Oberon Media, INC. SOFTWARE PRODUCT LICENSING AND SOFTWARE GAME DISTRIBUTION AND PROMOTION AGREEMENT
CERTAIN
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.
Oberon
Media, INC.
SOFTWARE
PRODUCT LICENSING AND SOFTWARE GAME DISTRIBUTION AND
PROMOTION
AGREEMENT
This
Software Product Licensing, and Game Software Distribution and Promotion
Agreement (this “Agreement”) is effective as of, Jan 7th 2004 (the “Effective
Date”), by and between Oberon Media, Inc., a Delaware corporation further
described below (“Licensor”), and IncrediMail, Ltd., a Software corporation,
located at Tel Aviv Israel (“Partner”), and describes the terms and conditions
relating to Partner’s use, distribution and promotion of Licensor’s game
software and other software products.
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Partner:
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Name:
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Address:
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Country:
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Israel
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Telephone:
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Main
Contact:
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FAX:
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Email:
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URL:
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NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. DEFINITIONS
The
following capitalized terms will have the meanings set forth below:
“Game
Center Software”
means
Licensor’s proprietary Software product, including all client side components
presented via an Internet browser, server side components installed on a
server
computer, digital right management components and all other software modules
used in connection with enabling distribution and promotion of various Software
Games.
“Game
Page”
means
the destination web page that is hosted by Licensor sites and branded with
Partner Marks, from where a User may link to, access, play and purchase Software
Game Versions that are hosted by Licensor.
“Partner
Sites”
means
the Internet web site located at Partner’s URL listed above, including all
related web pages, owned or operated by Licensor.
“Licensor
Sites”
means
the Internet web sites owned and operated by Licensor from where Licensor
and/or
Licensor’s third party Developers promote the Programs, including informational
web pages pertaining to the Programs.
“User”
means
the entity or person to whom the Programs are distributed for personal
use.
“Program(s)”
means
the object code, including all Updates thereto, of each of Licensor’s software
game program(s) distributed and sold via the Game Center Software Product,
together with all Licensor documentation and related files. As used herein,
“Program(s)” includes Demo Versions, Full Versions, and Web
Versions.
“Web
Version(s)”
means a
version of the Programs with a feature set for play when a User is connected
to
the Internet.
“Demo
Version(s)”
means a
version of the Program with a feature set that limits the amount of play
time or
number of plays by a User of the Full Version.
“Full
Versions(s)”
means a
version of the Programs that are enabled with full features and functionality
pursuant to Licensor’s documentation and specifications.
“Licensor
Marks”
means
the trademarks, service marks, logos and trade names of Licensor, Licensor
Game
Center Software Product, Licensor Programs, and other affiliated developers’
Programs published and distributed by Licensor.
“Licensor
Material”
means
the marketing material pertaining to Licensor and the Programs provided by
Licensor to Partner.
“Net
License Fees”
means
the total gross fees received by Licensor for the sale of any of the Programs,
less any amounts paid for taxes, refunds, returns, bandwidth costs, royalties
paid to third party developers, and contested credit transactions.
“Bundle
Net License Fees”
means
the percentage of the total gross fees received by Partner for the sale of
a
bundle of software and/or services that contains at least one Full Version,
which is determined by dividing the total retail price of the Full Version
by
the total retail price of all of the components of the bundle if sold
separately, less any amounts paid for taxes, refunds, returns, bandwidth
costs,
royalties paid to developers, and contested credit transactions.
“Confidential
Information”
means
the confidential or proprietary technical or business information of a party,
including without limitation: (a) proposals or research related to possible
new
products or services; (b) financial statements and other financial information;
(c) reporting information, (d) the material terms of this Agreement and the
relationship between the parties; and (e) launch dates; provided, however,
that
all of the information will be considered confidential only if it is
conspicuously designated as “Confidential,” or if provided orally, identified at
the time of disclosure as confidential.
“General
Information”
means
all information that is not Personally Identifiable Information, which is
tracked in connection with a User’s use of the Programs. Examples of “General
Information” include, without limitation, statistical usage information, browser
and video settings of a User’s computers, and the language of the User’s
computer systems.
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“Internet
Protocol”
means
any protocol used to route data on the Internet or on any portion of the
Internet, including all versions currently in existence or developed or
implemented in the future.
“Personally
Identifiable Information”
means
any information collected from Users that could be used to identify the identity
of such User including, without limitation, name, email, address, and payment
information.
“Territory”
territory defined as world wide.
“Licensor
Information”
means
the information and metadata to be incorporated into the Programs by Licensor
prior to delivery, as specified by Licensor from time to time.
