LICENSING AND MARKETING AGREEMENT
WITH TECHNICAL SUPPORT
THIS AGREEMENT made and entered into this 5th day of January, 1997, by
and between NDS SOFTWARE, INC., a Nevada Corporation (NDS), and IPONG
INTERNATIONAL, INC., a Nevada Corporation (hereinafter collectively referred to
as LICENSEE).
WHEREAS, NDS has partially developed and owns all proprietary rights
in an interactive advertising game for us on the Internet, commonly known as
"IPONG", as more fully defined and referred to hereinafter as the "PRODUCT";
WHEREAS, LICENSEE is desirous of obtaining an exclusive license from
NDS for development, use and marketing of the PRODUCT and assignment of
associated trade names and trademarks therefore;
WHEREAS, NDS has experience in developing an Internet "website" and
agrees to provide technique services to LICENSEE in areas of product
development, website support and management to complete development of the
PRODUCT; and,
WHEREAS, LICENSEE has experience in marketing, management and
financing of products and services and the parties are desirous of pursuing the
potentials of the PRODUCT through their respective capabilities to complete the
development and commence marketing of the PRODUCT for their mutual benefit;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. TERM OF AGREEMENT: This Agreement shall
be effective for an initial term of ten (10) years from the date hereof, and
shall automatically renew for a like term unless and until either party provides
thirty (30) days written notice of termination to the other.
2. DEFINITIONS: As used herein, the
following definitions shall apply:
2.1. PRODUCT shall mean collectively the Software
and Documentation (as hereinafter defined).
2.2. SOFTWARE shall mean the software commonly known as "IPONG" and
identified on SCHEDULE A, annexed hereto and made a part hereof, in object and
source code forms, and shall include all updates and revisions thereto supplied
by NDS during the term hereof, and all permitted copies of the foregoing.
2.3. DOCUMENTATION shall mean all documentation,
other than the Software, related to the Software supplied or
developed by NDS hereunder.
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2.4. LIVE DATE shall mean the date that the website for the PRODUCT
becomes functional and can be accessed on the Internet by the public, but does
not include completion of advertiser graphics or banner ads, player profile
data, or category questions required to play the game.
2.5. WORK REQUEST shall mean the document, in a form acceptable to
NDS, requesting and defining the scope of services requested by LICENSEE and to
be rendered by NDS pursuant to the terms of the Agreement, including technical
support, product development, management consulting, and change modifications or
enhancements to the PRODUCT.
3. LICENSE: NDS hereby grants to LICENSEE,
and LICENSEE hereby accepts, an exclusive license to develop, use and market the
PRODUCT during the term hereof, subject to the terms and conditions set forth
herein.
4. LICENSE FEES, CHARGES AND TAXES:
4.1. LICENSE FEE: LICENSEE shall pay to NDS the following percentage
of gross revenues from sales: 7% for the first year after live date, 10% for the
second year, and 15% thereafter. The LICENSE FEE shall be due and payable
quarterly within fifteen (15) business days of the end of each quarter.
Additionally, LICENSEE shall pay $58,333.00 per month to NDS for one year
beginning ____________ and accruing January 1, 199_, the first payment due upon
financing and each month in arrears thereafter. At the time of payment of any
installment, LICENSEE shall render an accounting to NDS of revenues derived from
the PRODUCT from any source with all supporting documentation, in the medium,
form and manner as may reasonably be requested by NDS.
4.2. TECHNICAL SUPPORT FEES: LICENSEE shall pay
the following amounts for the respective technical support services
provided by NDS pursuant to any work request:
4.2.1. Webpage development, website changes
or customization, and management consulting at a rate of $125.00 per
hour; and,
4.2.2. Questions development at a rate of
$0.50 per question. Technical support fees shall be due and payable
by LICENSEE within ten (10) business days after receipt of an invoice
for services from NDS. The technical support fees shall be
adjusted
upward annually according to the "best price" offered by and charged
by NDS to its preferred vendors, which shall
not exceed an increase of 10% over the amount charged in the previous
year. Failure by the LICENSEE to pay NDS, at its election, to stop
work until payment is made without liability for any damages or being
considered in breach of contract.
4.3. WEBSITE FEES: LICENSEE shall pay to NDS the
sum of $20,000.00 per month for the day-to-day management and
operation of the website on a twenty four hours per day, seven days
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per week basis beginning on live date. Website fees shall be due and payable on
the first of each month without demand, and will be considered past due if not
paid within fifteen (15) days of the due date.
