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Exhibit 10.12
AGREEMENT FOR PROVISION OF INTERNET AUDIO SERVICES
This Agreement for Provision of Internet Audio Services ("Agreement") is
executed this 21 day of June, 1996 (the "Effective Date"), by and between DIDAX
ON-LINE, L.C. ("DIDAX"), a Virginia limited liability company established as a
religious organization, having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and NETRADIO Corporation, a Nevada corporation
("NETRADIO"), having a place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. DIDAX and NETRADIO may be referred to
individually as a "Party" and collectively as "Parties."
1. RECITALS
1.1. WHEREAS, NETRADIO develops World Wide Web-based audio transmitting
networks, a service that it desires to offer DIDAX; and
1.2. WHEREAS, DIDAX desires to obtain the services of NETRADIO; and
1.3. WHEREAS, both Parties envision this Agreement as the first phase
(Phase I) in a mutually beneficial relationship that they intend to more
definitively embody in a subsequent written agreement addressing more fully
their partnership with particular regard to the "BroadVision One-to- One(TM)"
technology and the "Net Companion(TM)" technology (Phase II); and
1.4. WHEREAS, both Parties desire to execute this Agreement on the terms
and conditions set forth herein; and
1.5. NOW THEREFORE, in consideration of the mutual promises contained
herein, the Parties hereby agree as follows:
2. DEFINITIONS
2.1. "CHRISTIAN RADIO FORMAT" shall mean the transmission via the Internet
of Christian audio content and/or audio content aimed at or oriented towards
Christian individuals and organizations or those with or serving a Biblical
world view.
2.2. "CONFIDENTIAL INFORMATION" shall mean any information relating to or
disclosed in the course of this Agreement that is or should reasonably be
understood to be confidential or proprietary to the disclosing Party, including
but not limited to the material terms of this Agreement; technical processes
and formulas; source code; product designs; sales, cost and other financial
information; product and business plans; projections; and marketing data.
"Confidential Information" shall not include information (1) already lawfully
known to or independently developed by the receiving Party; (2) disclosed in
published materials; (3)generally known to the public; (4)lawfully obtained
from any third party (provided that such third party also lawfully obtained
such information); or (5)required to be disclosed by law.
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION
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2.3. "DIDAX(TM) WEB SITE(S)" shall mean the "home page(s)" and site(s) on
the World Wide Web that DIDAX will design, develop, and/or implement for its
own use and for use in aggregating Christian content and information, as well
as content of interest to individuals and organizations with or serving a
Biblical world view, located at the specific URL(s) identified in writing by
DIDAX to NETRADIO from time to time (currently "▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇").
2.4. "INTERNET" shall mean the wide area cooperative network of university,
corporate, government and private computer networks communicating through
Transmission Control Protocol/Internet Protocol ("TCP/IP") that is commonly
referred to as the Internet.
2.5. "NETRADIO AUDIO SOLUTION" shall mean the software, hardware, and other
technology that permits the transmission and reception of real-time and/or
on-demand audio content via the Internet that NETRADIO currently employs in the
transmission of its own audio content via the Internet. (As of the Effective
Date, the NETRADIO Audio Solution is comprised of the REALAUDIO(R) Software and
related hardware and technology. The Parties mutually understand that NETRADIO
may change its audio streaming technology from the REALAUDIO(R) Software and
related hardware and technology to another technology solution at its own
discretion.)
2.6. "NETRADIO(R) WEB SITE(S)" shall mean the "home page(s)" and site(s) on
the World Wide Web where NETRADIO makes available its audio transmissions,
currently using, but not necessarily limited to, the REALAUDIO(R) Software,
located at the specific URL(s) identified in writing by NETRADIO to DIDAX from
time to time (currently "▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇").
2.7. "REALAUDIO(R) SOFTWARE" shall mean the most current commercially
available version of the computer-executable software developed and distributed
by Progressive Networks that permits the transmission and reception of
real-time and on-demand audio content via the Internet.