“Updates”
means:
(a) subsequent releases of the Programs that (i) add new features,
functionality, and/or improved performance, (ii) operate on new or other
databases, operating systems, or client or server platforms, or (iii) add
new
foreign language capabilities; (b) bug or error fixes, patches, workaround
and
maintenance releases; (c) new point releases, including those denoted by
a
change to the right of the first decimal (e.g., v3.0 to 3.1), and (d) new
major
version releases, regardless of the version name or number, but including
those
denoted by (i) a change to the left of the first decimal point (e.g., v5.0
to
6.0) and/or (ii) the addition of a date designation or a change in an existing
case designation (e.g., v2001 to 2002).
“User
Data”
means,
collectively, Personally Identifiable Information and General
Information.
2. LICENSE
GRANT
2.1 License
to Use Game Center Storage.
Subject
to the terms and conditions of this Agreement, licensor hereby grants to
Partner
a nonexclusive, nontransferable single license to use the Game Center Software
in the Territory as a stand-alone product, solely in object code format,
for use
by End-Users for the purpose of promoting and selling of various
Programs.
The
Game
Center Software shall be licensed to provide Partner’s Internet users with
access and/or links to the Programs.
2.1.1 The
Game
Center Software shall be private-labeled and branded to carry Partner’s page
look.
2.1.2 The
Game
Center Software shall be linked to Partner Site via a URL at
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2.1.3 Licensor
shall host, maintain and manage the Game Center Software on its servers and
will
provide Programs based on user demographic and consumer needs.
2.1.4 Licensor
shall be the exclusive provider of content and Programs distributed via the
Game
Center Software. Licensor may from time to time at its discretion add, update,
remove and replace programs offered via the Game Center software.
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Partner
shall not have the right to assign to any third parties the rights to Use
the
Game Center Software. Partner shall not have the right to use the Game Center
Software outside of the Territory prior written consent from Licensor. Partner
will have the right to veto distribution of any games from its channel by
notification to Licensor.
2.2 License
to Distribute.
Licensor hereby grants to Partner a nonexclusive, worldwide right and license
to, distribute and market to its users the Full Versions: (a) via the Game
Center Software as the sole vehicle for selling Licensor’s Programs (b) through
electronic distribution via Internet Protocol; and (c) any or all Programs,
Bundled Programs or services offered by Licensor from time to time, whether
electronically via Internet Protocol or through tangible media such as CD-ROMs,
DVDs, diskettes, or hard disc drives. Additionally, Partner may distribute
the
Demo Versions through electronic distribution via the Internet.
2.3 Web
Versions.
In the
event that Licensor makes a Web Version available for some programs, Licensor
hereby grants to Partner a non-exclusive, worldwide right and license to
market
and promote the Web Version via the Game Center Software, and to link to
the Web
Version from the Game Pages pursuant to the terms and conditions of this
Agreement.
2.4 Use
of Licensor Marks and Licensor Material.
Licensor hereby grants to Partner the right to use the names, trademarks,
trade
names, drawings, logos and symbols associated with Licensor and/or the Programs
to market, identify and distribute the Programs in the manner contemplated
herein.
3. PARTNER
RIGHTS AND OBLIGATIONS
3.1 Promotion
of Game Center.
Partner
will make its best efforts to promote the Game Center and drive traffic to
the
site. Partner may promote the offering via online and offline advertisement
to
its users.
3.2 Embedding
of Game Center Software.
Partner
shall create a link between Partner Sites’ and the Game Center Software served
of Licensor’s Site.
3.3 Advertising
Rights.
Partner
shall have the right to advertise on the free space surrounding the Game
Center
Software Game Pages, in accordance with custom advertising policies on Partner’s
site.
3.4 Technical
Support and Program Updates.
Throughout the Term, Licensor will provide Partner with: (a) reasonable
technical support as Partner may require from time to time; (b) all reasonable
assistance necessary for Partner to perform its obligations hereunder; and
(c)
Updates as soon as they are available. Partner will provide technical support
to
Users in accordance with Partner’s published policies.
4. LICENSOR’S
RIGHTS AND OBLIGATIONS
4.1 Program
Listings within the Game Center.
Licensor will, at its sole editorial discretion, advertise or list the Programs
on the Partner Sites. Licensor may refuse, suspend, or cease advertising,
distributing or licensing any Programs if Licensor determines, in its sole
discretion, that such action is commercially appropriate. Licensor will notify
Partner within thirty (30) business days of any permanent suspension or
cessation of advertising, distribution or licensing of any Programs but in
no
event will Licensor be liable to Partner for any damages of any nature arising
from refusing, suspending or ceasing advertising or listing of any Program
in
the Partner Sites. Partner will have the right to veto distribution of any
Programs on the Partner Sites by notification to Licensor.
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4.2 Title.
