIES
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7
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11.
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INDEMNIFICATION
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8
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12.
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LIMITATION
OF LIABILITY
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8
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13.
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TERM
AND TERMINATION
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8
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14.
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GENERAL
PROVISIONS
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9
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i
Confidential/Limited
Disclosure
Execution
Copy
rVUE
SERVICES AGREEMENT AND
LICENSE
This rVUE
SERVICES AGREEMENT AND LICENSE (this “Agreement”)
is dated as of May 5, 2009, by and between Argo Digital Solutions, Inc., a
company organized under the laws of the State of Delaware, with its principal
offices at 900 S.E. 3rd Avenue,
Third Floor, Fort Lauderdale, Florida 33316, USA , (“ARGO”)
and LEVOIP Corporation, a corporation organized under the laws of the State of
Washington, with its principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“LEVOIP”).
WHEREAS,
ARGO designs and implements digital media marketing networks that target
consumers at the point of purchase;
WHEREAS,
Argo’s rVue®
digital video platform, is a next-generation digital out-of-home system that
delivers custom-created, live-motion digital media to large format LCD
displays.
WHEREAS,
LEVOIP has developed a digital project for a network of up to 50,000 screens in
Italy and entered into a contract with PosteCom SpA, client and reseller, with
an initial project of 3,000 screens; and
WHEREAS,
ARGO wishes to grant LEVOIP an exclusive license to distribute and deploy rVue
in Italy under certain conditions;
NOW,
THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, LEVOIP and ARGO agree as follows:
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1.
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DEFINITIONS
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1.1.
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Defined
Terms. The following terms shall have the following
meanings:
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1.1.1.
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“rVue
Client Software” means that portion of the rVue software suite
which is located at a Site.
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1.1.2.
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“Coordinator”
means a qualified representative of a party designated by such party as
project coordinator to be responsible for supervising and coordinating the
implementation of any Statement of Work
hereunder.
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1.1.3.
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“Documentation”
means all documentation and other supporting technical information and
materials for the Licensed
Software.
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1.1.4.
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“Effective
Date” means the date first set forth above, on which date the terms
of this Agreement shall commence.
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1.1.5.
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“Intellectual
Property Rights” means worldwide statutory and common law rights
associated with: (a) patents and patent applications; (b) works of
authorship, including copyrights, copyright applications, copyright
registrations and “moral rights”; (c) the protection of trade and
industrial secrets and confidential information; (d) Trademarks (as
defined herein); and (e) divisions, continuations, renewals and
re-issuances of any of the foregoing, whether now existing or acquired in
the future.
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1.1.6.
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“Law”
means any statute, law, regulation, ordinance, rule, judgment, order,
decree, permit, concession, grant, franchise, license, agreement,
directive, guideline, policy or rule of common law, or any governmental
requirement or other governmental restriction or similar form of decision
or determination, or any interpretation or administration of any of the
foregoing by any national, state or local government (or any association,
organization or institution of which any of the foregoing is a member, or
to whose jurisdiction any thereof is subject, or in whose activities any
thereof is a participant), whether now or hereafter in
effect.
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1.1.7.
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“LEVOIP
Customer” means any person or entity for whom LEVOIP, or its
affiliates or agents, provides digital out-of-home network services
utilizing the rVue digital platform to deliver, solicit and/or deploy
advertising and promotional content.
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1.1.8.
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“▇▇▇▇.▇▇
rVue” means the rVue Client Software and the rVue Server Software
that has been customized for LEVOIP’s exclusive use in the
Territory.
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1.1.9.
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“▇▇▇▇.▇▇
rVue Program Standard Terms and Conditions” means the agreement
between the end user of the ▇▇▇▇.▇▇ rVue Client Software and LEVOIP for
the use of ▇▇▇▇.▇▇ rVue.
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1.1.10.
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“▇▇▇▇.▇▇
rVue End User License Agreement” means the license agreement among
the end user of the ▇▇▇▇.▇▇ rVue, ARGO, as the owner of rVue and LEVOIP as
the exclusive Licensee of the Licensed
Software.
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1.1.11.
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“Licensee”
or “Licensee
Party” means LEVOIP.
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1.1.12.
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“Licensor”
or “Licensor
Party” means ARGO.
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1.1.13.
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“Licensed
Software” means, collectively: (a) the Client Software; (b) the
Server Software, (c) the Documentation; and (d) any
Updates.
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1.1.14.
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“Non-Recurring
Engineering Expense” means the direct engineering labor cost
associated with the customization of rVue for LEVOIP to develop ▇▇▇▇.▇▇
rVue pursuant to the Statement of Work. Capital costs for capital items,
such as equipment used in the customization of the rVue software for
LEVOIP, shall not be included in the definition of “Non-Recurring
Engineering Expense.”
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1.1.15.
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“rVue”
means the out-of-home media system owned and developed by ARGO for
narrowcasting digital media advertisements. The rVue system facilitates
(i) receipt of the advertising media from the advertiser, (ii) secure
storage of the advertisements to be broadcast, (iii) scheduling of
broadcasts and physical delivery of the advertising media to outlet
display devices at specified network addresses. Periodically, the system
produces proof of media delivery to each network endpoint and generates
accounting reports that support billing of the advertiser and remittance
to the outlet.
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1.1.16.
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“rVue
Server
Software” means those portions of the rVue software suite that are
located at one or many head-end servers. The server software consists of
two primary components: the rVue Management Software and the rVue Web
Interface.
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1.1.17.
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“Site”
means an individual display device owned by LEVOIP or a LEVOIP Customer,
e.g. a flat-panel monitor, attached to a ▇▇▇▇.▇▇ rVue enabled media
playing device, e.g. a local personal
computer.
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1.1.18.
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“Site
Commissioning” means the event whereby LEVOIP activates a customer
Site through the ▇▇▇▇.▇▇ rVue
software.
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1.1.19.
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“Statement
of Work” means a plan for the development of the ▇▇▇▇.▇▇
rVue.
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1.1.20.
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“Territory”
means the country of Italy.
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1.1.21.
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“Trademarks”
means: (a) the trademarks, trade names and service marks used by a party,
whether registered or unregistered; (b) the respective stylistic marks and
distinctive logotypes for such trademarks, trade names and service marks;
and (c) such other marks and logotypes as either party may designate from
time to time in writing.
