EXHIBIT 10 (j)
SOFTWARE LICENSE AGREEMENT
This Agreement made effective as of the 31th day of March, 1997 between Cinax
Designs Inc. ("Cinax") having an office at #▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ and Digital LAVA (identified in subsection 3.1) on the
following terms and conditions:
1. SCOPE
1.1 Cinax shall create and license software to Digital LAVA who shall utilize
the software as defined below. The software to be supplied is set out in
Schedule A which may be amended from time to time by listing any additional
software to be licensed to Digital LAVA by Cinax on a replacement Schedule A
signed by the parties.
2. DEFINITIONS
2.1 "Engine" shall mean the MPEG software engine developed by Cinax to crop and
concatenate a series of MPEG clips plus the APl documentation. The purpose of
this Engine is to add an editing functionality into the Digital LAVA Product.
2.2 "Product" means the current production version of the Digital LAVA vPrism
software listed in Schedule A to this Agreement, and any future fixes, updates,
enhancements and modifications to those programs created by or for Digital LAVA,
but excluding any subsequent releases or enhancements of the Product which do
not incorporate the Engine.
2.3 "Services" means the design and development of the Engine in accordance with
the Specifications and delivery of the Deliverables.
2.4 "Specifications" means the Specifications for the engine and the contracted
Services, attached to this Agreement as Exhibit A. "Schedule" means the schedule
for completion of the Services, as set forth in the Specifications.
2.5 "Deliverables" means the various alpha, beta and final versions of the
Engine, and supporting documentation, as more fully described in the
Specifications.
2.6 "Errors" means defect(s) in a deliverable which prevent it from performing
in accordance with the Specifications and or a Severity Level 1, 2 or 3 error,
as such errors are described in Schedule B.
2.7 "Library" means the software development library developed by Cinax and used
in the development of the Engine under this Agreement.
2.8 "Derivative Technology" means: (i) for copyrightable or copyrighted
material, any translation (including translation into other computer languages)
portation, modification, correction, addition, extension, upgrade, improvement
compilation, abridgment, or other form in which an existing work may be recast,
transformed or adapted; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material which is protected by trade secret,
any
new material derived from such existing trade secret material, including any new
material which may be protected by copyright, patent and/or trade secret.
2.9 "Customer" means resellers, system integrators and software wholesale or
retail outlets, and, in the event of Digital LAVA direct sales, end-users.
3. PARTICULARS
3.1 Licensee - Licensee's name and key particulars are:
(a) full name: Digital LAVA Inc
(b) full address: Suite 1260, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇,
▇▇▇▇▇
(c) telephone number: ▇▇▇-▇▇▇-▇▇▇▇
(d) fax number: ▇▇▇-▇▇▇-▇▇▇▇
(e) contact person: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(f) e-mail address: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
4 DEVELOPMENT
4.1 Services - Digital LAVA hereby retains Cinax to design, develop and test the
Engine. Cinax shall use their best efforts to perform the Services in a
workmanlike manner and in accordance with the Schedule and the Specifications.
Cinax is not obligated to perform any Services, and Digital LAVA has not
contracted for any Services, unless and until Exhibit A is executed by both
parties and attached hereto.
4.2 Acceptance of Software - For software executable code deliverables, where
Cinax delivers to Digital LAVA the alpha, beta and final versions of each
Deliverable, Digital LAVA shall evaluate and submit a written acceptance or
rejection to Cinax within five (5) business days of receipt of the alpha and
beta versions and seven (7) business days after receipt of the final version of
the Deliverables. Acceptance shall be in writing, and Digital LAVA shall not
unreasonably withhold its acceptance unless a Deliverable is not according to
the Specifications or is not according to Schedule A. If Digital LAVA identifies
Errors in a deliverable within the acceptance period, Cinax shall correct such
Errors following receipt thereof. Cinax shall use its best efforts to correct
Errors during acceptance testing for the alpha and beta versions of each
Deliverable and within the time specified in Schedule B with respect to errors
discovered during acceptance testing for the final version of each Deliverable.