Licensor and its affiliated developers will retain all title and ownership
in
the Programs, and nothing in this Agreement will be construed to affect such
Licensor rights. Licensor will be solely responsible for the content, quality
and performance of the Programs and for any warranty, support, maintenance
or
other obligations related to the Programs. Partner acknowledges that the
Licensor Marks and Licensor Material are owned solely by Licensor and except
as
expressly provided above; Partner does not hereby acquire any ownership or
other
rights in the Licensor Marks and Licensor Material. Partner will not remove,
alter or add to any Licensor Marks, copyright notices, or other proprietary
rights notices from the Programs without Licensor’s express
consent.
4.3 Relationships
with Third Party Developers.
Licensor will have the sole control and responsibility for maintaining the
relationships with third party developers. Partner shall refer any developer
inquiry regarding possible publishing and/or distribution inquiry to
Licensor.
4.4 User
Support.
Licensor and its affiliate developers will provide all Users with a
substantially similar level of online support for the Programs as offered
by
Licensor to other individuals who have access to the Programs. Licensor will,
at
a minimum, provide email User support and will use commercially reasonable
efforts to respond to User emails within two (2) business day during Licensor’s
normal business hours.
5. PAYMENT
TERMS
5.1 Net
License Fee for Nonbundled Sales.
For
nonbundled sales of the Full Versions, Licensor will pay to Partner a fee
of
*****1 percent (*****%1) of Net License Fees actually
received by Licensor for the Programs.
5.2 Net
License Fee for Bundled Sales.
For
sales of the Full Version included as part of a bundle, Licensor will pay
to
Partner a fee of *****1
percent
(*****%1)
of the
Bundle Net License Fee actually received by Licensor.
5.3 Payment.
Licensor will pay to Partner the percentage of Net License Fees and Bundle
Net
License Fees stated in Section 5.2, 5.3 and 5.4 above. Payments will be made
to
Partner within forty-five (20) days of the end of each month in which Net
License Fees and/or Bundle Net License Fees are collected by Licensor. If
the
amount payable to Licensor is less than one thousand dollars ($1,000) for
any
one month, Licensor may, at its sole discretion and upon notification to
Partner, elect to pay Partner on a quarterly basis for the remainder of the
Term, payments of which will be made within forty-five (45) days of the end
of
the quarter. All payment made hereunder will be made by check and in U.S.
Dollars. Licensor will provide Partner with a report of Full Version sales
each
month (or quarter if applicable) Licensor will not owe Partner any fees for
Demo
Versions or Web Versions.
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REPRESENTS MATERIAL THAT HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE
406
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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5.4 Taxes.
With
respect to the Net License Fees and Bundle Net License Fees, Licensor will
collect and remit to the appropriate taxing authority, or require the purchaser
to pay, all sales, use or similar taxes applicable. Except for the foregoing,
each party is solely and separately responsible for its own taxes, user fees,
or
similar levies. Each party agrees to assist the other party in claiming
exemption from any deductions or withholdings under any double taxation or
similar agreement or treaty from time to time in force with respect to the
royalties payable hereunder.
6. TERM
6.1 Term.
The
Agreement will commence on the Effective Date and will continue until terminated
in accordance with the terms hereof.
6.2 Termination.
Either
party may terminate this Agreement *****1 ,
provided that such terminating party gives the other party *****1
prior
written notice
6.3 Effect
of Termination.
Upon
termination of the Agreement, the licenses granted to Partner herein will
terminate. All User license agreements relating to the Programs will continue
in
perpetuity after the termination or expiration of this Agreement for whatever
reason. Sections 4.2 Title, 5 Payment, 6.3 Effect of Termination, 7 Warranties,
Liabilities and Indemnification and 8 General Provisions - will survive the
termination of this Agreement for any reason.
7. WARRANTIES,
LIABILITIES AND INDEMNIFICATION
7.1 Licensor
Warranties.
Licensor hereby represents and warrants to Partner that: (a) it is authorized
to
enter into this Agreement; (b) it has the rights and interests in the Programs
to distribute and has the rights to grant the rights granted to Partner
herein.
7.2 Partner
Warranties.
Partner
hereby represents and warrants to Licensor that: (a) it is authorized to
enter
into this Agreement; (b) it is the exclusive owner of all rights and interests
in the Partner’s Sites.
7.3 No
Other Warranties. UNLESS
SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPIED CONDITIONS, REPRESENTATIONS
AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR
A PARTICULAR PURPOSE, ARE DISCLAIMED, EXCEPT TO THE EXTENT SUCH DISCLAIMERS
ARE
HELD TO BE LEGALLY INVALID.
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REPRESENTS MATERIAL THAT HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT
TO
RULE
406
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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7.4 Limitation
of Liability.