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1.1.22.
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“Updates”
means any modifications, error corrections, bug fixes, new releases or
other updates of the Client Software, the Server Software and
Documentation that may be provided or otherwise made available by ARGO
from time to time to any of its
customers.
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2.
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SCOPE OF
AGREEMENT
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2.1.
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Limited
Rights and Obligations. Each party hereby acknowledges and agrees
that the scope of the relationship between the parties shall be limited to
the purposes and activities expressly set forth 3 herein, and that the
rights and obligations of the parties with respect to each other shall be
limited to those expressly prescribed in this Agreement. Neither party has
any right, obligation or responsibility not specifically provided herein,
or authorized after the Effective Date by the mutual written agreement of
the parties, and no such right, obligation or responsibility shall be
implied by the terms and conditions of this Agreement or the conduct of
the parties
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3.
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PHASE
I ACTIVITIES – DISCOVERY AND
ENVISAGING
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3.1.
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Coordinators.
Each party shall designate a Coordinator to the other party in writing
within ten (10) days after the Effective Date and may change such
Coordinator thereafter upon ten (10) days prior written notice to the
other party. Each party may designate different Coordinators for different
phases under this Agreement.
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3.2.
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Define
and Document Project Goals.Within ten (10) days after the
designation of the Coordinators, ARGO and LEVOIP will commence to work
together to create a high level business strategy to define the specific
goals of the project. These will
include:
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3.2.1.
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Statement
of Objectives.
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3.2.2.
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Project
Work Plan and Implementation Plan.
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3.2.3.
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Statement
of Work for software customization.
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3.2.4.
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Detailed
specifications for software
modifications.
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3.2.5.
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Detailed
specifications for customer display and computer
equipment.
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3.2.6.
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Detailed
specifications for domestic production facilities, equipment, software and
staffing.
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3.2.7.
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Detailed
specifications for the domestic off-site hosting environment and off-site
equipment.
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3.2.8.
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Detailed
specifications of the SLA.
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3.2.9.
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Detailed
specifications for the help desk.
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3.2.10.
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Detailed
specifications for training; and
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3.2.11.
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A
joint plan outlining production execution, and sales and marketing
approach and materials.
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4.
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PHASE
II ACTIVITIES – SOFTWARE CUSTOMIZATION, CONTENT DEVELOPMENT, TRAINING
AND IMPLEMENATION AND
ROLL-OUT
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4.1.
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All
deliverables and services listed and specified in Section 3, will be
implemented on a timetable to be developed once the items in section 3
have been approved by the parties.
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5.
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GRANT
OF LICENSE; RESTRICTIONS
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5.1.
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Grant
of License. ARGO hereby grants to LEVOIP an exclusive, sub
licensable (to the extent specified in Section 5.2 below), transferable
(to the extent set forth in Section 14.2) right and license to access,
use, perform and display (publicly or otherwise) the Licensed Software in
the Territory and for the Term of this Agreement (as defined in Section
13.1). The rights granted hereunder do not include the right of LEVOIP to
have such rights exercised by a third party on LEVOIP’s
behalf.
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5.2.
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Sublicense.
To the extent necessary to deploy the Client Software to LEVOIP Customers,
including PosteCom SpA and its affiliates, LEVOIP may sublicense the
Client Software subject to the ▇▇▇▇.▇▇ rVue Program Standard Terms and
Conditions and the ▇▇▇▇.▇▇ rVue End User License
Agreement.
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5.3.
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Restrictions.
Except as otherwise provided in this Agreement, LEVOIP nor any LEVOIP
Customer, shall not: (a) copy all or any portion of the Client Software or
the Server Software; or (b) except to the extent expressly permitted by
applicable Law, notwithstanding a contractual obligation to the contrary,
decompile, disassemble or otherwise reverse engineer the Client Software
or the Server Software or the ▇▇▇▇.▇▇ rVue
service.
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6.
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ONGOING DELIVERABLES AND SERVICES
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6.1.
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Responsibilities of
LEVOIP.
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6.1.1.
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Hosting.
LEVOIP shall be responsible for hosting the Server Software and shall
provide ARGO continuous access
thereto.
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6.1.2.
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Sales
Services: It is LEVOIP’s responsibility to facilitate 3rd party
advertising by working with PosteCom SpA and its affiliates, LEVOIP
Customers, the advertisers to create content, and deploy advertising on
the client’s network. This includes but is not limited to: consulting on
the ad campaign to design and script the content, creating detailed work
orders and specifications for the content creation organization to work
from, screening and editing the content product prior to deployment,
deployment of the ads into the ▇▇▇▇.▇▇ rVue system, scheduling the ads to
run on addressable network screen nodes and running ▇▇▇▇.▇▇ rVue showing
affidavit and reporting features to support billing to the advertisers and
remittance of commission to ARGO.
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6.1.3.
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Third
Party Advertising Remittance to Argo: Payments will be made in US$
paid to ARGO thirty (30) calendar days after LEVOIP collects the ad fees
from the advertising agency.
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6.2.
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Responsibilities of
ARGO.
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6.2.1.
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Updates
and Maintenance. ARGO shall provide LEVOIP with Technical Support
as will be defined in the SLA to be developed during Phase I (or, with
respect to Client Software, the Server Software, make available to LEVOIP)
any and all Updates when they are made available by ARGO to any of its
other customers, as well as installation and set-up assistance,
maintenance and technical support, in accordance with the terms and
conditions set forth in the SLA. Any Update made available by ARGO
hereunder shall be deemed part of the Licensed Software and shall be
subject to the terms and conditions of this
Agreement.
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6.2.2.
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Technical
Support. ARGO shall provide LEVOIP with Technical Support and as
defined in the SLA to be developed during Phase
I
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6.2.3.
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Training.
Argo will train LEVOIP on the operation of the ▇▇▇▇.▇▇ rVue data center,
the rVue Client Software, physical installation at the customer site,
loading of the ▇▇▇▇.▇▇ rVue client and training of the customer on the
terms defined in the specifications delivered pursuant to Phase I
hereof.
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6.2.4.
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Reporting.