4.3 Documentation- For documentation or report Deliverables, Digital LAVA shall
evaluate each version of such deliverable and in the event that corrections are
required Digital LAVA shall specify the corrections needed and Cinax shall
deliver an amended version of such documentation within five (5) business days.
4.4 Errors- If Cinax fails to deliver to Digital LAVA any deliverable within the
dates specified in the Schedule A or if any Errors discovered within the
acceptance period cannot be eliminated in the correction period specified in the
Specifications then Digital LAVA may, at its option: (i) retain the Deliverables
to date with rights as set forth in Section 10, and pay Cinax for all
outstanding payment milestones for which Digital LAVA has accepted corresponding
deliverables; (ii) extend a correction period to Cinax; or (iii) suspend Digital
LAVA's obligations under this Agreement and/or terminate this Agreement for
cause pursuant to paragraph 12.2.
4.5 Design Review and Specification Changes- Cinax understands that there may be
additions, deletions or other changes which may affect the Specifications at any
time during the term of this Agreement. Upon notice of any such changes by
Digital LAVA, Cinax and Digital LAVA agree to work together to make any
necessary changes to the Specifications, and Cinax shall alter the services in
order to accommodate any such changes to the Specifications.
5. GRANT OF LICENSE
5.1 License to Digital LAVA- Cinax hereby grants to Digital LAVA the
non-exclusive, non-transferable worldwide right and license of renewable term
to:
(i) use, copy, demonstrate and sub-license the Engine as a part of its
Product;
and otherwise carry on the activities contemplated by and as set out in this
Agreement subject to the termination provisions contained in this Agreement.
5.2 Royalty to Cinax - In return for such license Digital LAVA agrees to pay
Cinax a royalty based on the revenues or any portion thereof derived by Digital
LAVA from the resale, distribution or sub-license of the Digital LAVA-developed
Product or third party products using the Engine.
6. PURCHASE AND SALE OF PRODUCT
6.1 Reporting- Digital LAVA shall notify Cinax of all Product sales made on a
quarterly basis, in the format specified in Schedule C.
6.2 Title/Security Interest in Engine - Title to Engine shall remain in Cinax
and Cinax shall have a security interest in such units until Digital LAVA pays
Cinax in full for all amounts owing from Digital LAVA to Cinax in connection
with shipments of which the Engine forms a part. Digital LAVA shall sign all
instruments and do all acts that Cinax, acting reasonably, requires to effect,
perfect, register or record such retention of title and security interest.
7. PAYMENT
7.1 Services - Digital LAVA shall pay Cinax for the Services performed as set
forth and in accordance with the applicable Schedule A, not to exceed *****(1)
provided that (i) Cinax has completed the milestones and delivered the
Deliverable; and (ii) Digital LAVA has accepted the Deliverables. Such payments
will be due net five (5) days from the later of (i) acceptance by
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(1) Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidentiality Treatment.
Digital LAVA of the Deliverable associated with any payment milestone or (ii)
receipt by Digital LAVA of a Cinax invoice associated with any payment
milestone.
7.2 Up Front License Fee - Digital LAVA shall pay to Cinax an up front licensing
fee of *****(1) for use of the Engine. *****(1) will be due net thirty (30) days
from the later of (i) acceptance by Digital LAVA of the Final Deliverable or
(ii) receipt by Digital LAVA of a Cinax invoice associated with the Final
Deliverable, and the balance of *****(1) on the first reporting date as per
Schedule A.
7.3 Royalty free copies- The first seventy five (75) copies of the Product
shipped, including upgrades of the Product shipped to existing users, shall not
be subject to royalties.