4.4. PAYMENT TERMS: LICENSEE shall be responsible for payment of all
applicable state and federal taxes, fees, charges and assessments attributable
to the PRODUCT, including without limitation, personal property taxes,
registration and other licensing fees. Any amounts not paid when due shall bear
interest at a rate of 12% per annum, and all payments shall first be applied to
principal then to accrued interest. Any unpaid balance outstanding for more than
90 days shall be considered a breach of the Agreement.
4.5. INVOICES FOR TECHNICAL SUPPORT: On or about
the first day of each month, NDS will prepare and submit an invoice
for technical support to LICENSEE estimating the costs, charges and
fee to be incurred by NDS during that month. In addition, on or
about the tenth of each month, NDS shall prepare and submit to
LICENSEE a reconciliation statement setting forth the actual charges,
costs and fees incurred during the previous month. Any differences
between the estimated amounts and actual amounts for a particular
month shall be adjusted on the next month's invoice. NDS will submit
the final invoice to LICENSEE within 10 days following the end of the
month. All invoices for technical support fees will be due and
LICENSEE. In the event of a dispute over any invoice, LICENSEE shall
pay timely that portion not in dispute and the parties shall make
every effort to settle the dispute within 20 days.
5. LICENSEE OBLIGATIONS
5.1. WEBSITE: LICENSEE shall immediately purchase all necessary
computer and Internet hardware equipment and on-line services as needed and
recommended by NDS to establish and construct the website for operation of the
PRODUCT, LICENSEE agrees to retain NDS on an exclusive basis to operate the
website after the live date and all services provided by NDS in this regard
shall be paid by LICENSEE as set forth in Article 4 herein. LICENSEE shall
provide for and be responsible to pay all costs and expenses attributable to the
operation of the website including, without limitation, telephone costs and
charges, rental for space occupied by the website, utilities, security,
maintenance of equipment and hardware, and all costs for insurance. LICENSEE
shall obtain adequate office space (if necessary) in a satisfactory location as
determined by NDS.
5.2. TECHNICAL SUPPORT/PRODUCT DEVELOPMENT: LICENSEE agrees to retain
NDS on an exclusive basis prior to and after the live date to provide finish
graphics for advertisers, question development, webpage development, and any
enhancements, changes, modifications, or customization of the PRODUCT or website
as may be requested by LICENSEE or any advertisers. NDS shall also provide
website management consulting as requested by LICENSEE. All services provided by
NDS shall be paid by LICENSEE as set forth in
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Article 4 herein. In the event NDS agrees to provide any service by a specific
date but fails to deliver as promised, LICENSEE may out-source the particular
work request to a third party; provided, however, that any further services
shall continue to be provided exclusively by NDS unless otherwise mutually
agreed by the parties.
5.3. MARKETING OF PRODUCT: LICENSEE shall obtain an opinion of counsel
as to the legality of the PRODUCT as to gambling and prize pool aspects prior to
performing any marketing of the PRODUCT. NDS shall immediately apply for and
obtain and keep current all appropriate Copyright and Patent registrations for
the PRODUCT and any enhancements, upgrades or modifications thereto on behalf of
and in the name of NDS as owner.
5.4. PRIZE FUND POOL: LICENSEE shall at all times maintain and
disburse the prize fund pool as a trust account with applicable fiduciary
duties. Irrespective of this obligation, nothing herein is to be constructed as
conferring any claim, cause or right of action upon or for any person or entity
directly or indirectly against NDS arising or resulting from the PRODUCT for
prize money or any other benefit or compensation, and LICENSEE expressly agrees
to indemnify NDS for any such damages or claims pursuant to Articles 1 and 13
hereof.
5.5. LICENSEE'S REPRESENTATIVES: LICENSEE shall,
at its own expense, appoint in writing an individual, hereinafter
referred to as the "LICENSEE'S REPRESENTATIVE", who shall be authorized to act
on behalf of LICENSEE who whom NDS may consult at all reasonable times, and
whose instructions, requests and decisions will be binding upon LICENSEE as to
all matters pertaining to this Agreement and the performance of the parties
hereunder.
5.6. ACCOUNTING: LICENSEE shall maintain and keep available adequate
books and records according to generally accepted accounting principles for all
revenue generated or attributable to the PRODUCT. LICENSEE shall preserve and
maintain such records for inspection for a minimum of 3 years or such further
period of time as NDS may designate in writing. NDS shall have the right to
audit the books and records during normal business hours upon 5 days written
notice. In the event the audit results exceed the revenue amounts declared by
LICENSEE by an amount equal to or greater than 4%, LICENSEE shall reimburse NDS
for the cost of the audit out of its portion of the net revenues.