During the Term of this Agreement, ARGO shall have unlimited access to the
Licensed Software and the applications and shall produce a monthly report
detailing the number of showings for each third party advertising spot
placed into a Site (“Utilization
Report”).
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7.
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FEES,
EXPENSES AND PAYMENT
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7.1.
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All
fees, prices and payment obligations set forth in this Agreement are in
U.S. Dollars.
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7.2.
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Software
Customization. LEVOIP shall pay ARGO the Non Recurring Engineering
Expense in accordance with the Statement of Work agreed upon pursuant to
Phase I hereof.
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7.3.
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Fees.
LEVOIP shall remit to ARGO on a monthly basis, license fees (“License
Fees”) for all Sites commissioned and in use as
follows:
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Initial
License Fee
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$ | 150.00 | ||
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Monthly
License Fee
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$ | 10.00 |
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7.4.
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Third
Party Advertising Fees. ARGO shall be entitled to receive twenty
five percent (25%) of the paid advertising received from advertisers
displaying advertisements on ▇▇▇▇.▇▇ Customer’s Sites payable as
follows:
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7.4.1.
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Utilization
Report: Within five (5) business days after each calendar
month-end, ARGO shall provide LEVOIP with a Utilization Report as
described in the Section 6.1.1, Reporting, detailing the utilization of
▇▇▇▇.▇▇ rVue by
LEVOIP’s clients. Upon receipt of such report, LEVOIP
shall have sixty (60) calendar days in which to review the Utilization
Report and submit a written dispute on activity contained therein, or
asserting that activity has been
omitted.
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7.4.2.
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Payment
Remittance: LEVOIP shall remit ARGO’s twenty five percent (25%)
share of Third Party Advertising Fees within 30 calendar days following
the month-end in which such advertising fees were collected. LEVOIP shall
provide ARGO with monthly reconciliations of fees billed, collected and
unpaid for all advertisers.
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7.5.
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Expenses.
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7.5.1.
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Phase
I Expense Retainer. LEVOIP shall pay ARGO, by wire transfer, on or
before the May 14, 2009, an expense retainer (“Phase
I Expense Retainer”) of Thirty Thousand U.S. Dollars ($30,000.00).
Once the balance of the retainer reaches Five Thousand U.S. Dollars
($5,000.00), ARGO shall submit a complete accounting to LEVOIP, including
support for all expenditures, and LEVOIP shall immediately, by wire
transfer, replenish the Phase I Expense Retainer. At the conclusion of
Phase I, ARGO shall submit a final accounting to LEVOIP and return the
balance of the retainer.
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7.5.2.
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Expenses
after Phase I: LEVOIP will reimburse ARGO for all expenses,
including travel, lodging and such other reasonable out of pocket expenses
as may be incurred by ARGO in the fulfillment of its obligations under
this Agreement. LEVOIP shall, within thirty (30) business days of receipt
of an invoice from ARGO for reimbursement of expenses, remit such expense
to ARGO by wire transfer. ARGO shall account for such expenses in
accordance with generally accepted accounting principles and upon request
will provide LEVOIP with all such documentation as supports such expenses,
including staff expense reports submitted in accordance with ARGO’s
policies in force from time to time. ARGO shall not ▇▇▇▇-up any such
expenses incurred.
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7.6.
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Interest.
Any amounts payable hereunder, including payments pursuant to Sections 7.8
(Costs of Collection) and 14.5 (Attorney’s Fees), which remain overdue for
sixty (60) days or longer shall be subject to interest equal to the lesser
of one and one-half percent (1.5%) per month and the maximum amount
permitted by Law, calculated on a daily
basis.
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7.7.
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Costs
of Collection. LEVOIP shall pay any and all reasonable costs of
collection for delinquent Fees or any other such payments due to ARGO
under this Agreement, including reasonable attorneys’ fees and court
costs.
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7.8.
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Taxes.
All applicable taxes, including, without limitation, sales or use taxes,
transaction privilege taxes, gross receipts taxes and other charges such
as duties, customs, tariffs, imposts and government-imposed surcharges
shall be stated separately by LEVOIP on all reports to ARGO. LEVOIP shall
remit all such charges to the appropriate tax authority. If LEVOIP does
not collect tax from ARGO, and is subsequently audited by any tax
authority, liability of ARGO shall be limited to the tax assessment, with
no reimbursement for penalty or interest charges. If an assessment of
taxes is made relating to the Licensed Software provided by ARGO to LEVOIP
and LEVOIP Customers under this Agreement, LEVOIP shall have the right, at
its expense and with counsel selected by it, to challenge the assessment
in all forums available. Each party is responsible for its own respective
income taxes or taxes based upon gross revenues, including, without
limitation, business and occupation
taxes
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8.
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PROPRIETARY
RIGHTS
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8.1.
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ARGO’s
Proprietary Rights. Except as otherwise set forth herein, as
between ARGO and LEVOIP, ARGO own and shall retain all right, title and
interest, including, without limitation, all Intellectual Property Rights,
in and to ARGO’s Trademarks, the Licensed Software, including any
portion(s) thereof and Updates thereto. LEVOIP shall have only those
rights in and to ARGO’s Trademarks, the Licensed Software,and
Updates thereto as are expressly granted to it under this
Agreement.
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8.2.
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LEVOIP’s
Proprietary Rights. Except as otherwise set forth herein, as
between LEVOIP and ARGO, LEVOIP owns and shall retain all right, title and
interest, including, without limitation, all Intellectual Property Rights,
in and to LEVOIP’s Trademarks, and any materials produced by LEVOIP for
its customers in connection with the services it may provide to LEVOIP
Customers and any portions thereof (“LEVOIP
Materials”). ARGO shall have only those rights in and to LEVOIP’s
Trademarks and the LEVOIP Materials as are expressly granted to it under
this Agreement.
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9.
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CONFIDENTIAL
INFORMATION
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9.1.
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Definition.
“Confidential
Information” means all information and material disclosed by one
party (“Disclosing
Party”) to the other party (“Receiving
Party”) that is designated, at or before the time of disclosure, as
proprietary or confidential, or provided under circumstances reasonably
indicating that the information or material is proprietary or
confidential. In particular, “Confidential Information” of each party (as
Disclosing Party) is deemed to include any process, technique, algorithm,
formula or method; any computer program (source and object code), design,
drawing, data, research results, work in process and documentation; any
engineering, manufacturing, marketing, servicing, financing or personnel
material; and any other information or material relating to the Disclosing
Party’s present or future products, sales, suppliers, clients, customers,
employees, investors or business in each case, whether in oral, written,
graphic, electronic or other form.
