Exhibit 10.8(6)
LICENSE AND SUPPLY AGREEMENT
This License and Supply Agreement ("Agreement") is entered into this 25th day of
February, 2002 ("Effective Date") by and between Motorola, Inc., a Delaware
corporation having a place of business at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 ("Motorola") and PTN Media Inc., a Michigan
corporation having a principal place of business at 0000 Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx 00000 ("PTN Media"). Motorola and PTN Media are each sometimes referred
to herein as a "Party" and collectively as the "Parties".
RECITALS
WHEREAS, Motorola is a manufacturer of wireless phone products that have
removable and replaceable faceplates and battery doors;
WHEREAS, PTN Media has acquired certain rights to the trademarks and rights
of publicity owned by recording artist Xxxxxxxxx Xxxxxxxx, including the rights
to sublicense such trademarks and rights of publicity;
WHEREAS, PTN Media desires to sublicense its rights in the rights of
publicity and trademarks of Xxxxxxxxx Xxxxxxxx to Motorola to allow Motorola to
manufacture or have manufactured and sell or have sold to PTN Media only an
aftermarket accessory kit ("Kit") for Motorola's phone products that includes at
least a phone faceplate and/or battery door bearing the name, image, likeness
and/or endorsement of Xxxxxxxxx Xxxxxxxx and packaging materials bearing the
trademarks and/or the image, name, likeness and/or endorsement of Xxxxxxxxx
Xxxxxxxx;
WHEREAS, PTN Media desires to buy from Motorola or a mutually agreed upon
third party and Motorola desires to sell or have sold to PTN Media such Kit and
authorize PTN Media as a distributor of such Kit in certain retail channels;
NOW THEREFORE, in consideration of the foregoing premises, and mutual
covenants, promises and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, with the intention to be legally bound hereby, the Parties agree
as follows:
TERMS AND CONDITIONS
1. Definitions. The following terms shall be defined as follows for the
purposes of this Agreement:
1.1 "Xxxxxxxxx Xxxxxxxx'x Property Rights" shall mean all worldwide rights
in and to (a) all trademarks owned by Xxxxxxxxx Xxxxxxxx; and (b)
Xxxxxxxxx Xxxxxxxx'x name, image, likeness, endorsement and/or other
rights of publicity.
1.2 "Daltek" shall mean Daltek Inc. of Dalton, Georgia U.S.A.
1.3 "F.O.B. Point" shall mean the shipping dock of Daltek
1.4 "Kit" shall mean the aftermarket accessory kit for Motorola's phone
products that (a) has been approved for distribution and sale by PTN
Media and Motorola, (b) bears one or more Motorola trademarks, and (c)
includes (i) a phone faceplate and/or battery door that includes
Xxxxxxxxx Xxxxxxxx'x name, image, likeness, and/or endorsement; and
(ii) packaging materials bearing the trademarks and/or the image,
name, likeness and/or endorsement of Xxxxxxxxx Xxxxxxxx, and/or
Motorola.
2. License. PTN Media hereby grants to Motorola, during the term of this
Agreement, a worldwide, royalty-free, non-exclusive license of PTN Media's
rights in and to Xxxxxxxxx Xxxxxxxx'x Property Rights to (a) manufacture or
have manufactured the Kit; (b) sell or have sold the Kit to PTN Media; and
(c) advertise or otherwise promote PTN Media's sales of the Kit.
3. Products and Prices. This Agreement is for sales of Kits only and does not
create any obligation on Motorola with respect to any other products or
services of Motorola. The parties agree that PTN Media will purchase Kits,
subject to availability, from Daltek. In the event that Motorola decides to
supply the Kits directly to PTN Media at some time in the future, the
Parties will amend this Agreement to reflect the volumes, prices, payment
terms, and approximate delivery times relating to Motorola's direct supply
of the Kits. Motorola, Daltek or another mutually agreed upon third party
will package each Kit, at their own expense, in retail packaging that will
be mutually agreed upon by both Parties.