5.7. COMPLIANCE WITH LAW: LICENSEE hereby
warrants and represents that it shall conduct or operate the PRODUCT
in compliance with any and all applicable federal, state and local
laws, rules and regulations.
6. NDS OBLIGATIONS
6.1. WEBSITE: Subject to LICENSEE'S continued
performance of all obligations hereunder, NDS shall establish the
website by connecting all hardware and installing all programming
necessary for operation of the PRODUCT on the Internet. Such
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technical support services provided by NDS in this regard shall be paid by
LICENSEE as set forth in Article 4 herein.
6.2. PRODUCT DEVELOPMENT: NDS shall complete the basic development of
the PRODUCT, without charge, to the live date, including basic webpage graphics
and button functions. The PRODUCT shall be considered complete and delivered to
LICENSEE upon the live date. Any further enhancements, charges, customizing or
modifications shall be performed by NDS as technical support at the rates set
forth herein.
6.3. WORK REQUESTS: NDS agrees to exercise due
diligence in meeting the estimated completion schedule agreed upon
the parties in any work request. NDS shall, subject to the terms and
provisions of the Agreement, furnish the services of all necessary
principals, lead professionals, programmers and other personnel
necessary for the performance of the services.
6.4. NDS REPRESENTATIVE: NDS shall appoint, in writing, one or more
individuals who shall be authorized to act on behalf of NDS and with whom
LICENSEE may consult at all reasonable times, and whose instructions, requests
and decisions will be binding upon NDS as to all matters pertaining to this
Agreement and the performance of the parties hereunder.
7. PROTECTION OF PROPRIETARY INTERESTS
7.1. LICENSEE acknowledges that the PRODUCT and all permitted copies
thereof are NDS'S exclusive property. LICENSEE shall not disclose or make
available to third parties the PRODUCT or any portion thereof without NDS'S
prior written consent. It is the intent of this Agreement that NDS retain
exclusive ownership rights to the PRODUCT and nothing herein is to be in any way
construed as creating any right, title, claim or interest of LICENSEE whatsoever
i the PRODUCT or any other proprietary rights of NDS, except as otherwise
expressly stated herein.
7.2. Upon any termination, cancellation or expiration of the
Agreement, LICENSEE shall return the PRODUCT and all copies thereof to NDS, or
destroy the same and submit evidence thereof to NDS.
7.3. The parties acknowledge that NDS shall continue to own all
proprietary interests in the PRODUCT and NDS shall use its best efforts and
every means to protect the PRODUCT from infringement by others.
8. CONFIDENTIALITY. The parties agree that,
during the term of this Agreement or any extensions hereof, and for a period of
three (3) years thereafter, each will keep confidential any information which
they obtain from the other or any of their subsidiaries, sister corporations or
concerns, now or hereafter existing or created, concerning their properties,
assets, properties assets, source codes, data bases, copyrights, business
methods and trade secrets. Upon termination hereof the parties will return to
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the other all written matter regarding their respective business obtained by
them in connection with the negotiation, consummation or performance of this
Agreement. The parties shall retain all patents, copyrights, trade secrets,
license and any other rights to their respective programs and enhancements
thereto.
9. EXCLUSIVITY. During the term of this
Agreement and any extensions hereof, and for a period of three (3) years
thereafter, the parties agree not to directly or indirectly solicit business
from, engage in business with, or divert business from any current or future
customers of either party with regard to the parties' product, and that neither
party will participate as a shareholder, partner, employee, consultant or
otherwise in any enterprise engaging in activities that would violate this
provision if engaged in them directly. This covenant shall be applicable to the
entire United States Of America on the basis that the parties sell or expect to
sell the PRODUCT nationally and world wide, and the parties acknowledge and
agree that the scope of this covenant in time and geographic area is reasonable
given the special relationship of the parties and the nature of the Internet.