2.8. "REASONABLE HARD COSTS" shall mean NETRADIO's actual costs of
providing products or services to DIDAX under this Agreement, composed of (1)
NETRADIO's reasonable internal labor costs for any labor actually performed
that is reasonably necessary to NETRADIO's performance of such services or
provision of such products, and (2) the invoiced amount that NETRADIO is
actually charged, including tax, shipping, and handling, for any hardware or
software that NETRADIO provides to DIDAX or the allocated portion thereof it
reasonably requires to perform its services to DIDAX under this Agreement..
2.9. "STATION" shall mean a distinct flow of audio content being
transmitted over the Internet that is distinguished by its unique content or
its unique source.
2.10. "STREAM" shall mean a point-to-point flow of data over the Internet or
a computer network.
2.11. "UNIVERSAL RESOURCE LOCATOR" OR "URL" shall mean the standard
addressing method that identifies information or resources on the Internet and
that is used when navigating the World Wide Web.
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2.12. "WORLD WIDE WEB" shall mean the Internet service bearing such name
that provides the users thereof with access to selected information databases
and to selected services on the Internet through the use of Universal Resource
Locators ("URLs").
3. NETRADIO SERVICES
In consideration for DIDAX' payment of fees and expenses in accordance with
Section4 below, NETRADIO shall perform the following services for DIDAX
(collectively referred to hereinafter as "Services"):
3.1. DIGI-LINK(S). NETRADIO shall obtain one or more Digi-link devices
from Digi-key Corporation (the "Digi-link"), sufficient to enable NETRADIO to
transmit all Stations and all DIDAX Audio Content (as defined herein) requested
by DIDAX under this Agreement. During the Term of this Agreement, NETRADIO
shall use the Digi-link(s) to convert and transmit DIDAX Audio Content via the
Internet as directed by DIDAX. NETRADIO shall have all right, title, and
ownership in and to such Digi-link(s).
3.1.1. TERMINATION BY DIDAX DURING EVALUATION PERIOD. In the event
that DIDAX terminates this Agreement for breach by NETRADIO pursuant
to Section 8.2 below during the first sixty (60) days after the date
on which a particular Digi-link becomes fully operational (the
"Evaluation Period"), NETRADIO shall return to DIDAX all Station
Set-up Fees for such Digi-link that DIDAX has paid pursuant to
Section4.1 below.
3.1.2. TERMINATION BY NETRADIO DURING EVALUATION PERIOD. In the
event that NETRADIO terminates this Agreement for breach by DIDAX
pursuant to Section 8.2 below during the Evaluation period for a
particular Digi-link, NETRADIO shall retain as liquidated damages all
Station Set-up Fees for such Digi-link that DIDAX has paid pursuant to
Section4.1 below.
3.1.3. TERMINATION FOLLOWING EVALUATION PERIOD. In the event that
either Party terminates this Agreement for breach pursuant to Section
8.2 below after the conclusion of the Evaluation Period for a
particular Digi-link, NETRADIO shall re-pay to DIDAX the fair market
value of such Digi-link as of the date of such termination, as
determined by a neutral third party appraiser familiar with such
technology and mutally selected by both Parties.
3.2. CONVERSION AND STORAGE OF DIDAX AUDIO CONTENT. NETRADIO shall receive
audio content provided in various formats by or on behalf of DIDAX
("Unprocessed DIDAX Audio Content"), and using the Digi-link(s) shall convert
such Unprocessed DIDAX Audio Content into forms in which it can be stored for
transmission via the Internet to listeners.
3.3. PROCESSING OF DIDAX AUDIO CONTENT. NETRADIO shall master, program,
and otherwise process such Unprocessed DIDAX Audio Content for transmission via
the Internet ("Processed DIDAX Audio Content"), without any alteration to such
Content except as expressly
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authorized by DIDAX. (The Processed DIDAX Audio Content and the Unprocessed
DIDAX Audio Content are referred to collectively hereinafter as "DIDAX Audio
Content.")