4. Worldwide Sales. PTN Media may resell the Kits worldwide. If PTN Media
sells Kits through PTN Media's web site or catalog, PTN Media agrees to
sell the Kits to end-user customers only in mutually agreed upon packaging.
5. Channels/Accounts. PTN Media may sell the Kits to any retail customers or
in any retail channels only.
6. Purchases. All purchase orders by PTN Media will be submitted to Daltek or
as otherwise agreed upon by the Parties.
7. Construction. Any change to the terms and conditions of this Agreement must
be made in the form of an amendment signed by both Parties. Terms and
conditions specified in purchase orders, invoices or other writings are
subordinate to and shall not alter the terms and conditions of this
Agreement in any manner.
8. Delivery. Except as otherwise agreed in writing by the Parties or by PTN
Media and Daltek, all deliveries will be made to PTN Media at the F.O.B.
Point. Title to the Kits sold will pass to PTN Media at the F.O.B. Point.
PTN Media will be invoiced for freight charges unless otherwise agreed by
Daltek.
9. Force Majeure. Neither Party shall be liable for any delay or failure to
perform due to any cause beyond its reasonable control. Causes include, but
are not limited to, strikes, acts of God, interruptions of transportation
or inability to obtain necessary labor, materials or facilities, or default
of any supplier. Notwithstanding the foregoing, in the event either Party
is unable to wholly or partially perform for a period greater than
forty-five (45) calendar days because of any cause beyond its control,
either Party may terminate any delayed order without any liability.
10. Intellectual Property.
10.1 Notwithstanding any provision of this Agreement to the contrary, each
Party shall retain all rights in their respective intellectual
property and any proprietary materials. Except as expressly provided
under this Agreement, no license under any patents, copyrights, trade
secrets or any other intellectual property rights, express or implied,
are granted by either Party under this Agreement.
10.2 As between PTN Media and Motorola, in the event that intellectual
property is created jointly by employees or individuals acting on
behalf of either Party, these joint proprietary materials are, and
shall at all times remain, the joint property of Motorola and PTN
Media, including without limitation, all worldwide intellectual
property rights embodied in, related to, or represented by such joint
proprietary materials. Each Party shall be free to use the jointly
owned intellectual property without requiring the consent of the other
Party or providing an accounting to the other Party, except to the
extent that such joint materials include the trademark(s) of either
Party or the intellectual property rights of third parties, including
Xxxxxxxxx Xxxxxxxx, in which case written approval of the appropriate
property owner or licensee must be obtained prior to using the joint
materials. However, neither Party shall license or assign its rights
in the jointly owned intellectual property to third parties without
the prior written consent of the other Party.
11. Warranty.
11.1 To PTN Media. Motorola warrants that each faceplate and battery door
forming part of a Kit will be free from defects in material and
workmanship, and will meet the product's applicable specifications.
The duration of such warranty is for a period of one (1) year from the
date of delivery of the Kit to PTN Media at the F.O.B. Point.
Motorola's sole and exclusive obligation hereunder is to issue credit
or replace, in Motorola's sole discretion, any faceplate or battery
door sold hereunder with any defect warranted against, provided that
Motorola receives notice of the defect during the one-year warranty
period and any defective faceplates or battery doors are returned to
Motorola at a location to be designated by Motorola. All return
handling is to be handled exclusively via PTN Media. This one-year
warranty is the complete and total warranty for faceplates or battery
doors manufactured by or on behalf of Motorola. Motorola does not
warrant the installation, maintenance, decorating or service of the
Kits. Motorola disclaims any and all liability for damage caused by
equipment, including packaging, not furnished by Motorola, which is
attached to, or used in conjunction with, the Kits or any portion
thereof. Motorola shall also not be responsible for any damage caused
by PTN Media or its carrier during transportation of the Kits for
resale to PTN Media's customers. Motorola's warranty applies to
warrantable defects only and does not apply to repairs or replacements
necessitated by catastrophe, misuse, abuse, accident, fault or
negligence of PTN Media or others. Any faceplate or battery door
returned to Motorola during the warranty period that is determined to
be free of any warrantable defects in material and workmanship and to
conform to the applicable Motorola specifications shall be returned to
PTN Media at PTN Media's expense. EXCEPT AS STATED ABOVE, MOTOROLA
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR BREACH OF WARRANTY
EVEN IF MOTOROLA HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH
DAMAGES AND EVEN IF SUCH DISCLAIMER FRUSTRATES THE ESSENTIAL PURPOSE
OF THIS AGREEMENT.