7.4 Royalties Payable and Base - For each subsequent unit of the Product shipped
Digital LAVA shall pay to Cinax a royalty as set out in Schedule A. which amount
shall reflect the most of: *****(1) of the Product Net Sales Price invoiced by
Digital LAVA to the Customer, or at the royalty floor price of fifty dollars
*****(1).
7.5 Minimum Royalty - During each year the Agreement is in effect, Digital LAVA
shall license from Cinax not less than 200 copies of the Engine at the royalty
floor price of *****(1) US. Digital LAVA shall have the right to prepay
royalties to achieve the minimum in any given year. Failure by Digital LAVA to
license the minimum copies in a particular year of the Agreement shall be a
default of this Agreement on the part of Digital LAVA entitling Cinax to
terminate the Agreement.
7.6 The royalty charges applicable to Product are due upon invoice by Cinax and
Cinax shall invoice the Digital LAVA for such charges and all such invoices
according to Schedule C. Invoices are payable within 30 days of the invoice
receipt. Any amounts outstanding for 30 days shall be subject to interest at a
rate of 1% per month (12% per annum).
7.7 Digital LAVA shall pay all applicable sales, use, withholding and excise
taxes, and any other assessments against the Digital LAVA in the nature of
taxes, duties or charges however designated on the Product or its license or
use, on or resulting from this Agreement, exclusive of taxes based on the net
income of Cinax.
7.8 Inspection Rights - Cinax shall have the right to audit Digital LAVA's
records and papers which are relevant to the resale, distribution or sub
licensing of the Product once per year. Such audits shall be performed by an
independent accounting firm and shall be conducted at Digital LAVA's
headquarters. Written notification of such audits shall be received by Digital
LAVA at least thirty (30) days prior to such audit. Audit costs shall be Cinax's
responsibility, unless audit determines a discrepancy of 25% or greater between
Product shipped and reported, in which case Digital LAVA shall be responsible
for audit costs.
8. SUPPORT
8.1 Software Maintenance : Cinax shall provide software support and maintenance
services
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(1) Confidential information is omitted by a * and filed separately with the
SEC pursuant to a request for Confidential Treatment.
relative to the product as described herein:
a) Software Maintenance: Cinax shall use its best efforts to rectify any
problem with the Product which results in the Product not being in
substantial conformance to the functional specifications as contained in
the documentation in Schedule A;
b) Support Availability: Cinax shall provide reasonable telephone and e-mail
support for the Engine between the hours of 8:30 a.m. and 5:00 p.m.,
Pacific Standard Time, excluding weekends and Canadian statutory' holidays,
to Digital LAVA only.
c) Cost; there will be no support costs charged.
8.2 Suspension of Support- if Cinax terminates Agreement under Section 12.2 (b)
Cinax shall provide Digital LAVA with a copy of the Engine source code for the
express purpose of providing support, as described above, to end users of its
Product. Digital LAVA will not use the source for any other purpose, or in any
way use this source code to impinge the rights of Cinax as set out in Section
10- Rights and Ownership.
9. WARRANTY
9.1 Limited Warranty of Engine - Cinax warrants that Engine supplied hereunder
shall perform in accordance with the functional specifications as set out in the
documentation accompanying the Engine provided for 90 days following acceptance
of the Product. Cinax's sole obligation and liability hereunder shall be to use
reasonable efforts to remedy any such functional non-conformance which is
reported to Cinax in writing by Digital LAVA within the warranty period. In the
event such non-conformance is unable to be remedied by Cinax, using reasonable
efforts, Cinax shall, in its sole discretion, refund to Digital LAVA the royalty
payment and use reasonable efforts to find a replacement and this Agreement will
be automatically terminated.
9.2 SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE WARRANTIES SET OUT IN SECTION
9.1 AND 10.1 ARE IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND WHATSOEVER,
EITHER EXPRESS OR IMPLIED BY LAW (in contract or tort) OR CUSTOM, INCLUDING, BUT
NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. WITHOUT LIMITING
THE ABOVE, CINAX DOES NOT WARRANT THAT THE PRODUCT SHALL MEET THE REQUIREMENT OF
DIGITAL LAVA OR THAT THE OPERATION OF PRODUCT SHALL BE FREE FROM INTERRUPTION OR
ERRORS.
