|
AMENDED AND RESTATED
LICENSE, HOSTING AND SERVICES AGREEMENT
This AMENDED AND RESTATED LICENSE, HOSTING AND SERVICES
AGREEMENT
("Agreement") is entered into to be effective as of January 29,
2007 ("the
---------
Effective Date") by and between RazorStream, LLC, a Nevada limited
liability
---------------
company located at 3035 East Patrick Lane, Las Vegas, Nevada
89120
("RazorStream"), and VMdirect, L.L.C., a Nevada limited liability
company
-----------
located at 3035 East Patrick Lane, Las Vegas, Nevada 89120
("Company")
-------
(hereinafter RazorStream and Company may be referred to
individually as a
"Party" and collectively as the "Parties").
----- -------
RECITALS
A. The Parties are parties to that certain License, Hosting and
Services Agreement dated to be effective as of May 1, 2005 (the
"Original
--------
Agreement").
---------
B. The Parties desire to enter into this Agreement to (a) amend
and
restate the Original Agreement, and (b) to govern the terms and
conditions
pursuant to which RazorStream (i) makes the Technology (as defined
below)
available to Company, and (ii) provides certain hosting and support
and
maintenance services to Company.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained
herein
and other good and valuable consideration, the receipt and
sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. In addition to the terms defined elsewhere in
this
Agreement and in the attached Exhibits, the following terms shall
have the
meanings set forth below:
1.1 "Accounting Records" means (a) with respect Company, financial
records
-------------------
with regard to the gross revenue from User accounts, and (b) with
respect to
RazorStream, financial records with regard to the records of the
Expenses
charged by RazorStream to Company.
1.2 "Affiliate" means (a) with respect to the Company, any person
or entity
---------
directly, or indirectly through one or more intermediaries,
controlled by, or
under common control with, Company, and (b) with respect to
RazorStream, any
person or entity controlling, controlled by, or under common
control with
RazorStream. For purposes of this definition, "control" means the
possession,
directly or indirectly, of the power to direct or cause the
direction of the
management and policies of an entity, whether through the ownership
of voting
securities or voting interests, by contract or otherwise.
1.3 "Bandwidth" means the capacity of the connection between
the
---------
Technology/Hosting Services and the Internet.
1.4 "Claim" means any allegation, claim, suit, action, demand,
cause of
-----
action, investigation or proceeding.
1.5 "Company Services" means any product or service offered by
Company from
-----------------
time to time to its Users that includes the Technology.
1.6 "Company Software" means software owned and/or licensed to
Company that
-----------------
is used with, or that incorporates and/or embeds, the
Technology.
<PAGE>
1.7 "Derivative Work" means any work, which would be deemed a
derivative work
---------------
under the Copyright Act, Title 17 of the U.S. Code.
1.8 "Documentation" means the technical and user manuals, FAQ
materials,
-------------
including any computer or web-based training materials, and any
hardware or
software specifications, system performance, compatibility or
operational
criteria or other official documentation described in Exhibit A or
otherwise
---------
made available by RazorStream to Company with respect to the
Technology;
provided, however, that except as otherwise approved by Company,
any such items
made available to Company after the Effective Date shall not
become
Documentation if they would materially diminish or reduce the
functionality of
the Technology.
1.9 "Expenses" means the costs, fees, expenses and other amounts
(including,
--------
but not limited to, Fees) incurred by Company under this
Agreement.
1.10 "Field of Use" means the provision of video-based Internet
--------------
communication products and/or services, including, without
limitation, video
e-mail, video instant messaging, live or pre-recorded webcasting,
digital vault
storage technology and/or podcasting, including, without
limitation, for
purposes of Internet-based social networking applications or
websites, and/or
commercial products or applications.
1.11 "Intellectual Property Rights" means one or more of the
following: (a)
------------------------------
rights associated with works of authorship throughout the universe;
(b)
copyrights; (c) moral rights; (d) mask-works; (e) trademarks and
service marks;
(f) trade names; (g) trade secrets; (h) patents, designs,
algorithms and other
industrial property rights; (i) any other intellectual and
industrial property
rights, whether arising by operation of law, contract, license, or
otherwise;
and (j) with respect to the foregoing, all registrations, initial
applications,
renewals, extensions, continuations, divisions or reissues hereof
now or
hereafter in force.
1.12 "Internet" means the world-wide network of computers commonly
understood
--------
to provide some or all of the following features, among others:
electronic mail,
file transfers through File Transfer Protocol, Telnet access to
local and remote
computers, UseNet Newsgroups, Gopher access to information on local
and remote
computers, Wide Area Information Servers, and World Wide Web
access.
1.13 "Liabilities" means any and all losses, damages, judgments,
assessments,
-----------
deficiencies, expenses (including court costs and reasonable
attorneys' fees),
costs and other liabilities of whatsoever kind.