3.4. PROVISION OF ADDITIONAL AUDIO CONTENT. NETRADIO shall provide to
DIDAX additional audio content prepared by or on behalf of NETRADIO, such as
InfoBahn news, etc. ("Provided Audio Content"), and shall include such
additional audio content in the Processed DIDAX Audio Content for transmission
via the Internet. All Provided Audio Content to be included in DIDAX Audio
Content shall be mutually agreed to between the Parties from time to time, but
DIDAX shall retain final authority, discretion, and control over all DIDAX
Audio Content.
3.5. TRANSMISSION OF PROCESSED DIDAX AUDIO CONTENT. At all times during
the Term of this Agreement, NETRADIO shall transmit such Processed DIDAX Audio
Content via the Internet using the NETRADIO Audio Solution in such a manner as
to make such Processed DIDAX Audio Content available in as many concurrent data
streams and to as many concurrent Internet users as is possible using the
NETRADIO Audio Solution. (The Processed DIDAX Audio Content transmitted via
the Internet by NETRADIO using the NETRADIO Audio Solution is referred to
hereinafter as "DIDAX Audio Transmission.")
3.6. LIVE EVENT TRANSMISSIONS. From time to time, DIDAX may elect to
transmit a "live event" in which the Unprocessed DIDAX Audio Content will be
provided by DIDAX to NETRADIO on a "live" or "real-time" basis, and NETRADIO
will convert, process, and transmit such DIDAX Audio Content essentially
simultaneously with its receipt of the same (hereinafter "Live Event").
3.7. ARCHIVING. From time to time, DIDAX may request that NETRADIO record
and store DIDAX Audio Transmissions or Content originating from a Live Event
onto "real-time" audio servers ("Archiving").
3.8. PASS-THROUGH OF NETRADIO AUDIO SOLUTION TECHNOLOGY. During the Term
of this Agreement, NETRADIO shall provide to DIDAX all of the licensing and
technological advantages relating to the NETRADIO Audio Solution that are
available to and implemented by NETRADIO, including but not limited to those
advantages relating to the REALAUDIO(R) Software pursuant to NETRADIO's
agreement(s) with Progressive Networks at a cost to DIDAX not to exceed
NETRADIO's Reasonable Hard Costs of providing such advantages to DIDAX.
3.9. PASS-THROUGH OF BROADVISION ONE-TO-ONE(TM) TECHNOLOGY. During the
Term of this Agreement, NETRADIO shall provide to DIDAX all of the licensing
and technological advantages relating to the BroadVision One-to-One(TM)
technology that are currently available to and implemented by NETRADIO, on a
price-per-user basis to be negotiated and mutually agreed upon in writing by
the Parties. During the Term of this Agreement, NETRADIO shall also train
DIDAX personnel at the DIDAX headquarters in Chantilly, Virginia in the
implementation of the BroadVision One-to-One(TM) technology and shall provide
consulting services relating to the implementation of the BroadVision
One-to-One(TM) technology, at a cost to DIDAX not to exceed NETRADIO's
Reasonable Hard Costs of providing such training and consulting services to
DIDAX.
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3.10. PASS-THROUGH OF NET COMPANION(TM) TECHNOLOGY. During the Term of this
Agreement, NETRADIO shall provide to DIDAX all of the licensing and
technological advantages relating to the Net Companion that are currently
available to and implemented by NETRADIO at a cost to DIDAX not to exceed
NETRADIO's Reasonable Hard Costs of providing such advantages to DIDAX.
3.11. PASS-THROUGH OF OTHER NETRADIO TECHNOLOGY. During the Term of this
Agreement, NETRADIO shall provide to DIDAX all other licensing and
technological advantages relating to the transmission of audio content via the
Internet that are available to and implemented by NETRADIO at a cost to DIDAX
not to exceed NETRADIO's Reasonable Hard Costs of providing such advantages to
DIDAX.