10. REPRESENTATIONS AND WARRANTIES. The
parties hereby agree to the following representations and warranties:
10.1. RIGHT TO GRANT: NDS has an unrestricted exclusive right to use,
execute and reproduce its product, enhancements and upgrades thereof, and to
sell, lease or otherwise distribute the PRODUCT without obligation or
restriction of any kind. NDS is the sole and exclusive owner of and has good and
marketable title to the PRODUCT and is duly authorized and empowered to lease
the rights to the PRODUCT without the consent of any other person or entity;
and; there are no debts, liens, encumbrances or obligations against the PRODUCT
and NDS has paid all taxes, charges, debts and other assessments as may be
attributed thereto and that all debts and obligations relating thereto are and
will remain fully satisfied. The PRODUCT is not subject to any permits,
licenses, subscriptions or grants of use or any right whatsoever other than as
otherwise described herein and NDS has not sold or granted any interest, whether
in total or in part, in any portion of the PRODUCT to any person or entity.
10.2. INFRINGEMENT: Except as otherwise provided herein, NDS hereby
disclaims all warranties or representations, and Optionee acknowledges and
accepts such disclaimer, that use of the PRODUCT does not conflict or otherwise
infringe in any way with the trademarks, trade names, copyright, or other
proprietary rights, nondisclosure or other rights or interest of any other
person or entity. The parties acknowledge that confirmation of the
non-infringing nature or status of the PRODUCT shall be the obligation of
LICENSEE and LICENSEE assumes all risk associated with the possibility of the
infringement of the trademarks, trade names, copyright, or other proprietary
rights or other interest of any other person or entity, the parties agree that
LICENSEE'S sole and exclusive remedy shall be to change the PRODUCT to an
non-infringing nature and proceed according to the terms of this Agreement, or,
if
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the infringing aspect cannot be cured, to cancel and rescind this Agreement
between the parties without further liability to NDS. In no event shall NDS be
liable for any damages arising from the causes described in this Paragraph 9.1
and LICENSEE expressly agrees to indemnify, defend and hold NDS harmless from
and waives any claims for such damages.
10.3. COMPLIANCE WITH LAW: Except as otherwise
provided herein, NDS hereby disclaims all warranties or
representations, and Optionee acknowledges and accepts such disclaimer, that the
PRODUCT has been and presently is in compliance with all applicable federal
state or local laws, rules and regulations. the parties acknowledge that
confirmation of the legal nature or status of the PRODUCT, as gambling or
otherwise, shall be the obligation of Optionee. In the event the PRODUCT is
considered illegal, the parties agree that the sole and exclusive remedy shall
be to terminate the Agreement between the parties according to the terms
thereof. In no event shall NDS be liable for any damages arising from the causes
described in this Paragraph 9.2 and Optionee expressly agrees to indemnify,
defend and hold NDS harmless from and waives any claims for any such damages.
10.4. DEVELOPMENT RESTRICTION: The parties agree, on behalf of
themselves, their affiliated companies, officers, directors, consultants or
employees, successors and assigns, not to develop products or services
competitive to the PRODUCT, directly or indirectly, either for itself or any
third party during the term of this Agreement or any extension, renewal or
modification hereof.
10.5. CORPORATE AUTHORITY: The parties are corporations duly
organized, validly existing, and in good standing under the laws of the state of
their incorporation and have full corporate power and authority to enter into
this Agreement and to carry out their respective obligations hereunder. This
Agreement constitutes a valid and binding obligation of the parties and
performance hereunder will not violate any provision of the parties' respective
Articles of Incorporation, Bylaws, or other agreements or commitments.
10.6. PRODUCT STATUS: LICENSEE acknowledges and agrees that: (1) the
PRODUCT is not fully operational nor tested and the possibility exists that the
PRODUCT may not perform entirely as designed; (2) the likelihood or probability
of the success of the PRODUCT is unknown because of the competitive and volatile
nature of the Internet; (3) LICENSEE is familiar with product development and
marketing and has informed itself to its satisfaction of the risks associated
with the PRODUCT; (4) LICENSEE is not relying on any representations by NDS as
to the probability of success of the PRODUCT and expressly accepts and assumes
all such risks and releases and holds NDS harmless from all damages that may be
incurred as a result thereof.
10.7. TEMPORARY INTERRUPTION: LICENSEE acknowledges that
temporary interruption of the website may occur whether caused by
hardware, software, or environmental anomalies. In such event, NDS
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agrees to provide such technical support as needed to address any temporary
interruption as soon as possible after notification by LICENSEE pursuant to the
provisions hereof. In no event shall NDS be liable for any claims or damages
that may result from any interruption of the website, regardless of cause, and
LICENSEE hereby releases NDS and waives any and all claims against NDS therefor.