EXCEPT
FOR LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.5 BELOW,
NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, LOST DATA OR ANY FORM
OF
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENCIAL OR PUNITIVE DAMAGES ARISING
OUT OF
OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY UNDER THIS AGREEMENT
EXCEED THE AMOUNTS ACTUALLY PAID TO PARTNER BY LICENSOR HEREUNDER DURING
THE
PREVIOUS SIX (6) MONTH PERIOD.
8. GENERAL
PROVISIONS
8.1 Compliance
With Laws.
Both
parties will comply with all material aspects of the laws and regulations
applicable to its activities under this Agreement. Without limiting the
foregoing, both parties will: (a) comply with all United States Department
of
Commerce and other United States export controls with respect to the subject
matter hereof; and (b) not knowingly produce or distribute any software,
products, or technical data in any country where such production or distribution
would be unlawful.
8.2 Notices
and Contact Information.
All
notices and demands under this Agreement will be in writing and will be
delivered by personal service, express courier, or United States mail to
the
following addresses:
If
to
Licensor:
Oberon
Media, Inc.
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Attention:
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If
to
Partner:
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Attention:
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Either
party may change their address set forth above by providing written notice
to
the other party. Notice will be effective on receipt
8.3 Confidentiality.
Except
as expressly and unambiguously allowed herein, each party will hold in
confidence and not use or disclose any Confidential Information and will
similarly bind its employees and contractors in writing. The receiving party
will not be obligated under this Section 8.3 with respect to information
the
receiving party can document. (a) is or has become readily publicly available
with restriction through no fault of the receiving party or its employees
or
contractors; (b) was received without restriction from a third party lawfully
in
possession of such information and lawfully empowered to disclose such
information; (c) was rightfully in the possession of the receiving party
without
restriction prior to its disclosure by the disclosing party; (d) is
independently developed by the receiving party by employees without access
to
the other party’s similar Confidential Information; or (e) is required by law or
order of a court, administrative agency or other governmental body to be
disclosed by the receiving party. The parties’ obligations with respect to
Confidential Information will continue for the shorter of two (2) years from
the
date of termination of this Agreement or until one of the above enumerated
conditions becomes applicable. Each party acknowledges that its breach of
this
Section 8.3 will cause irreparable injury to the other for which monetary
damages are not an adequate remedy. Accordingly, either party may be entitled
to
seek injunctions and other equitable remedies in the event of such breach
by the
other.
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8.4 Non-Assignment.
Partner
may not assign, sublicense, transfer, encumber or otherwise dispose of this
Agreement without the prior written approval of Licensor. Any attempted
assignment, sublicense, transfer, encumbrance or other disposal of this
Agreement by Licensor in violation of this provision will constitute a material
default and breach of this Agreement. Except as otherwise provided, this
Agreement will be binding upon and inure to the benefit of the parties’
successors and lawful assigns.
8.5 Press
Releases and Public Statements.
Neither
party will issue any press releases or make public statements relating to
this
Agreement or the relationship between the parties without the other party’s
review of and written consent to such press release or public
statement.
8.6 Force
Majeure.
No
party shall be deemed in default hereunder for any cessation, interruption
or
delay in the performance of its obligations due to causes beyond its reasonable
control, including but not limited to: earthquake, flood, or other natural
disaster, act of God, labor controversy, civil disturbance, war (whether
or not
officially declared) or the inability to obtain sufficient supplies,
transportation or other essential commodity or service required in the conduct
of its business, or any change in or the adoption of any law, regulation,
judgment or decree (each a “Force Majeure Event”). Each party shall have the
right to terminate this Agreement immediately upon written notice if any
Force
Majeure Event of another party continues for more than ten (10)
days.
8.7 Miscellaneous.
This
Agreement together with Exhibit A constitutes the final agreement between
the
parties with regard to the subject matter herein and supersedes and cancels
all
prior negotiations, understandings, correspondence and agreements, oral and
written, express or implied between the parties with regard to the subject
matter herein. No waiver, amendment or modification of any provision of this
Agreement will be effective unless it is in a document that expressly refers
to
this Agreement and is signed by both parties. Failure or delay by either
party
in exercising any rights or remedy under this Agreement will not operate
as a
waiver of any such right or remedy. The parties are independent contractors.
Neither party will be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither will have any right,
power of authority to create any obligation or responsibility on behalf of
the
other. If for any reason a court of competent jurisdiction finds any provision
or portion of this Agreement to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect
the
intent of the parties, and the remainder of this Agreement will continue
in full
force and effect. This Agreement will be governed by the laws of Tel Aviv,
Israel, excluding the Convention on Contracts for the International Sale
of
Goods, and without regard to conflict of laws provisions.
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IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
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LICENSOR:
By:
/s/
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Name:▇▇▇
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Title:
Chairman
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PARTNER:
By:
/s/
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Name:▇▇▇▇▇
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Title:
CEO
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