3.12. DISTRIBUTION RIGHTS. During the Term of this Agreement, NETRADIO
grants to DIDAX a non-transferable right and license to use the NETRADIO Audio
Solution for the purpose of transmitting, via the Internet, Christian Radio
Format(s) and content of interest to individuals and organizations with or
serving a Biblical world view.
4. DIDAX OBLIGATIONS.
In consideration for NETRADIO's provision of Services to DIDAX under Section3
above, DIDAX shall pay to NETRADIO the following fees and expenses and shall
perform the following obligations, in accordance with the following terms and
conditions:
4.1. STATION SET-UP FEES.
4.1.1. INITIAL STATION SET-UP FEE. In consideration for NETRADIO's
setting up, within sixty (60) days of the Effective Date, the first
DIDAX' Station (including NETRADIO's purchase and set-up of a Digi-link
and related hardware and peripheral devices), DIDAX shall pay to NETRADIO
an Initial Station Set-up Fee, equal to NETRADIO's Reasonable Hard Costs
of setting up such a Station (including the acquisition and setting up of
one Digi-link and related hardware and software), in the amount of
thirty-one thousand dollars ($31,000), which DIDAX shall pay to NETRADIO
within seven (7) days of the Effective Date.
4.1.2. ADDITIONAL STATION(S) SET-UP FEE(S). For each additional
Station that DIDAX requests in writing that NETRADIO set up, DIDAX shall
pay to NETRADIO an Additional Station Set-up Fee equal to NETRADIO's
Reasonable Hard Costs of purchasing and setting up such Station, which
expenses shall be pre-approved by DIDAX in writing.
4.2. LIVE EVENT FEES. In the event that DIDAX elects to transmit a Live
Event under Section3.6 above, DIDAX shall pay NETRADIO a fee equal to
NETRADIO's Reasonable Hard Costs of transmitting such a Live Event (including
NETRADIO's reasonable labor charges for any labor necessary to transmission of
a Live Event at or below NETRADIO's general commercial rates). Any archiving
of Live Events by NETRADIO shall be performed without any additional fees
except for applicable Archiving Fees under Section4.3 below.
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4.3. ARCHIVING FEES. In the event that DIDAX requests under Section3.7 that
NETRADIO archive onto a real-time audio server DIDAX Audio Content originating
from a Live Event, DIDAX shall pay NETRADIO:
4.3.1. a one-time fee not to exceed NETRADIO's reasonable expenses
of setting up an audio server for such archiving purposes (the "One-time
Archiving Set-up Fee "), which expenses shall be pre-approved by DIDAX in
writing; and
4.3.2. NETRADIO's reasonable labor charges for its performance of
such archiving Services at a rate of $10.00 per person per hour (the
"Real-time Archiving Charges").
4.4. TRAVEL EXPENSES. DIDAX shall pay the ordinary and reasonable expenses
of travel incurred by NETRADIO staff (to include coach airfare, one hotel room
per person, three meals per day per person, transportation to and from
airports, and parking) incurred under this Agreement for all travel that is
previously requested and approved in writing by DIDAX.
4.5. SELECTION OF AUDIO CONTENT PROVIDER. In the event that DIDAX desires
to have certain audio content included in DIDAX Audio Transmissions, DIDAX may
enter into a separate agreement with a provider of such audio content ("Audio
Content Provider"). Audio Content Provider(s) shall be selected by DIDAX from
time to time in its sole discretion.
