EXHIBIT 10.35
Microsoft Word 11.0.6502;This Agreement is made on the 23rd day of December,
2005 by and between:
1. NS8 CORPORATION, a company incorporated in the State of Delaware and
having its principal office at One Union Square, 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, 00000 XXX (hereinafter referred to as
"NS8");
2. ACME MOBILE PTE LTD, a company incorporated in Singapore, and having its
offices at 000X Xxxxx Xxxx Xxxxxx, Xxxxxxxxx 000000 (hereinafter referred
to as "Acme").
WHEREAS:
A. NS8 is a mobile content service provider and Acme is an authorised
distributor of Mobile Entertainment applications and contents.
B. NS8 intends to make available to its Customers Contents (as defined
below) to be provided by Acme that will enable the Customers of NS8 to
purchase and run such Contents on their mobile phones.
NOW IT IS AGREED THAT:
1. DEFINITIONS
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Terms / Expressions Meaning
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"Contents" All the JAVA, MMS, graphical and/or
other mobile entertainment contents
and/or applications provided by Acme to
NS8.
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"Content Fee" The fee paid by Customers for each
downloaded piece of Content, excluding
airtime & data charges and the
prevailing Goods and Services Tax.
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"Customers" Subscribers to NS8's service.
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"Content Licensors" Third party content providers for whom
Acme is an authorized distributor.
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"Service" The Service to download a selection of
Contents that are provided by Acme. The
Service shall be made available to the
Customers via their mobile phones and/or
NS8's web sites or other designated
websites.
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2. COMMENCEMENT AND TERMINATION
2.1 This Agreement will take effect on January 3, 2006 ("Effective Date") and
continue for an initial term of three (3) years, and shall thereafter be
automatically renewed for successive 1-year terms.
2.2 Notwithstanding Clause 2.1, this Agreement or any part thereof may be
terminated:
(a) By either party, upon giving at least ninety (90) days' prior
written notice to the other without assigning any reason thereof;
(b) Immediately, upon written notice by either party, if the other
breaches a representation, warranty or material obligation of this
Agreement and fails to cure the breach within fourteen (14)
business days from the receipt of a written request to cure from
the non-breaching party; or
(c) Immediately, upon written notice by either party, if the other
ceases or threatens to cease to carry on all or a substantial part
of its business, or becomes insolvent, or makes an assignment for
the benefit of its creditors, or a receiver is appointed for its
business, or an order is made for the winding up of it (other than
for the purposes of amalgamation or reconstruction).
2.3 Upon termination of this Agreement or part thereof, NS8 will remove the
relevant Contents and delete the said Contents from its web sites and any
other storage medium. All materials in either party's control belonging
to the other party, including without limitation, Confidential
Information (as defined below) of either party, will be promptly returned
to the owner or destroyed according to the owner's written instructions,
with such destruction to be certified to the owner in writing by an
officer of such other party. The termination of this Agreement or part
thereof for any reason whatsoever shall not affect any rights or
liabilities that have accrued prior to or upon termination.
3. GRANT OF LICENCE
3.1 In consideration of the promises and mutual covenants and agreements set
forth herein, Acme hereby grants to NS8 a non-exclusive license to
reproduce, digitize, use, publicly display, publicly broadcast, transmit
and distribute the Contents or any part thereof in Thailand, Singapore,
Australia, New Zealand, Taiwan, Hong Kong, and the Philippines on its web
sites and Customers' mobile phones for the commercial purposes described
herein, including the downloading and consumption of the Contents by the
Customers.
3.2 NS8 acknowledges that the Contents and their source codes constitute
valuable trade secrets of Acme. Accordingly, NS8 agrees not to: (a)
modify, adapt, alter, translate, or create derivative works from the
Contents except as expressly permitted herein; (b) sublicense, lease,
rent, loan, or otherwise transfer the Contents to any third party except
as expressly permitted herein; (c) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the source codes of the
Contents.
3.3 NS8 further agrees not to independently, or through its' agents, pursue
or negotiate commercially with Acme's developers, artists, engineers or
other related companies without Acme's written consent.