11.2 To End-User. Motorola warrants each faceplate and battery door to the
end-user or consumer only in accordance with the Limited Warranty
included with the faceplate and battery door (as such Limited Warranty
may be revised by Motorola from time to time to be applicable to Kits
shipped by Motorola on or after the effective date of the revision),
and makes no representation or warranty of any other kind, express or
implied. EXCEPT AS OTHERWISE PROVIDED IN THE LIMITED WARRANTY,
MOTOROLA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Other Representations and Warranties.
12.1 By PTN Media. PTN Media hereby represents and warrants to Motorola
that: (i) PTN Media has the power and authority to enter into and
perform its obligations according to the terms of this Agreement; (ii)
PTN Media has no restrictions that would impair its ability to perform
its obligations and grant all rights contemplated by this Agreement;
(iii) PTN Media has not and will not enter into any agreement that is
inconsistent with its obligations hereunder; (iv) PTN Media has
obtained and currently holds valid and sufficient rights, including
rights in Xxxxxxxxx Xxxxxxxx'x Property Rights, to license the rights
granted to Motorola herein; and (v) the content of the Kit and the
distribution thereof shall comply with all applicable federal, state,
and local laws and regulations.
12.2 By Motorola. Motorola hereby represents and warrants to PTN Media that
Motorola: (i) has the power and authority to enter into and perform
its obligations according to the terms of this Agreement; (ii) has no
restrictions that would impair its ability to perform its obligations
contemplated by this Agreement; and (iii) has not and will not enter
into any agreement that is inconsistent with its obligations
hereunder.
13. Technical Assistance. In the event that Motorola renders technical advice,
facilities and/or services to PTN Media in connection with PTN Media's
purchase, use or distribution of any Kits, Motorola's faceplate and battery
door warranty shall remain solely as provided and limited under Section 11,
and Motorola shall incur no liability associated with the rendering of such
advice, facilities and/or services. Motorola provides any such technical
advice, facilities, and/or services "AS IS" and PTN Media accepts any such
advise, facilities and/or services at its own risk.
14. Motorola Intellectual Property Indemnity.
14.1 Motorola agrees to defend, at its expense, any suits against PTN Media
based upon a claim that any faceplate or battery door furnished
hereunder by Motorola or Daltek directly infringes a valid U.S. patent
or copyright or misappropriates a trade secret and to pay costs and
damages finally awarded based upon such claim in any such suit,
provided that: (1) such claim is not subject to PTN Media's indemnity
obligation as set forth in Section 16 below; (2) Motorola is promptly
notified by PTN Media in writing as soon as reasonably practicable
after PTN Media first becomes aware of the claim of infringement or
misappropriation, but in no event later than fifteen (15) calendar
days of the date on which PTN Media first received notice of such
claim; and (3) at Motorola's request and expense, Motorola is given
sole control of the suit and all requested assistance for defense of
same through appeal. Motorola shall not be liable for any settlement
made without its written consent. If the use or sale of any
faceplate(s) or battery door(s) furnished under this Agreement is
enjoined as a result of such suit, Motorola at its option and at no
expense to PTN Media, will: (1) obtain for PTN Media the right to use
or sell such faceplate(s) or battery door(s); (2) substitute an
equivalent product reasonably acceptable to PTN Media and extend this
indemnity thereto, or (3) accept the return of the Kit(s) and
reimburse PTN Media the purchase price thereof, less a reasonable
charge for prior use, if any, of the Kit(s). If the infringement is
alleged prior to completion of delivery of the Kit(s), Motorola shall
have the right to decline or require Daltek to decline to make further
shipments without being in breach of this Agreement.