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9.2.
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Use
and Disclosure Restrictions. Each party acknowledges and agrees
that the Confidential Information constitutes and contains valuable
proprietary information and trade secrets of the other party, and embodies
substantial creative efforts and confidential information, ideas and
expressions of the other party. Each party agrees: (a) to protect the
Confidential Information from unauthorized dissemination and use; (b) to
use the Confidential Information only for the performance of its
obligations and in connection with the exercise of its rights hereunder;
(c) not to disclose any Confidential Information, or any part or parts
thereof, to any of its employees, agents or contractors other than those
employees who are aware of the confidentiality obligations imposed by this
Section 8.2, and have entered into written confidentiality agreements with
such party that require such employees to comply with confidentiality
obligations no less restrictive than the requirements set forth in this
Section 8.2; (d) not to disclose or otherwise provide to any third party,
without the prior written consent of the other party, any Confidential
Information or any part or parts thereof; (e) to undertake whatever action
is necessary to prevent or remedy (or authorize the other party to do so
in its name) any breach of its confidentiality obligations set forth
herein or any other unauthorized disclosure of any Confidential
Information by its current or former employees, agents or contractors; and
(f) not to remove or destroy any proprietary or confidential legends or
markings placed upon or contained within any Confidential Information.
Notwithstanding the foregoing, either party may disclose Confidential
Information of the other party to distributors, licensees, customers,
clients, business partners and other third parties to the extent necessary
to exercise the rights and licenses with respect to Confidential
Information granted hereunder. Without limiting the foregoing, each party
agrees that it shall treat the Confidential Information of the other party
with at least the same degree of care as it would its own highly
confidential information.
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9.3.
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Exclusions.
The foregoing restrictions pertaining to the Confidential Information
shall not apply to:
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9.3.1.
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Disclosures
pursuant to an order or judgment of any court or governmental body
provided that the disclosing party gives reasonable notice of such order
or judgment to the other party prior to making such
disclosure;
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9.3.2.
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Disclosures
pursuant to any Law, provided that the disclosing party: has received a
written opinion of its counsel that such disclosure is required; has given
reasonable notice to the other party in advance of such disclosure; and
seeks confidential treatment of such information from the entity to which
the disclosure is made;
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9.3.3.
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Confidential
Information that is or becomes generally available to the public through
any means other than a breach by the receiving party of its obligations
under this Agreement;
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9.3.4.
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Confidential
Information that is developed independently by the receiving party without
use of the Confidential Information or was in possession of the receiving
party without obligations of confidentiality prior to receipt under this
Agreement; or
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9.3.5.
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Confidential
Information that is required to be disclosed by a party to enforce its
rights under this Agreement.
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9.4.
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Equitable
Relief. Each party acknowledges and agrees that, due to the unique
nature of the Confidential
Information, there can be no adequate remedy at law to compensate the
other party for the breach of this Section 9; that any such breach will
allow the other party or third parties to compete unfairly with it
resulting in irreparable harm to it that would be difficult to measure;
and, therefore, that upon any such breach or threat thereof, such party
shall be entitled to injunctive and other appropriate equitable relief
(without the necessity of proving actual damages or of posting a bond), in
addition to whatever remedies it may have at law, hereunder or
otherwise.
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10.
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REPRESENTATIONS
AND WARRANTIES
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10.1.
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Mutual
Representation. Each party represents and warrants to the other
party that it has full power and authority to enter into this Agreement,
this Agreement constitutes such party's valid and legally binding
obligation, enforceable against such party and the execution, delivery and
performance of this Agreement does not and shall not contravene or
constitute a default under, and is not and shall not be inconsistent with,
any judgment, decree or order, or any contract, agreement or other
undertaking, applicable to such
party.
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10.2.
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Warranty.
ARGO represents, warrants and covenants to LEVOIP as of the date of this
Agreement and as of each date of provision of the service to LEVOIP or
LEVOIP Customers hereunder that:
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10.2.1.
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ARGO
has the right to grant the rights and licenses contemplated by this
Agreement, without the need for any licenses, releases, consents,
approvals or immunities not yet
granted;
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10.2.2.
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the
media on which the Licensed Software is delivered to LEVOIP shall be free
from material defects in workmanship and
materials;
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10.2.3.
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the
Licensed Software shall operate in accordance with the Documentation and
other specifications therefor, and at a level of quality at least as high
as that of ARGO’s other products and
services;
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10.2.4.
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the
Licensed Software and all underlying technologies, and LEVOIP’s exercise
of its rights under this Agreement, do not and shall not infringe,
misappropriate or violate any Intellectual Property Rights, privacy or
publicity rights, or other rights of any third party, or any Law
promulgated by any government or regulatory
body;
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10.2.5.
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the
Licensed Software and their respective underlying technologies do not and
shall not contain any material bugs or defects and do not contain or make
available any viruses, worms, Trojan horses, web bugs, time bombs,
“spyware” or other harmful or invasive code or
components;
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10.2.6.
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ARGO
shall continuously provide those operation and maintenance services as
shall be set forth in an SLA to be developed pursuant to Phase I hereof;
and
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10.2.6.1.
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ARGO
has not made and shall not make any commitments inconsistent with LEVOIP’s
rights under this Agreement.
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10.3.
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Disclaimer
of Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT,
NEITHER PARTY MAKES (AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS) ANY OTHER
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES
THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF
TRADE.
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11.
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INDEMNIFICATION
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11.1.
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Indemnity
Obligations. Each party shall defend the other party from and
against any third-party claim, suit or proceeding resulting from any
breach (or any claim that, if true, would constitute a breach) of such
party’s representations, warranties or covenants in this Agreement, and
shall indemnify and hold harmless such other party from any damages,
costs, losses or liability (including attorneys’ fees and related costs)
related to or resulting from such claim, suit or proceeding, in each event
subject to the following:
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11.1.1.