11. TERMINATION/CANCELLATION
11.1. NDS may terminate/cancel this Agreement and any license
granted hereunder if:
11.1.1. LICENSEE is in default of any
material provision hereof and such default is not cured within 30
days after NDS gives LICENSEE written notice thereof; or,
11.1.2. LICENSEE becomes insolvent or seeks
protection, voluntarily or involuntarily, under any bankruptcy law.
11.1.3. LICENSEE is in breach of any of the
terms and conditions of the Option greement executed between NDS and
IPONG, which Agreement is incorporated herein by reference as though
set forth fully.
11.2. Should this Agreement be so terminated, NDS shall be paid for
all costs incurred to date of termination for technical services, including any
reasonable cancellation charges and any reasonable costs incurred in terminating
any service or work under any work request, plus a fee of 10% of the total of
such costs, and a proportional amount of other fees payable hereunder.
11.3. In the event of any termination/cancellation hereof or any
license granted hereunder, LICENSEE shall comply with all provisions of this
Agreement regarding termination. IN NO EVENT WILL THE LIABILITY OF NDS IN
CONNECTION WITH THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT EXCEED THE
AMOUNTS ACTUALLY PAID TO NDS UNDER THIS AGREEMENT. The limitation is an
exclusive remedy and applies to all causes of action in the aggregate, including
without limitation, breach of contract, breach of warranty, negligence, strict
liability, or any other cause, excluding the misrepresentation or intentional
conduct of NDS.
12. WARRANTY
12.1. WARRANTY FOR TECHNICAL SUPPORT SERVICES: NDS guarantees that the
technical support services provided by NDS shall be performed in accordance with
sound practices. Following completion of any service pursuant to any work
request, if the work does not so conform or the end result is not successful,
and the dame is reported to NDS by LICENSEE in writing within 15 days after the
nonconformity, if possible. If, in NDS's opinion, the work request cannot be
accomplished using reasonable commercial efforts, then no further attempts to
cure shall be required and LICENSEE waives and releases NDS from any and all
claims for reimbursement or damages incurred thereby. If the nonconformity is
caused by hardware
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problems, NDS shall replace any hardware necessary to correct the problem, at
LICENSEE's expense.
12.2. LIMITATION OF REMEDIES: ALL WARRANTIES OR
GUARANTEES MADE BY NDS IN CONNECTION WITH ITS SERVICES ARE LIMITED
TO THOSE SET FORTH IN THIS ARTICLE 11. NDS MAKES NO OTHER WARRANTIES
OR GUARANTEES, EXPRESS OR IMPLIED, WHETHER FOR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
12.3. CONSEQUENTIAL DAMAGES: Notwithstanding
anything to the contrary stated herein, in no case shall NDS be
liable for any indirect, special, contingent or consequential or
other indirect damages including, without limitation, damages for
loss of profit, revenue or product, operating costs and downtime
arising out of or related to this Agreement or the performance or
breach thereof, even if NDS has been advised of the possibility
thereof, and however the same may be caused, including, without
limitation, the fault or concurrent or sole negligence of NDS, its
subcontractors or vendors.
12.4. EXCLUSIVE REMEDIES: For the breach of any
warranty or guarantee or any breach of any term or provision hereof
by NDS, LICENSEE shall be restricted to the remedies expressly set
forth in this Agreement and specifically this Article II as LICENSEE'S sole and
exclusive remedies. LICENSEE hereby waives any and all other rights or remedies
it may have, whether at law or in equity, against NDS, regardless of cause,
including the breach of contract, the sole or concurrent negligence of NDS, but
excluding the wilful misconduct of NDS.
13. INSURANCE AND LIABILITY
13.1. COMMITMENT OF INSURANCE: Commencing with
acquisition of rental space for establishment of the website and
continuing until termination of this Agreement, both parties shall
maintain standard insurance policies as follows:
13.1.1. Worker's Compensation insurance
covering injury to or occupational disease or death of all employees
engaged in providing services in accordance with the statutory
requirements of the state or states in which the services are to be
performed, including Employers' Liability
Insurance with a limit of liability of $500,000.00.
13.1.2. Comprehensive Liability Insurance
(including bodily and personal injury, property damage, owned, non-owned, leased
or hired automobiles, contractual liability, completed operations liability, and
contractor's protective liability for loss
or damage to property and injury to or death
of third parties. Such coverage shall provide a limit of
$1,000,000.00 combined single limit bodily injury and property damage for each
occurrence subject to an aggregate limit of $1,000,000.00.