9.3 RESTRICTIONS ON WARRANTY - CINAX SHALL HAVE NO OBLIGATION TO REPAIR OR
REPLACE PRODUCT DAMAGED BY ACCIDENT OR OTHER EXTERNAL CAUSE, OR THROUGH THE
FAULT OR NEGLIGENCE OF ANY PARTY OTHER THAN CINAX.
9.4 NO INDIRECT DAMAGES - IN NO EVENT SHALL CINAX BE LIABLE TO DIGITAL LAVA OR
TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR LOSSES (in contract or tort) IN
CONNECTION WITH PRODUCT, SOFTWARE SUPPORT SERVICES OR THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST SAVINGS,
OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, EVEN IF ClNAX SELLER HAS
KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
9.5 LIMITS ON LIABILITY - IF FOR ANY REASON, CINAX BECOMES LIABLE TO DIGITAL
LAVA OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (in contract or tort), INCURRED
IN CONNECTION WITH THIS AGREEMENT, THE PRODUCT, OR SOFTWARE SUPPORT SERVICES
THEN:
(A) THE AGGREGATE LIABILITY OF ClNAX FOR ALL DAMAGES, INJURY, AND LIABILITY
INCURRED BY DIGITAL LAVA AND ALL OTHER PARTIES IN CONNECTION WITH PRODUCT
AND SOFTWARE SUPPORT SERVICES SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE
FEES AND ROYALTIES PAID TO CINAX FOR THE PRODUCT OR SOFTWARE SUPPORT
SERVICES WHICH GAVE RISE TO THE CLAIM FOR DAMAGES; AND
(B) DIGITAL LAVA MAY NOT BRING OR INITIATE ANY ACT OR PROCEEDING AGAINST SELLER
ARISING OUT OF THIS AGREEMENT OR RELATING TO PRODUCT OR SOFTWARE SUPPORT
SERVICES MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION HAS ARISEN.
9.6 SEPARATE ENFORCEABILITY - SECTIONS 9.2, 9.3, 9.4 AND 9.5 ARE TO BE CONSTRUED
AS SEPARATE PROVISIONS AND SHALL EACH BE INDIVIDUALLY ENFORCEABLE.
9.7 Indemnity - Except to the extent of Cinax's obligations under sections 9.1
and 10.1, Digital LAVA shall defend, indemnify and save harmless Cinax, its
affiliates and their respective directors, officers and employees and each of
them from and against all actions, proceedings, demands, claims, liabilities,
losses, damages, judgments, costs and expenses including, without limiting the
generality of the foregoing, legal fees and disbursements on a solicitor and
client basis (together with all applicable taxes) which any indemnified person
hereunder may be liable to pay or may incur by reason of, or directly or
indirectly arising out of, any claim which may be advanced by any Customer
obtaining Product directly or indirectly through Digital LAVA.
10. RIGHTS AND OWNERSHIP OF PRODUCT
10.1 Warranty of Title - Cinax warrants that it has all rights necessary to make
the grant of license herein by having all right, title and interest in and to
the Library and any other software libraries used to develop and/or implement
the Engine.
10.2 Retention of Rights by Cinax - All proprietary and intellectual property
rights, title and interest including copyright in and to the original and all
copies of the Engine and the documentation or any changes or modifications made
to the Engine or related documentation shall be and remain that of Cinax or its
licensor as the case may be. Digital LAVA has no proprietary and intellectual
property rights, title or interest in or to the Engine or related documentation
except as granted herein and Digital LAVA shall not at any time whether before
or after the termination of this Agreement contest or aid others in contesting,
or doing anything which otherwise impairs the va}idity of any proprietary and
intellectual property rights, title or interest of Cinax in and to the Engine or
related documentation.