1.14 "Licensed Entities" means Company, its Affiliates, any third
party
------------------
authorized by Company from time to time, and the Users.
1.15 "Minimum Guaranteed Payment" has the meaning set forth in
Exhibit D of
---------------------------- ---------
this Agreement.
1.16 "Modifications" means any modification (including custom
modifications
-------------
made specifically for or at the request of Company), addition,
enhancement,
revision, translation, abridgment, condensation or expansion to or
arising from
the Technology, or any other form in which the Technology or any
part thereof,
may be recast or transformed, in any manner that does not
constitute a
Derivative Work.
1.17 "New Version" means, with respect to software embodied in the
Technology,
-----------
a version of the Technology which contains significant changes in
features and
functionality and has a new version numbering, as determined in
RazorStream's
sole discretion.
1.18 "Non-Recurring Engineering Fees" has the meaning set forth in
Exhibit D
-------------------------------- ---------
of this Agreement.
-2-
<PAGE>
1.19 "Object Code" means computer software program code that is
intended to be
-----------
directly executable by a computer after suitable processing and
without the
intervening steps of compilation or assembly.
1.20 "Operations Records" means (a) written records maintained by
RazorStream
-------------------
with regard to the maintenance and operation of the Technology and
Hosting
Services, including, but not limited to, maintenance, repair
records, upgrade
records, and server logs for the Technology and Hosting Services in
relation to
Transaction activity, and (b) documentation with regard to
operational audits
performed by or on behalf of RazorStream.
1.21 "RazorStream Brand Features" means the trademarks, trade
names, service
----------------------------
marks, service names and logos proprietary to RazorStream, as set
forth on
Exhibit A, as such exhibit may be modified from time to time by
mutual agreement
---------
of the parties (which agreement will not be unreasonably withheld
or delayed).
1.22 "Related Parties" means any owner, parent, partner,
Affiliate,
----------------
subsidiary, agent, subcontractor, director, officer, hired or
leased employee or
worker, or permitted assignee of RazorStream or Company, as the
case may be and
as the context requires.
1.23 "Source Code" means computer software program code, other than
Object
------------
Code and procedural code, such as job control language, which may
be printed out
or displayed in human readable form (together with its
supporting
documentation).
1.24 "Specifications" means (a) the design characteristics,
compatibility
--------------
requirements, customization, features, functional, performance,
engineering,
operational and/or technical criteria, and the required hardware
and software
operating environment for operation of the Technology, (b) the
requirements for
the Technology described in Exhibit A and/or the Documentation, (c)
the
----------
representations, warranties, covenants and other guarantees
provided in this
Agreement, and (d) any written performance, feature or
functionality
specifications or documentation related to the Technology provided
or made
available by or through RazorStream to Company and approved by
Company either
prior to or after the Effective Date.
1.25 "Subscriber Account" means each active User account of a
website operated
------------------
by Company or any third party authorized by Company, whereby the
Company
Software is sublicensed to such User.
1.26 "Technology" means (a) the software applications and computer
programs
----------
described in the attached Exhibit A, (b) any Technology Releases
developed by
---------
RazorStream from time to time, (c) any custom Technology
enhancements developed
by RazorStream hereunder pursuant to a SOW, (d) any interfaces
necessary for the
Technology to function within the operating environment of the
Licensed
Entities, and (e) all Documentation relating to any of the
foregoing. For the
avoidance of doubt, the term "Technology" includes any third party
technology,
software or products embedded in the computer program described on
Exhibit A or
---------
any Technology Release.
1.27 "Technology Releases" means any corrections, modifications, or
bug fixes,
-------------------
enhancements, updates, new versions or releases to the
Technology.
1.28 "Territory" means the world.
---------
1.29 "Third Party Service Provider" means a third party Internet
service
-------------------------------
provider (ISP) that directly or through one or more intermediaries
provides
services to RazorStream in order for RazorStream to fulfill its
obligations
under this Agreement, including: (a) two (2) or more independent
ISP
connections; (b) related online facilities management and
redundancy; and (c)
related power supply and power management.
-3-
<PAGE>
1.30 "Third Party Software" means the third party software and
technologies
----------------------
(licensed to RazorStream from third party software providers) that
are
integrated into the Technology, a list of which is set forth on
Exhibit E
---------
hereto.
1.31 "Transaction" means any User transaction consummated with
respect to the
-----------
Company Services via the Technology and Hosting Services.
1.32 "Update" means bug fixes, improvements, updates,
Modifications,
------
Derivative Works and upgrades to any portion of the Technology
developed by
RazorStream from time to time.
1.33 "User" means individuals and entities who utilize the Company
Software
----
for their personal or commercial purposes, as permitted by Company
from time to
time, through one or more websites operated by Company or any third
party
authorized by Company.