4. OBLIGATIONS OF ACME
4.1 Acme shall provide NS8 with an initial selection of Contents as listed in
Appendix 1 of this Agreement.
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4.2 Acme warrants that the Content Licensors are the owners of all rights,
title and interest (including intellectual property rights) in the
Contents or are otherwise entitled to the rights thereto, and Acme's
license agreements with the Content Licensors, under which it has or
shall secure all necessary rights of use for the Contents as contemplated
under this Agreement, are or will be legal, valid and binding as at the
launch date of the Contents and shall subsist for the full duration of
this Agreement.
4.3 Acme shall supply the Contents to NS8 in the manner jointly agreed upon
by Acme and NS8; provided that NS8 shall provide to Acme all information
and assistance reasonably required by Acme to supply the Content.
4.4 Acme shall use commercially reasonable efforts to ensure that the
Contents are compatible with current industry standard handsets; and that
it will make available to NS8 updated versions of the Contents as they
become available:
4.5 Acme shall use commercially reasonable efforts to check for and remove
commonly knoZZwn viruses prior to providing the Contents to NS8. Without
prejudice to the aforesaid, Acme shall assist NS8 to resolve any bugs,
errors and/or viruses discovered in the Contents.
5. OBLIGATIONS OF NS8:
5.1 NS8 shall host the Contents on its own servers (or on the servers of a
third party that NS8 has engaged for that purpose) and be responsible for
providing the necessary infrastructure to enable Customers to download
the Contents onto their handsets, unless otherwise agreed in writing.
5.2 NS8 shall be responsible for billing and collecting all downloading
Content Fees from the Customers, either directly or indirectly, for the
use of the Services in accordance with Clause 7.
5.3 NS8 shall test the Contents before they are made available to the
Customers, and shall have the right to reject any Contents that are not
suitable, and in such case, be allowed to select another Content(s) as a
replacement.
6. CHANGES TO THE CONTENTS
NS8 may request Acme to update the Contents on a regular basis and
existing Contents may be deleted and/or new Contents added thereto upon
the mutual agreement of Acme and NS8 and under the same terms of this
Agreement. Any deletion shall be notified to Acme in writing at least
fourteen (14) calendar days prior to such deletion.
7. REVENUE SHARING & REPORTING
7.1 Revenue Sharing
7.1.1 NS8 and Acme shall jointly decide on the Content Fee to be charged to the
Customers for the Services, and NS8 will xxxx the Customers accordingly.
7.1.2 In consideration of the promises and mutual covenants and agreements set
forth herein, the Content Fees derived from the Services shall be shared
between NS8 and Acme in accordance with Appendix 2.
7.2 Reporting
7.2.1 NS8 shall keep full and accurate records with respect to all revenues
sources specified hereunder subject to revenue sharing, and shall compile
a download report of all downloaded Contents for each calendar month
signed by a financial officer of NS8, and submit the report to Acme no
later than by the 15th working day of the following month.
7.2.2 In accordance with the report, Acme shall send an invoice for the
relevant calendar month to NS8.
7.3 Revenue Collection
7.3.1 NS8 shall collect and consolidate the Content Fees from the Services at
the end of each month.
7.3.2 NS8 shall pay Acme the amount due to Acme within thirty (30) days from
the date of NS8's receipt of Acme's invoice. All monies due to Acme shall
be remitted via bank wire transfer or such other methods as may be agreed
between the parties in Singapore dollars.
7.3.3 Acme shall have the right, at its expense, no more than once annually and
covering the same audit period no more than once, to have an outside
accounting firm review the records maintained by NS8 in accordance with
Paragraph 7.2.1 to confirm the accuracy of the payments made hereunder.
Prompt adjustment shall be made by the proper party to compensate for any
discovered overpayments or underpayments.
7.3.4 If NS8 fails to perform the obligations in Clause 7.3.2 above, Acme is
entitled to charge the Licensee interest calculated on a daily basis at
UOB Singapore's prime lending rate plus two percent (2%).