10.4 Intellectual Property Indemnity - Cinax shall defend or settle any claim
made or any suit or proceeding brought against Digital LAVA insofar as such
claim, suit or proceeding is based on an allegation that any of the Product
supplied to Digital LAVA pursuant to this Agreement infringes the proprietary
and intellectual property rights of any third party in or to any invention,
patent, copyright or any other rights, provided that Digital LAVA shall notify
Cinax in writing promptly after the claim, suit or proceeding is known to
Digital LAVA and shall give Cinax information and such assistance as is
reasonable in the circumstances. Cinax shall have sole authority to defend or
settle the same at Cinax's expense. Cinax shall indemnify and hold Digital LAVA
harmless from and against any and all such claims and shall pay all damages and
costs finally agreed to be paid in settlement of such claim, suit or proceeding.
This indemnity does not extend to any claim, suit or proceeding based upon any
infringement or alleged infringement of copyright by the combination of the
Product with other elements not under Cinax's sole control nor does it extend to
any Product altered by Digital LAVA either by enhancement or by combination with
product(s) of the Digital LAVA's design or formula. The foregoing states the
entire liability of Cinax for proprietary and intellectual proprietary rights
infringement related to the Product. If the Product in any claim, suit or
proceeding are held to infringe any proprietary or intellectual property rights
of any third party and the use thereof is enjoined or, in the case of settlement
as referred to above, prohibited, Cinax shall have the option, at its own
expense, to either (i) obtain for Digital LAVA the right to continue using the
infringing item, or (ii) replace the infringing item or modify it so that it
becomes non-infringing; provided that no such replacement or modification shall
diminish the performance of the Product.
10.4 Infringement by Third Parties - Should either party become aware of
possible or threatened infringement of the Engine or the Library, or any patents
or patent applications in the same, it shall notify the other party forthwith.
Each party undertakes to cooperate fully with the other party in any action
against any such possible or threatened infringer. Cinax shall have the
exclusive discretion to determine whether to take action, and what action to
take, to enter into any settlement and to receive any proceeds or awards in
respect of alleged infringements of the Engine or Library.
10.5 Infringement of Third Party Rights- In the event either party becomes aware
of the threatened infringement of any third party patent rights or copyrights of
the Engine or the Library, it shall promptly notify the other party of such a
claim. Each party shall have the right to negotiate, settle or defend any claim
by a third party alleging infringement by the Engine or the Library of any
copyrights or patents.
11. CONFIDENTIALITY AND USE LIMITATION
11.1 Confidentiality - Digital LAVA shall not at any time whether before or
after the termination of this Agreement disclose, furnish, or make accessible to
anyone any confidential information, which confidential information is deemed to
include the source code of the Product or related technical documentation or any
part thereof, or permit the occurrence of any of the
above.
11.2 Safeguards - Digital LAVA shall take reasonable precautions to prevent
Product in its care and control from being duplicated, stolen, disclosed or used
for unauthorized purposes.
11.3 Non-disclosure of Agreement - Digital LAVA shall not disclose the terms,
content or nature of this Agreement to any third party unless Digital LAVA must
disclose such information as a result of a duly issued legal process or a formal
due diligence process.
11.4 References - Digital LAVA agrees that the fact of its use of the Engine may
be disclosed to others and Digital LAVA shall become a reference account for
Cinax and the Engine.
11.5 Competition - The parties acknowledge that this Agreement does not restrict
or prohibit either party from making arrangements with any third parties or
dealing in any way with any other software or hardware even if such party or
said other software or hardware competes with the Engine or services offered by
Cinax or Digital LAVA. Nothing contained in this Agreement shall prevent Digital
LAVA from developing or having developed or from acquiring from third parties,
products similar to and competitive with the Engine. Furthermore, nothing herein
shall preclude Digital LAVA from marketing such Digital LAVA-developed or third
party acquired products to others.
12. TERM AND TERMINATION
12.1 Term - This Agreement shall subsist for an initial term of two (2) years
commencing on the execution date of this Agreement ("Initial Term"). This
Agreement shall be reviewed in one-year periods ("Renewal Terms"), provided that
Digital LAVA is not in default under this Agreement at the time of renewal.
Renewal shall be on the same terms and conditions as are set out herein.