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A
party seeking indemnification under this Section 11 shall: (i) provide
prompt notice of the commencement of the claim, suit or proceeding for
which indemnification is sought; provided that the failure to provide such
notice shall only affect a party's obligations to indemnify the other
party hereunder if and to the extent the indemnifying party is actually
adversely impacted by such failure; (ii) provide cooperation to the
indemnifying party, at the indemnifying party's expense; and (iii) allow
the indemnifying party to control the defense and settlement; provided,
however: (1) the party seeking indemnification may, at its option and
expense, participate and appear on an equal footing with the indemnifying
party in the claim, suit or proceeding; and (2) neither party may settle a
claim, suit or proceeding without approval of the other party, which
approval shall not be unreasonably withheld or
delayed.
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11.1.2.
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If
there is a material, bona fide claim (or threat of a claim) of
infringement, misappropriation or violation of any Intellectual Property
Right or other right of any third person in connection with the Licensed
Software, ARGO shall promptly: (i) procure for Licensee the right to
continue using the Licensed Software or (ii) replace or modify the
Licensed Software to make it
non-infringing.
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12.
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LIMITATION
OF LIABILITY
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12.1.
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Limited
Remedy. EXCEPT FOR A PARTY'S LIABILITY UNDER SECTION 10 AND EXCEPT
IN CONNECTION WITH CRIMINAL CONDUCT, WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF A PARTY, TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY
FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF
ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, HOWEVER CAUSED.
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13.
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TERM
AND TERMINATION
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13.1.
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Term.
The term of this Agreement (the “Term”)
shall commence on the date hereof and shall continue for an initial period
of three (3) years therefrom, and shall automatically renew for successive
one (1) year periods unless either party notifies the other of its
intention not to renew this Agreement prior to one hundred and eighty
(180) days before the end of the then-current term; provided, however, that at any time that
one hundred (100) or less Sites are then in operation, ARGO may only
notify LEVOIP of its intention not to renew this Agreement with a minimum
of twelve (12) months’ notice.
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13.2.
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Termination
for Default. If either party materially defaults in any of its
obligations under this Agreement, the non-defaulting party, at its option,
shall have the right to terminate this Agreement by written notice to the
other party unless, within thirty (30) calendar days after written notice
of such default, if such default is capable of being remedied during such
period, the defaulting party remedies the default. Each party shall notify
the other party within twenty-four (24) hours of its becoming aware of any
breach of the terms and conditions of this Agreement, including, without
limitation, any breach of Section
8.
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13.3.
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Termination
for Bankruptcy. Either party may terminate this Agreement if the
other party: (a) is declared insolvent or admits in writing its insolvency
or inability to pay its debts or perform its obligations as they mature;
or (b) becomes the subject of any voluntary or involuntary proceeding in
bankruptcy, liquidation, dissolution, receivership, attachment or
composition, or makes a general assignment for the benefit of creditors,
provided that, in the case of an involuntary proceeding, the proceeding is
not dismissed with prejudice within sixty (60) days after the institution
thereof.
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13.4.
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Effect
of Termination. In the event of any termination of this Agreement,
all licenses (i) granted by ARGO to LEVOIP, including without limitation,
those with respect to which LEVOIP has granted interests to LEVOIP
Customers prior to such termination, (ii) otherwise held by LEVOIP, and
(iii) that LEVOIP is obligated to grant under any offers outstanding as of
the date of termination, shall remain in effect. In addition, except as
provided in the next sentence, (i) LEVOIP shall immediately pay to ARGO
all monies due from LEVOIP to ARGO (except with respect to any services
not yet provided); (ii) each of LEVOIP and ARGO shall immediately cease
to, directly or indirectly, hold itself out to the public as being
affiliated with the other party; and (iii) neither LEVOIP nor ARGO shall
use any reproduction, counterfeit, copy or colorable imitation of the
other party's proprietary marks or undertake any other conduct which is
reasonably likely to cause confusion, mistake or deception, or which is
likely to dilute either party's rights in and to its proprietary marks. If
LEVOIP terminates this Agreement pursuant to Section 13.2, ARGO shall
provide LEVOIP, at ARGO’s sole expense, with assistance in making a smooth
transition of the service, all LEVOIP Materials and other LEVOIP data to a
successor service or solution chosen by LEVOIP and shall continue to
operate and maintain the Client Software and the Server Software for
LEVOIP and LEVOIP Customers until such transition is complete, in LEVOIP's
reasonable judgment. Termination of this Agreement by either party shall
not act as a waiver of any breach of this Agreement and shall not act as a
release of either party from any liability for breach of such party’s
obligations under this Agreement. Neither party shall be liable to the
other for damages of any kind solely as a result of terminating this
Agreement in accordance with its terms. A party’s termination of this
Agreement, and any remedy sought by either party in connection with this
Agreement, shall be without prejudice to any other right or remedy that
such party may have at law or in equity. No termination of this Agreement
shall relieve either party of breaches occurring prior to the effective
date of such termination.
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13.5.
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Survival
of Provisions. The provisions of Sections 1 (“Definitions”), 8
(“Proprietary Rights”), 9 (“Confidential Information”), 10
(“Representations and Warranties”), 11 (“Indemnification”), 12
(“Limitation of Liability”),13 (“Term and Termination”), and 14 (“General
Provisions”) shall survive the expiration or any termination of this
Agreement.
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14.
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GENERAL
PROVISIONS
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14.1.
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Notices.
Any notices(s) required or permitted to be given or made by a party under
this Agreement shall be in writing to the other party at the address of
such party as set out at the head of this Agreement addressed to the
attention of the officer of such party who executes this Agreement.
Whenever one party is required or permitted to give written notice to the
other pursuant to this Agreement, such notice(s) shall be deemed to be
duly given on the earlier of (i) actual receipt, irrespective of whether
sent by post, telex, cable, electronic or facsimile transmission (followed
by mailing of a hard copy), overnight courier or other method, and (ii) on
the third (3rd) day after mailing by registered or certified airmail from
the country in which the notice originated, return receipt requested and
postage prepaid. A party may from time to time change its address for
notification purposes and or the parties to be notified by giving the
other party written notice of the new address and/or parties and the date
upon which the change will become
effective.
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14.2.
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Assignment.