8. WARRANTIES AND INDEMNITIES
8.1 Each party represents and warrants to the other that:
(a) It has the power and right to execute this Agreement and perform
its obligations hereunder, and this Agreement does not conflict
with any other agreement or obligation by which it is bound.
(b) It shall comply with all relevant laws and regulatory
requirements, and obtain and maintain for the duration of this
Agreement all permits and licenses applicable or necessary for the
performance of its obligations hereunder.
8.2 Acme further represents and warrants to NS8 that:
(a) Acme is the owner of all rights, title and interest (including
intellectual property rights) in the Contents or is otherwise
entitled to the rights thereto.
(b) Acme shall supply the Content and perform all services (1) in
accordance with this Agreement and (2) with reasonable care and
skill;
(c) The Contents do not include any material which is harmful,
pornographic, abusive, obscene, threatening, defamatory, seditious
or contrary to public policy, or which encourages illegal
activities or promotes software or services that deliver
unsolicited messages.
(d) The exploitation of the Contents as contemplated under this
Agreement do not and will not violate or infringe upon any laws,
regulatory requirements or codes, or the patent rights,
copyrights, trademarks, service marks, proprietary information,
design rights or other proprietary rights of any third party.
8.3 Both Acme and NS8 shall defend, indemnify and hold harmless the other
party from and against any and all third party claims, damages,
liabilities, costs and expenses, including reasonable legal fees and
expenses, arising out of or relating to the breach of any term,
condition, representation or warranty on its part under this Agreement.
8.4 Acme shall undertake to be fully responsible for all liaisons with the
Content Licensors and to settle any and all disputes involving any of
them and/or any rights holders, and shall defend, indemnify and hold
harmless NS8 from and against any and all claims, damages, liabilities,
costs and expenses (including reasonable legal fees and expenses and any
royalty fees paid by NS8 to any third party), arising out of or relating
to the use of the Contents under this Agreement.
8.5 The indemnities given hereunder shall apply whether or not legal
proceedings are instituted, and if such proceedings are instituted,
irrespective of the means, manner or nature of any settlement, compromise
or determination. The said indemnities shall survive the termination of
this Agreement for a period of two (2) years.
8.7 Notwithstanding the foregoing, a party shall promptly bring to the
attention of the other party, as the case may be, any information coming
to its attention, that the provision of the Services pursuant to this
Agreement may infringe any intellectual property right or other rights of
a third party. In such event, the parties shall mutually decide whether
the provision of the Services in question ought to be suspended until the
matter is resolved.
9. CONFIDENTIALITY
Each party agrees not to, and shall ensure that its directors, officers,
employees, agents and advisors do not, disclose to third parties, any
confidential or proprietary information arising or disclosed pursuant to
this Agreement (including but not limited to the terms of this Agreement,
the parties' trade secrets and information not generally known to the
public, such as business plans, strategies, practices, products,
personnel and finances) (the "Confidential Information") except: (i) with
the prior written permission of the party to whom such information
belongs; (ii) as required by applicable law or regulation or pursuant to
a court order or direction of any government authority or regulatory body
or stock exchange; provided that, the recipient gives the party to whom
such information belongs written notice of same so that party will have
an opportunity to contest any such disclosure; or (iii) where the
information is already known to the recipient, or obtained by independent
means or independently developed, by the recipient, or is already in the
public domain through no fault of the recipient. This clause shall
survive the termination of this Agreement for a period of five years.
10. FORCE MAJEURE
A party will not be liable to the other for any delay in or failure to
perform its obligations as a result of any cause beyond its reasonable
control, including but not limited to causes due to Acts of God, any act
or omission of government or change in legislation, regulation, policy or
guideline, any shortage of material, fire, flood, explosion, power
failure or industrial dispute, and any damage, destruction, corruption,
breakdown, malfunction, mechanical or other defect in its systems or
telecommunications link or components. If such delay or failure continues
for at least one (1) month, the parties will be entitled to forthwith
terminate this Agreement by notice in writing in which event, no party
shall have any claim against the other in respect thereof.