4.6. REVENUE SHARING. During the term of this Agreement, DIDAX may sell
audio advertisements to be included in DIDAX Audio Transmissions (hereinafter
"Audio Spots"). All Audio Spots shall be mutually acceptable to both Parties,
but DIDAX shall retain final authority, discretion, and control over all Audio
Spots. DIDAX shall pay to NETRADIO a share of DIDAX' net revenues collected
from sales of such Audio Spots (hereinafter "Audio Spot Revenues"), calculated
on the following percentage basis. For purposes of this calculation, "Accrued
Hard Costs" shall mean NETRADIO's initial and recurring hard costs to set up
and operate a particular Station for or on behalf of DIDAX, as such costs are
passed on to DIDAX in the form of flat and/or periodic fees pursuant to
Sections 4.1, 4.2, and4.3 above during the first six months that such Station
is operational.
============================================================================================================
AUDIO SPOT REVENUES FOR A STATION COMPARED TO PERCENTAGE OF AUDIO SPOT REVENUES FOR THAT STATION
ACCRUED HARD COSTS FOR THAT STATION TO BE PAID TO NETRADIO BY DIDAX
------------------------------------------------------------------------------------------------------------
Audio Spot Revenues equal to 0% to 50% of Accrued 20% of Audio Spot Revenues
Hard Costs
------------------------------------------------------------------------------------------------------------
Audio Spot Revenues equal to 50% to 75% of Accrued 30% of Audio Spot Revenues
Hard Costs
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Audio Spot Revenues equal to 75% to 100% of Accrued 40% of Audio Spot Revenues
Hard Costs
------------------------------------------------------------------------------------------------------------
Audio Spot Revenues equal to 101% or more of Accrued 50% of Audio Spot Revenues
Hard Costs
------------------------------------------------------------------------------------------------------------
In the event that DIDAX elects to include NETRADIO Provided Audio Content in
DIDAX Audio Content during any applicable billing cycle, DIDAX shall pay to
NETRADIO an additional five percent (5%) of Audio Spot Revenues that DIDAX has
collected during such billing cycle.
DIDAX shall pay NETRADIO its share of such Audio Spot Revenues within sixty
(60) days of the end of the billing cycle during which DIDAX has collected such
Audio Spot Revenues. Upon termination of this Agreement, DIDAX shall continue
to pay NETRADIO its share of Audio Spot Revenues in accordance with this
Sectionfor ninety (90) days after the date of such termination, after which all
revenue sharing obligations under this Agreement shall forever cease.
5. MUTUAL OBLIGATIONS
5.1. LICENSE TO USE TRADEMARK AND TRADE NAME. Any and all trademarks,
trade names, and/or service marks that NETRADIO uses in connection with its
services and products (including but not limited to "NETRADIO(TM)") are, and
shall remain, the exclusive property of NETRADIO. Any and all trademarks,
trade names, and/or service marks that DIDAX uses in connection with its
services and products (including but not limited to "DIDAX(TM)") are, and shall
remain, the exclusive property of DIDAX. This Agreement gives DIDAX and
NETRADIO no right therein except a limited license to reproduce (with proper
trademark notice and attribution) one another's trademarks, service marks, and
trade names as necessary for the sole purpose of allowing DIDAX and NETRADIO to
promote the Christian Radio Format(s) and other content transmitted under this
Agreement.
5.2. RECIPROCAL HYPERTEXT LINKS. DIDAX shall provide on the DIDAX(TM) Web
Site(s) a HyperText link to the DIDAX Audio Transmission(s) provided by
NETRADIO using the URL(s) specified in writing by NETRADIO to DIDAX from time
to time. This HyperText link shall be provided by using an aliasing mechanism
that identifies the host address to the user as a DIDAX URL, such as
"▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇", rather than as a NETRADIO URL. NETRADIO shall provide
on the NETRADIO(R) Web Site(s) a HyperText link to the DIDAX(TM) Web Site(s)
using the URL(s) specified in writing by DIDAX to NETRADIO from time to time.
These HyperText links shall use artwork and identifying information mutually
agreed upon by the Parties from time to time.