14.2 This indemnity does not extend to any suit based upon any infringement
or alleged infringement arising from faceplate(s) or battery door(s)
furnished by Motorola or Daltek that are: (1) altered in any way by
PTN Media or any third party if the alleged infringement would not
have occurred but for such alteration and Motorola did not authorize
such alteration; (2) combined with any other products or elements not
furnished by Motorola if the alleged infringement would not have
occurred but for such combination and Motorola did not authorize such
combination; or (3) designed and/or manufactured in accordance with
PTN Media's designs, specifications, or instructions if the alleged
infringement would not have occurred but for such designs,
specifications, or instructions. In no event shall Motorola indemnify
PTN Media or be liable in any way for royalties payable based on a per
use basis, or customer revenues derived by PTN Media therefrom, or any
royalty basis other than a reasonable royalty based upon revenue
derived by Motorola from PTN Media from sales or license of the
infringing faceplate(s) or battery door(s).
14.3 THE INDEMNITY PROVIDED IN THIS SECTION 14 IS THE SOLE, EXCLUSIVE, AND
ENTIRE LIABILITY OF MOTOROLA AND THE REMEDIES PROVIDED IN THIS SECTION
14 SHALL BE PTN MEDIA'S EXCLUSIVE REMEDIES AGAINST MOTOROLA FOR
INTELLECTUAL PROPERTY INFRINGEMENT, OR TRADE SECRET MISAPPROPRIATION,
WHETHER DIRECT OR CONTRIBUTORY, AND IS PROVIDED IN LIEU OF ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY IN REGARD THERETO,
INCLUDING, WITHOUT LIMITATION, THE WARRANTY AGAINST INFRINGEMENT
SPECIFIED IN THE UNIFORM COMMERCIAL CODE.
15. Motorola's Product Liability Indemnity.
15.1 Motorola agrees to defend, at its expense, any suits against PTN Media
based upon a claim by a third party that a material defect in any
faceplate(s) or battery door(s) furnished hereunder by Motorola or
Daltek caused death or bodily injury to such third party and to pay
costs and damages finally awarded based upon such claim in any such
suit; provided that Motorola is: (1) notified by PTN Media in writing
within fifteen (15) calendar days of the date on which PTN Media first
received notice of the claim; and (2) at Motorola's request and
expense, given sole control of the suit and all requested assistance
for defense of same through appeal. Motorola shall not be liable for
any settlement made without its written consent.
15.2 This indemnity does not extend to any suit based upon death or bodily
injury arising from faceplate(s) or battery door(s) furnished by
Motorola or Daltek that are: (1) altered in any way by PTN Media or
any third party if the alleged death or bodily injury would not have
occurred but for such alteration and such alteration was not
authorized by Motorola; (2) combined with any other products or
elements not furnished by Motorola if the alleged death or bodily
injury would not have occurred but for such combination and such
combination was not authorized by Motorola; or (3) designed and/or
manufactured in accordance with PTN Media's designs, specifications,
or instructions if the alleged death or bodily injury would not have
occurred but for such designs, specifications or instructions.
15.3 THE INDEMNITY PROVIDED IN THIS SECTION 15 IS THE SOLE, EXCLUSIVE, AND
ENTIRE LIABILITY OF MOTOROLA AND THE REMEDIES PROVIDED IN THIS SECTION
15 SHALL BE PTN MEDIA'S EXCLUSIVE REMEDIES AGAINST MOTOROLA FOR CLAIMS
BY THIRD PARTIES FOR DEATH OR BODILY INJURY AND IS PROVIDED IN LIEU OF
ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY IN REGARD THERETO.