11. COSTS
Each party shall bear its own costs in connection with the execution of
this Agreement and in relation to the fulfillment of its obligations
hereunder.
12. ASSIGNMENT
Neitherparty may assign or transfer all or any of its rights and/or
obligations hereunder without the prior written consent of the other;
provided that either party may assign or transfer all or any of its
rights and/or obligations hereunder to any of its affiliates or related
companies without the consent of the other party.
13. WAIVER AND VARIATION
No failure or delay by a party in exercising any right, power or
privilege to which it is entitled shall operate as a waiver nor shall any
single or partial exercise of any such right, power of privilege preclude
any other or further exercise. The terms of this Agreement may only be
waived or varied by an agreement in writing by the parties.
14. ENTIRE AGREEMENT AND SEVERABILITY
This Agreement supersedes all prior agreements, arrangements and
understandings, whether oral or written, between both parties in relation
to the matters dealt with herein and constitutes the entire agreement and
understanding between both parties. In the event that any provision of
this Agreement or part thereof shall be held void, illegal or
unenforceable, it shall be rendered invalid to that extent but shall in
no way affect or prejudice the remaining provision or other provisions of
this Agreement.
15. NOTICES
All notices required to be given under this Agreement shall be in writing
and delivered by hand, prepaid post, electronic mail with receipt
confirmation, or by facsimile with written confirmation of transmission,
and addressed as follows (or as may be notified by the other party from
time to time):
NS8 Corporation
000 - 0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxxxxx Xxxx, CEO
Email: xxxxxxx@xx0xxxx.xxx
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Fax: x000-000-0000
Acme Mobile Pte Ltd
000X Xxxxx Xxxx Xxxxxx
Xxxxxxxxx 000000
Attn: Xxxx Xxxxxx, CEO
Email: xxx@xxxx-xxxxxx.xxx
Fax no: x00-0000-0000
16. GOVERNING LAW
This Agreement shall be governed by Singapore law and the parties hereby
submit to the exclusive jurisdiction of the Singapore courts.
IN WITNESS WHEREOF, the parties have entered into this Agreement, including all
exhibits and attachments referenced herein, as of the date above written.
SIGNED (for and on behalf of) in the presence of SIGNED (Witness)
ACME MOBILE ACME MOBILE
Signature/Date: Signature/Date:
Xxxx Xxxxxx, Xxxxxx Ee
CEO Director
SIGNED (for and on behalf of) in the presence of SIGNED (Witness)
NS8 CORPORATION NS8 CORPORATION
Signature/Date: Signature/Date:
Xxxxxxx Xxxx, Xxxx Xxxxx
CEO Executive Vice
President
Appendix 1
Initial List of Contents
CONTENT TITLE TYPE of CONTENT
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All Contents appearing on Acme Mobile's catalog website
(xxx.xxxx-xxxxxx.xxx/xxx), pending approval by Acme's Licensors.
Other products may be introduced by Acme following the terms and conditions set
out in this Agreement. The products shall be mutually negotiated and accepted in
writing.
Appendix 2
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Revenue Sharing Model
Distribution Channels:
Terms:
o .
Price per game and Telco (Carrier) Share:
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Channel Retail Price per Game Portion of Retail Price
retained by Telco
(Carrier)
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Additional distribution channels and territories may be introduced by NS8
following the terms and conditions set out in this Agreement. These shall be
mutually negotiated and accepted in writing in an addendum to this Agreement.
The final retail pricing regarding any such additional distribution channels and
territories will be determined and approved in advance by Acme.
Acme and NS8 agree that end-user retail pricing of the games shall be mutually
agreed upon by Acme and NS8.
SIGNED (for and on behalf of) SIGNED (for and on behalf of)
ACME XXXXXX XX0 CORPORATION
Signature/Date: Signature/Date:
Xxxx Xxxxxx, Xxxxxxx Xxxx
CEO CEO