5.3. EXCLUSIVITY. During the Term of this Agreement, NETRADIO agrees that
it will provide Services relating to the transmission via the Internet of
Christian Radio Format(s) exclusively to DIDAX, and that it will not provide
such Services relating to Christian Radio Format(s) to any other person or
entity. During the Term of this Agreement, DIDAX agrees that it will use
NETRADIO as its exclusive provider of real-time and on-demand transmission of
Christian Radio Format(s) via the Internet.
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6. INTELLECTUAL PROPERTY
6.1. INTELLECTUAL PROPERTY RIGHTS. DIDAX acknowledges and agrees that the
NETRADIO Audio Solution licensed under this Agreement constitutes valuable
intellectual property of NETRADIO and/or its licensors (such as Progressive
Networks). Except as specifically set forth in this Agreement, no title to or
ownership of the NETRADIO Audio Solution and no rights or licenses to any
patents, copyrights, trademarks, or other intellectual property rights therein
are granted. DIDAX shall not sublicense, sell, transfer, rent, lease, assign,
or otherwise disclose the NETRADIO Audio Solution except as set forth in this
Agreement.
6.2. UNAUTHORIZED ACTIVITIES. DIDAX agrees that it will not reverse
engineer, decompile, disassemble, modify, translate, attempt to discover the
source code, or create a derivative work from the NETRADIO Audio Solution.
6.3. RIGHTS IN CONTENT. Title, ownership rights, and all intellectual
property rights in and to the DIDAX Audio Content provided to NETRADIO and/or
transmitted via the Internet are the property of DIDAX and/or the applicable
DIDAX content provider(s), and may be protected by applicable copyright or
other law. This Agreement does not give NETRADIO, its licensors (such as
Progressive Networks), and/or any customers, end-users, or other persons or
entities accessing such DIDAX Audio Content any rights or licenses to such
Content. NETRADIO agrees to take reasonable efforts to protect the rights of
DIDAX and its content providers in such DIDAX Audio Content.
7. WARRANTIES; DISCLAIMER; INDEMNIFICATION
7.1. NO CONFLICTING OBLIGATIONS. Each Party represents and warrants that
it is under no obligation or restriction, nor will it assume any such
obligation or restriction, that does or would in any way violate, interfere, or
conflict with the performance to be rendered under this Agreement or any rights
and licenses such Party may grant to the other Party under this Agreement.
Further, each Party represents and warrants that it shall comply with any
applicable governmental law, statute, ordinance, administrative order, rule, or
regulation relating to its duties under this Agreement and shall procure all
licenses and pay all fees, taxes, and other charges required by such regulatory
authority.
7.2. RIGHTS TO NETRADIO AUDIO SOLUTION. NETRADIO represents and warrants:
(1) that it has all necessary right, title, interest, and license in and to the
NETRADIO Audio Solution and full and sufficient right and authority to grant
the licenses and other rights granted to DIDAX under this Agreement; (2)that
the NETRADIO Audio Solution does not infringe any United States patent,
copyright, or any other intellectual property rights of any third party; and
(3)that the NETRADIO Audio Solution is not subject to any other limitations,
restrictions, and/or obligations than those expressly set forth in this
Agreement.
7.3. PERFORMANCE ACCORDING TO SPECIFICATIONS. NETRADIO shall use its best
efforts to ensure that the NETRADIO Audio Solution shall operate in conformity
with the most current specifications and performance criteria for such software
published or promulgated by
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NETRADIO and/or its licensors (such as Progressive Networks) from time to time.
If material defects are found in the NETRADIO Audio Solution by DIDAX or an
end-user, NETRADIO shall immediately replace the NETRADIO Audio Solution free
of charge.