This Agreement and the licenses granted hereunder are to a specific entity
or legal person, which does not include corporate subsidiaries, affiliates
or parent company of either party, and all rights hereunder are not
assignable nor are the obligations imposed delegable by either party
without the prior written consent of the other party; provided, however, either party
may assign all or any of its rights (but may not delegate all or any of
its obligations) hereunder without such consent to (a)
a purchaser of, or successor to, all or substantially all of such party’s
assets or (b) an Affiliate of such
party.
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14.3.
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Governing
Law. This Agreement is to be construed in accordance with and
governed by the internal laws of the State of Florida, U.S.A. without
giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State
of Florida to the rights and duties of the parties. This Agreement shall
not be governed by the United Nations Convention on Contracts for the
International Sale of Goods, the application of which is hereby expressly
excluded.
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14.4.
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Construction.
This Agreement has been negotiated by the parties and their respective
counsel. This Agreement shall be interpreted fairly in accordance with its
terms and without any construction in favor of or against either
party.
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14.5.
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Attorneys’
Fees. If any legal action, including, without limitation, an action
for arbitration or injunctive relief, is brought relating to this
Agreement or the breach hereof, the prevailing party in any final judgment
or arbitration award, or the non-dismissing party in the event of a
dismissal without prejudice, shall be entitled to the full amount of all
reasonable expenses, including all court costs, arbitration fees and
actual attorney fees paid or incurred in good
faith.
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14.6.
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Waiver.
No delay or omission by either party to exercise any right or power shall
impair any such right or power or be construed to be a waiver thereof. A
waiver by any party of any of the covenants, conditions or agreements to
be performed by the other or any breach thereof shall not be construed to
be a waiver of any succeeding breach thereof or of any other covenant,
condition or agreement herein contained. No change, waiver or discharge
hereof shall be valid unless in writing and signed by an unauthorized
representative of the party against which such change, waiver or discharge
is sought to be enforced.
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14.7.
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Severability.
If any provision of this Agreement is declared or found to be illegal,
unenforceable or void, the parties shall negotiate in good faith to agree
upon a substitute provision that is legal and enforceable and is as nearly
as possible consistent with the intentions underlying the original
provision. If the remainder of this Agreement is not materially affected
by such declaration or finding and is capable of substantial performance,
then the remainder shall be enforced to the extent permitted by
law.
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14.8.
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Relationship
of the Parties. It is expressly understood that ARGO and LEVOIP
intend by this Agreement
to
establish the relationship of independent contractors and do not intend to
undertake the relationship of principal and agent or to create a joint
venture or partnership between them or their respective successors in
interests. Neither ARGO nor LEVOIP shall have any authority to create or
assume, in the name or on behalf of the other party, any obligation,
express or implied, nor to act or purport to act as the agent or the
legally empowered representative of the other party hereto for any purpose
whatsoever.
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14.9.
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No
Third Party Beneficiaries. Except as expressly stated herein to the
contrary, nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to this Agreement and
their respective successors and permitted assigns. Nothing in this
Agreement is intended to relieve or discharge the obligation or liability
of any third persons to a party to this Agreement, nor shall any provision
give any third persons any right of subrogation or action over or against
any party to this Agreement.
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14.10.
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Export
Controls. ARGO shall abide by all applicable export laws and
regulations in its provision of the Licensed Software to LEVOIP and LEVOIP
Customers.
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14.11.
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Nature
of Rights. The parties agree that the rights granted to LEVOIP as
licensee hereunder, including, without limitation, those rights granted in
Section 4.1, are rights in “intellectual property” within the scope of
Section 101 (or its successors) of the United States Bankruptcy Code (the
“Code”).
LEVOIP, as licensee, shall have the rights set forth herein with respect
to the Licensed Software (for the Territory) when and as developed or
created. In addition, LEVOIP, as a licensee of intellectual property
rights hereunder, shall have and may fully exercise all rights available
to a licensee under the Code, including, without limitation, under Section
365(n) or its successors without the payment of any fees. In the event of
a case under the Code involving ARGO, LEVOIP shall have the right to
obtain (and ARGO or any trustee for ARGO or its assets shall, at LEVOIP’s
written request, deliver to LEVOIP) a copy of all embodiments (including,
without limitation, any work in progress) of any intellectual property
rights granted hereunder, including, without limitation, embodiments of
any Licensed Software, or any other intellectual property necessary or
desirable for LEVOIP to use or exploit any Licensed Software or to
exercise its rights hereunder. In addition, ARGO shall take all steps
reasonably requested by LEVOIP to perfect, exercise and enforce its rights
hereunder, including, without limitation, filings in the U.S. Copyright
Office and U.S. Patent and Trademark Office, and under the Uniform
Commercial Code.
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14.12.
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Section
Headings and Captions. The parties agree that the section and
paragraph headings and captions used in this Agreement are for reference
purposes only and shall not be used in the interpretation of this
Agreement.
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14.13.
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Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one single agreement. Signatures to this
Agreement may be transmitted by facsimile and such transmission shall be
deemed a valid original.
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14.14.
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Modification.
No amendment or modification to this Agreement shall be valid or binding
upon the parties unless in writing and signed by an officer of each
party.
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14.15.
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Entire
Agreement. This Agreement is the final, complete and exclusive
agreement between the parties relating to the subject matter hereof, and
supersedes all prior or contemporaneous proposals, understandings,
representations, warranties, promises and other communications, whether
oral or written, relating to such subject matter, including the Prior
Agreement. It is expressly understood and agreed that, because there are
no expectations to the contrary between the parties hereto, no usage of
trade or other regular practice or method of dealing, either within the
Territory, the “computer industry,” the software industry or between the
parties hereto shall be used to modify, interpret, supplement or alter in
any manner the express terms of this Agreement or any part
hereof.
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IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed by duly authorized
representatives of the parties as of the date set forth on the first page of
this Agreement.
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ARGO
DIGITAL SOULTIONS, INC.
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇
▇. ▇▇▇▇▇
Chief
Executive Officer
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LEVOIP
CORPORATION
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By:
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/s/
Gian ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Gian
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
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12
ASSIGNMENT
AGREEMENT
THIS
ASSIGNMENT AGREEMENT (this “Agreement”), dated September
16, 2009 (the “Assignment
Date”), is by and between Argo Digital Solutions, Inc., a Delaware
corporation (“Argo”),
and rVue, Inc., a Delaware corporation (“rVue”).