12.2 Termination - This Agreement shall terminate in each of the following
events:
(a) at the option of either party if the other party materially defaults in the
performance or observance of any of its obligations hereunder and fails to
remedy the default within 60 days after receiving written demand therefor;
or
(b) at the option of either party if the other party becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or if a
receiver or trustee in bankruptcy is appointed for the other party, or if
any proceeding in bankruptcy, receivership, or liquidation is instituted
against the other party and is not dismissed within 30 days following
commencement thereof;
provided that the right of termination shall be in addition to all other rights
and remedies available to the parties for default or wrong-doing by each other.
12.3 Suspension of Obligations - If either party should default in the
performance or observance of any of its obligations hereunder then in addition
to all other rights and remedies available to the non-defaulting party, the non
defaulting party may suspend performance and observance of any or all its
obligations under this Agreement, without liability, until the other party's
default is remedied, but this section shall not permit Digital LAVA to suspend
its
obligation to make payments owing in respect of Product.
12.4 Return of Engine - If Digital LAVA discontinues sales of the Product or use
of the Engine, or in the event of termination of this Agreement by either party,
Digital LAVA shall immediately return to Cinax all copies of the Engine thereof
and certify in writing to Cinax that Digital LAVA has done so,
13. GENERAL
13.1 Complete Agreement
This is the complete and exclusive statement of the Agreement between the
parties with respect to the subject matter contained herein and supersedes and
merges all prior representations, proposals, understandings and all other
agreements, oral or written, express or implied, between the parties relating to
the matters contained herein. This Agreement may not be modified or altered
except by written instrument duly executed by both parties.
13.2 Force Majeure
Dates or times by which either party is required to perform under this Agreement
excepting the payment of any fees or charges due hereunder shall be postponed
automatically to the extent that any party is prevented from meeting them by
causes beyond its reasonable control.
13.3 Notices
All notices and requests in connection with this Agreement shall be given or
made upon the respective parties in writing and shall be deemed given as of the
third day following the day the notice is faxed, providing hard copy
acknowledgment of successful faxed notice transmission is retained Notice may
also be deposited in the Canadian or US mails, postage pre-paid, certified or
registered, return receipt requested, and addressed to the respective parties at
the party's address as indicated above
13.4 Governing Law
This Agreement and performance hereunder shall be governed by the taws of
British Columbia.
13.5 Enforceability
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable under any applicable statute or rule of law, the validity,
legality and enforceability of the remaining provisions shall in no way be
affected or impaired thereby.
13.6 Non-Assignment
Digital LAVA may not assign its rights, duties or obligations under this
Agreement except to a related, affiliated or associated company by way of
reorganization of Digital LAVA or a successor to substantially all of the assets
and undertaking of Digital LAVA, without the prior written consent of Cinax.
Digital LAVA's obligation to pay any fees or charges due hereunder is not
assignable.
13.7 Non-Waiver
The waiver or failure of either party to exercise in any respect any right
provided for herein shall
not be deemed a waiver of any further right hereunder.
13.8 No Aqency
The parties acknowledge that each as an independent contractor and nothing
herein constitutes a joint venture or partnership and neither party has the
right to bind nor act for the other as agent or in any other capacity.
13.9 Enurement
All covenants, representatives, warranties and agreements of the parties
contained herein shall be binding upon and shall enure to the benefit of the
parties and their respective successors and permitted assigns.
13.10 Survival
Sections 6 and subsections 5.2, 9.2, 9.3, 9.4, 9.5, 9.7, 10.2, 11.1, 11.2, 11.3,
11.4 and 12.3 shall survive termination and expiration of the agreement.
13.11 Interlocutory Remedy
Both parties acknowledge that irreparable harm shall result to the other if
either breaches their obligations under sections 6 and 10 and both parties
acknowledge that such a breach would not be properly compensable by an award of
damages. Accordingly, each party agrees that remedies for any such breach may
include, in addition to other available remedies and damages, injunctive relief
or other equitable relief enjoining such breach at the earliest possible date.