7.4. AUDIO CONTENT. DIDAX represents and warrants that any original DIDAX
Audio Content provided by DIDAX to NETRADIO for transmission via the Internet
under this Agreement will be free and clear for such transmission and will not
infringe any United States copyright or other intellectual property right of
any third party. NETRADIO represents and warrants that any original content
provided by NETRADIO for inclusion in DIDAX Audio Transmissions will be free
and clear for such transmission and will not infringe any United States
copyright or other intellectual property right of any third party.
7.5. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
7.6. INDEMNIFICATION. Either Party will defend, indemnify, save, and hold
harmless the other Party and the officers, directors, agents, volunteers,
affiliates, distributors, franchisees, and employees of the other Party from
any and all third party claims, demands, liabilities, costs, or expenses,
including reasonable attorneys' fees ("Liabilities"), resulting from the
indemnifying Party's breach of any duty, representation, or warranty of this
Agreement, except where Liabilities result from the gross negligence or knowing
and willful misconduct of the other Party. This obligation of indemnity is
conditioned on the non-indemnifying Party giving prompt notice of any claim to
be indemnified, providing reasonable information and other assistance to the
indemnifying Party, and mitigating damages as feasible.
8. TERM AND TERMINATION
8.1. TERM. The Term of this Agreement shall be three (3) years, commencing
on the Effective Date (the "Initial Term"), unless sooner terminated by either
Party as permitted herein or superseded by a subsequent written agreement
(including but not limited to the "Phase II" agreement that the Parties
envision). At the conclusion of this three-year Initial Term, this Agreement
shall be automatically renewed for subsequent one (1) year Term(s) commencing
on each anniversary of the Effective Date (the "Anniversary Date"); provided,
however, that either Party may, by written notice to the other Party not less
than ninety (90) days prior to the Anniversary Date, terminate this Agreement
with or without cause.
8.2. TERMINATION FOR BREACH. Either Party may terminate this Agreement at
any time upon thirty (30) days written notice to the other Party specifying the
breach if the other Party (1)materially breaches this Agreement and (2)fails to
cure the specified breach within this thirty (30) day notice period.
Notwithstanding the preceding sentence or any other provision of this
Agreement, at any time during the Term of this Agreement, if NETRADIO changes
the
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NETRADIO Audio Solution (as defined in Section2.5 above) and/or its audio
streaming technology from the REALAUDIO(R) Software and related hardware and
technology to another technology solution, NETRADIO shall formally notify DIDAX
in writing of this change in accordance with Section9.8 below, and DIDAX shall
have the right, for sixty (60) days from its receipt of such written notice, to
terminate this Agreement in its sole discretion by transmitting written notice
of termination to NETRADIO.
8.3. TERMINATION AT WILL. Following the conclusion of the Initial Term,
either Party may terminate this Agreement at any time, with or without cause,
upon ninety (90) days prior written notice to the other Party.
8.4. DUTIES UPON TERMINATION. Upon termination of this Agreement for any
reason, the Parties agree to continue their cooperation to affect an orderly
termination of their relationship. Upon termination, DIDAX shall immediately
cease transmitting on the NETRADIO server, and all DIDAX' payment obligations
under Section4 above shall immediately cease.
8.5. SURVIVAL. The following sections of this Agreement shall survive the
termination of this Agreement for a period of ten (10) years: Sections6, 7.6,
8.4, 9.1, 9.5, 9.6, and 9.7.
9. GENERAL.
9.1. CONFIDENTIAL INFORMATION. NETRADIO and DIDAX each acknowledge that
Confidential Information may be disclosed to the other Party during the course
of this Agreement. Each Party agrees to fully respect and protect the other
Party's (1)Confidential Information; (2)trade secrets and intellectual property
rights; and (3)confidentiality and/or intellectual property obligations to
third parties. During the Term of this Agreement, and for a period of no less
than five (5) years following expiration or termination of this Agreement, each
Party further agrees to take reasonable measures, including at least the
measures the Party normally takes to protect its own Confidential Information,
to preserve the confidentiality of any Confidential Information received from
the other Party. Neither Party will convey any Confidential Information of the
other Party to any third party without the prior written consent of the
disclosing Party. Upon termination of this Agreement, unless superseded by a
subsequent written agreement, each Party, at the discretion of the disclosing
Party, shall return or destroy all documents, computer files, and other items
that contain or embody Confidential Information of the other Party, except as
expressly provided herein.