13.2. CERTIFICATES AND POLICY RENEWALS: The
foregoing insurance shall be maintained with carriers satisfactory
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to the other party and the terms of coverage shall be evidenced by certificates
to be furnished to each party. Such certificates shall provide that ten (10)
days' written notice shall be given to the other party prior to the cancellation
of any policy.
13.3. INDEMNITY: Anything in this Agreement to the contrary
notwithstanding, LICENSEE hereby agrees to defend, indemnify and hold harmless
NDS, its subsidiaries, subcontractors and vendors, and their directors,
officers, employees, agents and representatives, from and against any and all
claims, losses, fines, penalties, expense (including attorney's fees), or
liabilities on account of injury to or death of persons (including the employees
of LICENSEE, NDS, and its subcontractors and vendors), damage to or loss of
property arising by any reason or by failure to comply with any law or
regulation or on account of actual or alleged contamination, pollution, public
or private nuisance, exposure to and/or hazardous substances at LICENSEE'S
operations whether or not related to NDS'S, its subcontractors' or vendors'
performance of the services under this Agreement, and irrespective of whether or
not due to NDS'S, its subcontractors or vendors' breach of contract, tort
(including sole or concurrent negligence), strict liability or otherwise.
Subrogation against NDS, its subcontractors or vendors under any and all of
LICENSEE'S insurance for such losses or claims shall be, and is hereby, waived
and LICENSEE represents it has the authority to so waive such claims. The
indemnity provisions of this Agreement shall apply to any such subrogation
claim.
13.4. INFRINGEMENT: NDS agrees to indemnify, defend and hold harmless
LICENSEE for any and all damages, costs and attorney fees incurred arising out
of any adverse claim or action commenced against or including LICENSEE regarding
any claim of infringement of copyright, trademark, trade name, or other
proprietary interest pertaining to the PRODUCT.
13.5. LICENSEE'S PROPERTY: As between NDS and
LICENSEE, LICENSEE assumes responsibility for and hereby releases NDS
from all loss of or damage to or caused by LICENSEE'S property,
however such loss or damage shall occur, including the fault, breach
of contract, tort (including the concurrent or sole and exclusive
negligence), strict liability or otherwise of NDS.
14. MISCELLANEOUS.
14.1 NOTICE: Notices to or for the respective parties shall be given
in writing and delivered in person or mailed by certified or registered mail,
addressed to the respective party at the address as set below, or at such other
address as either party may elect to provide in advance in writing, to the other
party:
NDS SOFTWARE IPONG
▇▇▇▇ ▇▇▇▇▇▇▇,CEO ▇▇▇▇▇ ▇. ▇▇▇▇▇, PRESIDENT
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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14.2. CHOICE OF LAW: This Agreement shall be construed under the laws
of the State Of Nevada and any action brought by the parties hereunder shall be
brought in the Ninth Judicial District Court located in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ County,
Nevada. The parties agree that this document is executed and shall be performed
in ▇▇▇▇▇▇▇ County, Nevada.
14.3. AMENDMENTS: This Agreement may be altered,
amended, restated, or modified in writing signed by the parties.
14.4. WAIVER: Any failure on the part of either
party hereto to comply with any of their obligations, agreements or
conditions hereunder may be waived in writing by the party to whom
such compliance is owed.
14.5. BROKERS: Each of the parties represents to the other parties
that no broker or finder has acted for them in connection with this Agreement
and agrees to indemnify and hold harmless the other parties against any fee,
loss or expense arising out of claims by brokers or finders employed or alleged
to have been employed by such party.
14.6. ENTIRE AGREEMENT: This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto and contains
all of the covenants and agreements between the parties with the respect to this
matter. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise not contained in this
Agreement shall be binding. Any modification of this Agreement will be effective
only if it is in writing, signed by the party to be charged specifically
referencing this Agreement.
14.7. INTERPRETATION: Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid and effective under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
14.8. ASSIGNMENT: Except as expressly provided for herein, this
Agreement shall not be assignable by either party without the prior consent of
the other party hereto. No assignment of this Agreement shall relieve the
assignor until this Agreement shall have been assumed by the assignee. When duly
assigned in accordance with the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the assignee. Additionally, NDS may
subcontractor is disclosed to and approved by LICENSEE prior to the provision of
any such services under this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
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NDS SOFTWARE, INC., IPONG INTERNATIONAL, INC.,
a Nevada Corporation a Nevada Corporation
BY: BY:
▇▇▇▇ ▇▇▇▇▇▇▇, Chairman/CEO ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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