In
consideration of the mutual promises contained in this Agreement, rVue and Argo
agree as follows:
1. Assignment of
Contract. Argo hereby assigns and transfers to rVue, and rVue hereby
acquires and assumes from Argo, for the consideration and upon the terms
provided herein, the following (the “Contract”):
1.1 all
right, interest and obligations of Argo under the rVue Services and License
Agreement dated May 5, 2009 by and between Argo and LEVOIP Corporation, a
Washington corporation (“LEVOIP”) (the “Services Agreement”), to the
extent that such right, interest and obligations vest, are incurred or arise
after the Assignment Date;
1.2 all
lists and databases maintained by or on behalf of Argo related to or associated
with the Services Agreement, including the data, information and analysis
contained therein, in any and all forms and medium, and all information and
materials related thereto, but solely to the extent such [ILLEGIBLE] and
databases relate solely and exclusively to the performance of the obligations of
Argo under the Services Agreement (to the extent they relate to periods prior to
the Assignment Date, Argo may retain copies thereof);
1.3 all
financials and business records, correspondence, data files, budgets and records
(whether in printed form or electronic form), including accounting records,
order forms, purchase orders, forecasts, confirmations, receipts, shipping
documentation, sales history records, property records, mailing lists, supplier
and vendor lists and record, and other records and files, in each case as
related to the Services Agreement, but solely to the extent such records,
correspondence, files and budgets relate solely and exclusively to the
performance of the obligations of Argo under the Services Agreement (to the
extent they relate to periods prior to the Assignment Date, Argo may retain
copies thereof);
1.4 all
right, interest and obligations (to the extent such obligations arise after the
Assignment Date) of Argo under all contracts, purchase orders or agreements of
any kind related to the Services to be performed under the Services Agreement
(the “Ancillary
Contracts”), including without limitation, shipping, transport or carrier
agreements, warehousing contracts, material supply agreements, and subcontractor
agreements of any type, and all claims and rights of every kind in favor of Argo
to the extent arising out of such Ancillary Contracts after the Assignment Date,
but solely to the extent the Ancillary Contracts relate solely and exclusively
to the performance of the obligations of Argo under the Services
Agreement;
1.5 all
materials (whether in printed form or electronic form), used, held for use or
intended to be used in connection with the Services Agreement, including all
promotional materials, sales solicitation materials, sales reports, customer and
contract lists, research materials, and market surveys;
1.6 any
prepayments, deposits or advances made by LEVOIP in each case for products and
services to be provided pursuant to the Services Agreement after the Assignment
Date, and any rights, claims or priorities with respect to receivables under the
Services Agreement for services to [ILLEGIBLE] performed after the Assignment
Date;
1.7 any
rights with respect to unbilled work-in-progress under the Services
Agreement;
1.8 any
prepaid expenses, prepaid subscriptions, advances and security deposits relating
specifically to the Services Agreement, but solely to the extent such expenses,
subscriptions, advances and deposits relate solely and exclusively to the
performance of the obligations of Argo under the Services
Agreement;
1.9 to
the extent arising after the Assignment Date, all causes of action, judgments,
claims, including insurance claims, demands and other rights of every kind or
nature relating to the Services Agreement or any Ancillary Agreement, and all
rights relating to or arising out of or under express or implied guarantees,
warranties, indemnities and similar rights in favor of Argo related thereto;
and
1.10 all
other assets, properties, rights and claims specifically and solely related to
the Services Agreement.
2. Excluded Liabilities.
It is acknowledged and agreed between the parties that Argo is not assigning,
and rVue is not assuming, any liabilities, indebtedness or obligations whether
in the favor of LEVOIP or another third party, arising under or in connection
with the Services Agreement to the extent that they arose or were incurred prior
to the Assignment Date (the “Excluded Liabilities”). Excluded Liabilities
shall include all costs and expenses associated with claims related to the
services provided by Argo or LEVOIP pursuant to the Services Agreement or any
Ancillary Agreement prior to the Assignment Date. The parties agree that Argo is
responsible for all obligations arising under the Services Agreement prior to
the Assignment Date and rVue will be responsible for all obligations under the
Services Agreement arising after the Assignment Date. Rvue hereby agrees to
accept and perform [ILLEGIBLE] of the rights and responsibilities arising under
the Services Agreement arising on or after the Assignment Date.
3. Representations and
Warranties of Argo. Argo represents and warrants as follows:
3.1 Argo
has full right, power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Argo and constitutes a valid and binding obligation [ILLEGIBLE]
against Argo in accordance with its terms.
3.2 Argo
has obtained the written consent of LEVOIP to the assignment of all its right,
interest and obligations in the Services Agreement to rVue.
3.3 A
true, correct and complete copy of the Services Agreement has been delivered to
rVue.
2
4. Representations and
Warranties of rVue. rVue represents and warrants as follows:
4.1 rVue
has full right, power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby.
4.2 This
Agreement has been duly executed and delivered by rVue and constitutes a valid
and binding obligation enforceable against rVue in accordance with its
terms.
5. Indemnification.
5.1 By Argo. Argo agrees to
protect, defend, indemnify and hold harmless rVue, its officers, directors,
employees, agents, stockholders and affiliates and their respective successors
and assigns, from, against and in respect of, and shall pay any and all losses,
damages, charges, obligations, claims, encumbrances, deficiencies, costs or
expenses (including reasonable legal fees and expenses) incident to any third
party action, investigation, claim or proceeding (the forgoing being
collectively referred to as “Losses”) suffered, sustained,
incurred or required to be paid by such indemnified persons relating to, in
connection with or resulting from (i) any representation or warranty of Argo in
this Agreement being untrue or incorrect in any respect, including any claim by
such third party which, [ILLEGIBLE] the truthfulness thereof, could constitute a
breach of Argo’s representations or warranties hereunder; (ii) any breach or
default of any covenant, agreement or commitment made by Argo in this Agreement;
and (iii) any of the Excluded Liabilities.