1.34 "User Information" means personally identifiable information
of Users and
----------------
any other information or data relating to any Transaction
transmitted via the
Technology and Hosting Services in connection with or otherwise
relating to
Company, the Users and/or the Company Services.
1.35 "Virus" means a set of computer instructions which are
self-replicating
-----
or self-propagating and are designed to contaminate the Technology,
unexpectedly
consume computer resources, or modify, destroy, record or transmit
data or
programming without the intent or permission of the user.
2. RULES OF CONSTRUCTION.
For all purposes of this Agreement, except as otherwise expressly
provided or
unless the context otherwise requires: (a) the terms defined herein
include the
plural as well as the singular and vice-versa; (b) words importing
gender
include all genders; (c) any reference to an "Exhibit," an
"Article," or a
"Section" refers to an Exhibit, an Article, or a Section, as the
case may be, of
this Agreement; (d) the Exhibits hereto form part of this
Agreement; (e) all
references to this Agreement and the words "herein", "hereof",
"hereto" and
"hereunder" and other words of similar import refer to this
Agreement as a whole
and not to any particular Exhibit, Article, Section, or other
subdivision; (f)
all Article and Section headings are for convenience only and shall
not affect
the interpretation or construction of this Agreement, (g) the words
"including,"
"included" and "includes" mean inclusion without limitation except
as noted; and
(h) this Agreement, the Documentation and the Exhibits hereto shall
be construed
as consistent with one another whenever possible; however, in the
event of any
conflict between any of the terms and conditions of this Agreement,
on the one
hand, and the Exhibits and/or the Documentation, on the other hand,
this
Agreement shall prevail.
3. TECHNOLOGY LICENSE AND HOSTING SERVICE.
3.1 License Grant. Subject to Company's continued compliance with
the
--------------
obligations of this Agreement, RazorStream hereby grants Company
throughout the
Territory and solely within the Field of Use:
3.1.1 a perpetual, royalty-free, non-exclusive, irrevocable
license,
under the Intellectual Property Rights comprising the Technology,
to use,
copy, reproduce, modify, and prepare Derivative Works of, the
Technology,
including, with respect to any software embodied therein, in Source
Code
format, solely for the purposes of integrating and/or embedding
the
Technology with, and/or otherwise designing and/or developing the
Company
Software;
-4-
<PAGE>
3.1.2 a perpetual, royalty-free, non-exclusive, irrevocable
license,
under the Intellectual Property Rights comprising the Technology,
to use,
copy, have used, reproduce, distribute, modify, prepare Derivative
Works
of, perform, display, license and otherwise exploit the
Technology,
including with respect to any software embodied therein, in Object
Code
format only, as embedded in, or integrated with, in whole or in
part,
the Company Software;
3.1.3 the limited right to grant in the Territory, exclusive or
non-exclusive, sublicenses in and to the Technology (including to
all
Intellectual Property Rights therein), including with respect to
any
software embodied therein, in Object Code format only, solely for
the
purpose of exploiting the Company Software (including, without
limitation,
embedding or integrating such software, in Object Code form only,
on
Company or third party websites and/or in Company and/or
third-party
applications and devices);
3.1.4 the limited right to grant in the Territory, exclusive or
non-exclusive, sublicenses in and to the Technology (including
all
Intellectual Property Rights therein), including with respect to
any
software embodied therein, in Object Code format only, to Users,
solely for
the purpose of using the Company Software (including, without
limitation,
as such Company Software may be embedded or integrated in
third-party
applications and devices);
3.1.5 a perpetual, royalty-free, non-exclusive, irrevocable license
to
make additional copies of the Technology as needed for archival or
back-up
purposes;
3.1.6 a perpetual, royalty-free, non-exclusive, irrevocable license
to
copy and display the Documentation only as reasonably necessary to
exercise
the licenses granted to Company in Sections 3.1.1-3.1.5, including
any
sublicense rights therein;
3.1.7 a perpetual, royalty-free, non-exclusive, irrevocable license
to
use, reproduce and display the RazorStream Brand Features in
connection
with the sale, advertising, distribution, exploitation,
publishing,
promotion, and marketing of the Company Software, in each case, as
approved
by RazorStream from time to time (which approval will not be
unreasonably
withheld or delayed); and
3.1.8 anon-exclusive sublicense in and to the Third Party
Software
(including all Intellectual Property Rights therein),as
incorporated in the
Technology, to use and exploit such Third Party Software to the
same extent
permitted by RazorStream in its license agreements with the
respective
owners of such Third Party Software, in each case as set forth on
Exhibit
E.