13.12 Disputes - Except with respect to applications for injunctions, any
dispute arising out of or in connection with this Agreement or any legal
relationship associated therewith shall be finally resolved at the British
Columbia International Commercial Arbitration Center (BClCAC) by a sole
arbitrator pursuant to the rules of the BClCAC.
IN WITNESS WHEREOF the parties thereto have executed this Agreement, through
their respective officers, duly authorized for such purpose, as they so declare
and represent, as the Effective Date.
Digital Lava Inc. Cinax Designs Inc.:
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ D.J. Sharrfman ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Authorized Signature Authorized Signature
Title: CEO Title: President
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office of Company's representative office of Company's representative
SCHEDULE A
SPECIFICATIONS, DELIVERABLES AND SCHEDULE
PRODUCT
Item Description Ownership List Price
---- ----------- --------- ----------
1. vPrism, Video Computing Suite Digital Digital Lava *****(1)
PRODUCT FOR LICENSE
Item Description Documentation
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1. Windows Engine *****(1) (MPEG crop and concat APl doc
based on timecode inputs)
2. MAC Engine (Shared Library) APl doc
(MPEG crop and concat based on timecode inputs)
GENERAL SPECIFICATIONS *****(1)
PLATFORMS SUPPORTED:
1. Windows 95 and Windows NT compatible.
2. Mac OS System compatible
3. ActiveMovie MPEG-1 playback
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pursuant to a request for Confidentiality Treatment.
Stream supported:
1. Any ISO 11172 compliant MPEG system streams
DELIVERABLES
Alpha/Project Design- as per specifications
Beta- Mac and Windows version
Final Product- Working version of both Mac and Windows version
SCHEDULE INVOICE AMOUNT PRIME
TARGET DATE MILESTONE (USD) RESPONSIBILITY
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March 31, 1997 Contract Start *****(1) Cinax
Project Design
April 15, 1997 Delivery of Windows Beta *****(1) Cinax
May 2, 1997 Delivery of MAC Beta *****(1) Cinax
May 12, 1997 Delivery of Documentation *****(1) Cinax
Delivery of Windows and MAC
Final Product
May 16, 1997 License Commences *****(1) Digital LAVA
June 30, 1997 First Reporting Date *****(1) Digital LAVA
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(1) Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidentiality Treatment.
SCHEDULE C
PRODUCT SALE REPORTING
Digital LAVA shall notify Cinax of all Product sales made on a quarterly basis,
on March 31, June 30, September 30 and December 31, in writing, in the format
specified below :
(i) the number of Product shipped (both Evaluation Copies and Production
Versions);
(ii) the date of shipment from Digital LAVA to third parties including Customers
(iii) the Extended Price of the Product, before shipping and taxes.
EXHIBIT A
Partner Products
VideoVisor
vPrism
VideoVisor Publisher
EXHIBIT B
RMA Server
The RMA Server includes the following:
1) installer for the appropriate operating system platform
2) operators manual
3) exposed interfaces to plug-in a monitor, administrator, file system,
datatype or broadcast datatype
4) base-level monitoring tool
5) ability to stream a datatype given a file format plug-in or broadcast
plug-in and license key
6) supports the following platforms: Windows NT; UNIX (Free BSD, Solaris 2.5,
Linux, DEC UNIX, BSDI, HP/UX, SunOS 4.1, IRIX and AIX)
SCHEDULE I
Except for the RN Products, which are subject to Schedule 2, Partner shall pay
RN at the rate of *****(1) plus *****(1) of the total gross revenue receivable
by Partner from the sale, license or distribution of all RMA-based products,
including Partner Products, RMA Players, RMA Servers, License Keys, Updates, New
Release and any site licenses.
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1 Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidential Treatment.
SCHUEDULE 2
Partner shall pay RN at the discounted rate of *****(1) off from RN's listed
retail price for the RN Products.
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(1) Confidential information is omitted by a * and filed separately with the SEC
pursuant to a request for Confidential Treatment.