5.2 By rVue. rVue agrees
to protect, defend, indemnify and hold harmless Argo, its officers, directors,
employees, agents, stockholders and affiliates and their respective successors
and assigns, from, against and in respect of, and shall pay any and all Losses
suffered, sustained, incurred or required to be paid by such indemnified persons
relating to, in connection with or resulting from (i) any representation or
warranty of rVue in this Agreement being untrue or incorrect in any respect,
including [ILLEGIBLE] claim by such third party which, assuming the
truthfulness thereof, could constitute a breach of rVue’s representations or
warranties hereunder; (ii) any breach or default of any covenant, agreement or
commitment made by rVue in this Agreement; and (iii) the Services Agreement or
any Ancillary Agreement after the Assignment Date, except to the extent caused
by any breach or default of any covenant, agreement or commitment made by Argo
in the Argo Services Agreement.
5.3 Procedure. For
purposes of this Section 5, the party entitled to indemnification shall be known
as the “Indemnified Party” and the party required to indemnify shall be known as
the “Other Party.” In the event that the Other Party shall be obligated to the
Indemnified Party pursuant to [ILLEGIBLE] Section 5 or in the event that a suit,
action, investigation, claim or proceeding is begun, made or instituted as a
result of which the Other Party may become obligated to the Indemnified Party
hereunder, the Indemnified Party shall give prompt written notice to the Other
Party of the occurrence of such event; provided, however, that the failure to
give such notification shall not affect the indemnification provided hereunder
except to the extent the Other Party shall have been actually and materially
prejudiced as a result of such failure. The Other Party shall defend, contest or
otherwise protect against any such suit, action, investigation, claim or
proceeding at the Other Party’s own cost and expense. The Indemnified Party
shall have the right but not the obligation to participate at its own expense in
the defense thereof by counsel of its own choice. In the event that the Other
Party fails timely to defend, [ILLEGIBLE] or otherwise protect against any such
suit, action, investigation, claim or proceeding, the Indemnified Party shall
have the right to defend, contest or otherwise protect against the same and may
make any compromise or settlement thereof, the Other Party shall be bound by the
actions taken by the Indemnified Party and the Indemnified Party shall be
entitled to recover the entire Loss resulting [ILLEGIBLE] from the Other Party,
including reasonable legal fees and expenses, disbursements and all [ILLEGIBLE]
paid as a result of such suit, action, investigation, claim or proceeding or
compromise or settlement thereof. No claim or proceeding may be paid, settled or
otherwise compromised by the Other Party without the consent of the Indemnified
Party (which consent may be withheld in the sole discretion of the Indemnified
Party) if such payment, settlement or other disposition requires payment or
other participation from the Indemnified Party, involves an admission of
wrongdoing by the Indemnified Party, or purports to limit the activities of, or
otherwise restricts in any way, any Indemnified Party.
3
6. Miscellaneous.
6.1 The
parties have agreed that the validity, construction, operation and effect of any
and all of
the terms and provisions of this Agreement shall be determined and enforced in
accordance with the laws of the State of New York (without regard to the
principles of conflict laws that would result in the application of the laws of
any other jurisdiction). Any legal action or proceeding with respect to this
Agreement or any matter related thereto will be brought exclusively in the
courts of the State of New York venued in New York County or of the United
States for the Southern District of New York venued in New York County. By
execution and delivery of this Agreement, each party hereto hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of [ILLEGIBLE] courts and irrevocably waives any objection which
such party may now or hereafter have [ILLEGIBLE] such jurisdiction.
6.2 All
notices, requests or other communications required or permitted hereunder shall
be given in writing by hand delivery; overnight courier; registered mail;
certified mail, return receipt requested, postage prepaid; and any copy of any
such notice, request or other communication may be sent by facsimile to the
party to receive the same at its respective address set forth below, or at such
other address as may from time to time be designated by such party to the others
in accordance with this Section 6.2:
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[ILLEGIBLE]
to rVue, to:
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If
to Argo, to:
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rVue,
Inc.
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Argo
Digital Solutions, Inc.
|
|
Attn.:
▇▇▇▇▇ ▇▇▇▇▇\Chief Executive Officer
|
Attn.:
▇▇▇▇▇ ▇▇▇▇▇\Chief Executive Officer
|
|
▇▇▇
▇▇ ▇▇▇
▇▇▇., ▇▇▇
▇▇▇▇▇
|
▇▇▇
▇▇ ▇▇▇
▇▇▇., ▇▇▇
▇▇▇▇▇
|
|
▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Ft.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
All such
notices and communication hereunder shall be deemed given when received, as
[ILLEGIBLE] by the acknowledgment of receipt issued with respect thereto by the
applicable postal authorities or the signed acknowledgment of receipt of the
person to whom such notice or communication shall have been addressed. Nothing
contained in this Section 6.2 shall be deemed to constitute consent to the
manner and address for service of process in connection with any legal
proceeding (including but not limited to litigation arising out of or in
connection with this Agreement), which services shall be effected as required by
applicable law.
6.3 This
Agreement contains the entire agreement between the parties with respect to the
subject matter hereof and supersede any previous or contemporaneous agreements,
written or oral, [ILLEGIBLE] the parties with respect to such subject matter.
This Agreement may be amended only by a written instrument executed by the
parties.
4
6.4 The
parties shall execute and deliver such other instruments and take such other
actions as may be reasonably necessary to give effect to the transactions
contemplated hereby.
6.5 The
headings listed herein are for convenience only and do not constitute matters to
be construed in interpreting this Agreement.
6.6 This
Agreement may be executed in any number of counterparts, each of which shall be
an original but all of which taken together shall constitute one and the same
agreement.
6.7 In
the event of any dispute or action regarding this Agreement, the non-prevailing
party in such dispute or action shall pay on demand all reasonable costs and
expenses of the prevailing party, including attorneys’ fees.
6.8 If
any provision of this Agreement shall be declared void or unenforceable by any
Judicial or administrative authority the validity of any other provision and of
the entire Agreement shall not be affected thereby.
[Remainder of page intentionally left blank;
signature page follows]
5
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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ARGO
DIGITAL SOLUTIONS, INC.
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||
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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|
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Title:
|
||
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Date:
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||
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RVUE,
INC.
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||
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By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Title:
|
||
|
Date:
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||
6