3.2 Specifications. Exhibit A sets forth either detailed or
high-level
-------------- ----------
descriptions for the Technology. To the extent not already
developed and set
forth on Exhibit A, RazorStream promptly shall develop detailed
Specifications
---------
for each item of the Technology within thirty (30) days after the
Effective
Date, which requirement is a material term of this Agreement as
long as Company
provides timely feedback. All Specifications developed in
accordance with the
foregoing sentence shall be subject to Company's review and
approval, which
review and approval shall not be unreasonably withheld or delayed.
Such
Specifications, and any modified Specifications approved by
Company,
automatically shall become part of Exhibit A for all purposes under
this
----------
Agreement in regards to the initial implementation.
3.3 Hosting Services. During the Term, RazorStream shall host the
Technology
----------------
for the Licensed Entities' access and use of the Technology (the
"Hosting
-------
Services"). As part of the Hosting Services, RazorStream shall
provide, operate
--------
and maintain at its premises, or facilities under its control and
supervision,
all servers, operating system software, network security,
connectivity and other
items
-5-
<PAGE>
necessary for the proper operation of the Technology in accordance
with its
Specifications, the service level agreement set forth in Article 8
below and all
other provisions of this Agreement.
3.4 Documentation. RazorStream shall provide Company with
Documentation
-------------
(which may be in electronic format) that is sufficiently detailed
so as to
enable a reasonable end-user to use the Technology for its intended
purpose and
which sets forth the Specifications for the Technology. Company may
duplicate
the Documentation so that Company's personnel may use the
Technology and
Documentation to conduct electronic commerce business activities
from as many
work stations as may be required.
3.5 Source Code Escrow. Within sixty (60) days after the Effective
Date,
--------------------
RazorStream shall deposit and maintain the Technology in Source
Code form
(including all any updates, modifications or enhancements),
together with all
Documentation and appropriate supporting materials, in escrow with
DSI
Technology Escrow Services Inc. (or such other escrow agent as
mutually agreed)
for the benefit of Company pursuant to a separate escrow agreement
in a form
acceptable to both Parties. Company shall be permitted to access
and use the
escrowed materials (a) if RazorStream ceases to operate or states,
either in
general to the public, or in writing to Company, that RazorStream
does not
intend to continue to support the Technology, (b) upon the
occurrence of an
Event of Default by RazorStream with respect to any obligation or
duty relating
to the Hosting Services and/or Support Services, (c) upon
bankruptcy or
insolvency of RazorStream, (d) upon termination of this Agreement
by Company
pursuant to Sections 3.6, 14.1 or 14.2, or (e) as otherwise set
forth in the
escrow agreement. The costs for maintaining the Technology in
Source Code form
on behalf of Company by the escrow agent shall be paid by
Company.
The escrow agreement shall include, without limitation, a license
grant for use
of the escrowed materials by Company in such manner as shall be
reasonably
required to exercise the rights pursuant to this Agreement,
including to use,
reproduce, publicly display and perform, and modify (including
without
limitation the ability to alter, change, enhance and make additions
to) the
Source Code consistent with the licenses granted herein. Company
may engage a
third party consultant or independent contractor to modify, change
or enhance
the Source Code on Company's behalf; provided, however, that
Company shall first
require that any such consultant or independent contractor execute
a
non-disclosure agreement. Any modifications or derivative works
(including all
alterations, changes, enhancements and additions) to the Source
Code created by
or on behalf of Company, but not the base Source Code that was the
starting
place for such modifications, shall be owned solely and exclusively
by Company
and RazorStream hereby assigns all of its right, title and interest
in and to
such modifications or derivative works to Company. RazorStream also
shall
promptly place any updates, modifications or enhancements and
accompanying
Documentation and/or supporting materials into such escrow. The
nature and
completeness of the escrowed materials will be subject to
verification at the
facilities of the escrow agent by a representative of Company in
the presence of
a representative of RazorStream. From time to time at Company's
request,
RazorStream shall provide Company with a list of all third-party
software
embedded in the Technology, if any.
3.6 Option to Host Technology. Company may, at its sole option,
elect to
----------------------------
host the Technology on Company's, or a third party's, servers for
the benefit of
all Licensed Entities, by providing thirty (30) days' prior written
notice to
RazorStream at anytime during the Term. Following the exercise of
such option,
RazorStream shall continue to provide the Technology and Hosting
Services as
provided hereunder until such time as Company has confirmed in
writing that the
Technology has been successfully transitioned to Company's, or a
third party's,
servers (the "Transfer Notice"). RazorStream shall use reasonable
and good
----------------
faith efforts to cooperate with Company to transition the
Technology. Company
shall be responsible for all expenses associated with transferring
and retooling
and equipment required for the Technology on Company's equipment.
The exercise
by Company of the option hereunder shall be deemed a termination of
this
Agreement under Section 14.2.
-6-
<PAGE>
3.7 Application to Company and Third Party Websites. For the
avoidance of
--------------------------------------------------
doubt
 |