9.2. FORCE MAJEURE. Neither Party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or
interruption of service resulting directly or indirectly from acts of God;
civil or military authority; acts of public enemy; war; riots; civil
disturbances; insurrections; accidents; fire; explosions; earthquakes; floods;
the elements; strikes; labor disputes; shortages of essential parts, materials,
labor, or transportation; or any material cause beyond the reasonable control
of such Party.
9.3. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes
all previous proposals, both oral and written, negotiations, representations,
commitments, writings, and all other communications
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between the Parties. This Agreement may not be changed or modified except by
an instrument in writing signed and accepted by both Parties, and no change,
termination, or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the Parties against whom the same is
sought to be enforced.
9.4. INDEPENDENT CONTRACTORS. It is expressly agreed that NETRADIO and
DIDAX are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one Party be deemed the employees
of the other for any purpose. This Agreement shall not be construed as
authority for either Party to act for the other Party in any agency or other
capacity, or to make commitments of any kind for the account of or on behalf of
the other Party except to the extent and for the purposes expressly provided
for and set forth herein.
9.5. DISPUTE RESOLUTION. Both Parties desire to avoid dissipating
resources on wasteful litigation and therefore agree to resolve disputes
privately by good faith negotiation where at all possible. Any dispute that
the Parties cannot resolve by negotiation shall be submitted to Christian
mediation, and if mediation fails, arbitration, under the rules of the
Institute for Christian Conciliation, or any comparable entity agreed upon in
writing from time to time by the Parties. Any arbitration award issued by the
mediator shall be final, binding, and enforceable in any court of competent
jurisdiction.
9.6. JURISDICTION AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia. Venue
for arbitration or litigation of any dispute, controversy, or claim arising out
of, in connection with, or in relation to this Agreement, or the breach
thereof, shall be proper only in a court of competent jurisdiction within the
Commonwealth of Virginia.
9.7. ATTORNEY'S FEES. In any action between the Parties to enforce any of
the terms of this Agreement, the prevailing Party shall be entitled to recover
reasonable expenses, including reasonable attorney's fees.
9.8. NOTICE. Notices under this Agreement shall be sufficient if in
writing and if personally delivered, delivered by a major commercial overnight
delivery courier service, sent by facsimile, or mailed by U.S. mail, to a Party
at its address set forth below or as amended by notice pursuant to this
Section. Unless actually received earlier, notices shall be deemed received
five (5) days after deposit in the U.S. mail or one (1) day after being
transmitted by overnight delivery courier service or by facsimile.
if to NETRADIO: NETRADIO Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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Copy to: Mahoney, Hagberg, and Rice
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
if to DIDAX: DIDAX ON-LINE, L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇ & Grange, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
9.9. ASSIGNMENT. This Agreement is not assignable by either Party without
the written consent of the other. This Agreement shall be binding upon and
shall inure to the benefits of the Parties and their respective successors.
9.10. SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity, or enforceability of any other
part or provision of this Agreement.
9.11. WAIVER. No waiver by any Party of any breach of any provision hereof
shall constitute a waiver of any other breach of that or any other provision
hereof.
9.12. HEADINGS / COUNTERPARTS. The headings and captions in this Agreement
are for convenience of reference only and shall not define, limit, or expand
any of the terms or provisions hereof. This Agreement may be signed in
counterparts, and each counterpart shall be a part of the same whole.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by a duly
authorized representative as of the Effective Date set forth above.
NETRADIO CORPORATION DIDAX ON-LINE, L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Operating Officer Director of Technical Marketing
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