16. PTN Media's General Indemnity. PTN Media shall indemnify and hold harmless
Motorola, its affiliates and subsidiaries, and its and their respective
officers, directors, employees, agents, customers, successors and assigns
(each an "Indemnified Party") from and against any judgments, losses,
damages, liabilities, costs or expenses (including, but not limited to,
reasonable attorneys' fees and legal expenses) of any kind incurred by an
Indemnified Party and associated with or arising from: (i) any breach or
claimed breach of PTN Media's representations and warranties; and (ii) any
third party claim or action brought against an Indemnified Party alleging
that any content of the Kit supplied by PTN Media, including without
limitation any image, likeness, name, or endorsement of Xxxxxxxxx Xxxxxxxx
(a) infringes, misappropriates or violates in any manner, any intellectual
property right, right of publicity, right of privacy, moral right, or any
other proprietary right of a third party; or (b) contains material or
information that is fraudulent, deceptive, misleading, obscene, defamatory,
trade libelous, libelous, slanderous, or unlawfully harassing or injurious,
or is in violation of personal or property rights, regulation or law, or
other common law or statutory rights. The foregoing indemnity will be in
addition to, and not in lieu of, all other legal rights and remedies that
Motorola may have. PTN Media agrees that it will, upon Motorola's request
and at PTN Media's expense, defend or assist Motorola in the defense of any
action brought against Motorola for which PTN Media has an indemnity
obligation hereunder.
17. Limitation of Liability. EXCEPT FOR THIRD PARTY CLAIMS ARISING UNDER
SECTION 14 OR 15, MOTOROLA'S TOTAL LIABILITY FOR ANY AND ALL COSTS,
DAMAGES, CLAIMS, INDEMNIFIABLE CLAIMS, OR LOSSES WHATSOEVER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR KIT(S) SUPPLIED UNDER THIS
AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT RECEIVED BY MOTOROLA FROM PTN
MEDIA OR DALTEK IN CONNECTION WITH THE KITS PURCHASED BY PTN MEDIA WITH
RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED, AND IN NO EVENT SHALL
MOTOROLA BE LIABLE TO PAY PTN MEDIA OR ANYONE CLAIMING ON BEHALF OF PTN
MEDIA ANY AMOUNTS IN EXCESS OF SUCH AMOUNT. IN NO EVENT WILL MOTOROLA BE
LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INCIDENTAL,
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE,
COMMERCIAL LOSS, OR LOST PROFITS, SAVINGS, OR REVENUES TO THE FULL EXTENT
SUCH MAY BE DISCLAIMED BY LAW.
18. Logos And Trademarks. In order that each Party may protect its trademarks,
trade names, corporate slogans, corporate logo, product designations, and
the goodwill associated with the foregoing, neither Party will have any
right to use the trademarks, trade names, corporate slogans, corporate logo
or product designations of the other Party in the sale, lease, distribution
or advertising of any products of the other Party or on any product
container, component part, business forms, sales, advertising and
promotional materials, as a part of an Internet domain name or on or in
connection with other business supplies or materials, whether in writing,
orally or otherwise, except with the express prior written consent of such
other Party.
19. Party Relationship. Each Party will be deemed to be an independent
contractor and not an agent, joint venturer, or representative of the
other, and neither Party may create any obligations or responsibilities on
behalf of or in the name of the other. Under no circumstances may either
Party hold itself out to be a partner, employee, franchisee,
representative, servant or agent of the other Party. Neither Party will
impose or create any obligation or responsibility, express or implied, or
make any promises, representations or warranties on behalf of the other
Party, other than as expressly provided herein.
20. Covenant Not to Compete.
20.1 By PTN Media. PTN Media shall not, during the term of this Agreement
and for a period of six (6) months following the termination or
expiration of this Agreement, license any of its rights in or to
Xxxxxxxxx Xxxxxxxx'x Property Rights to any wireless service providers
or any third party manufacturer or seller of wireless phone products
without first obtaining Motorola's prior written consent thereto.
20.2 By Motorola. Motorola shall not, during the term of this Agreement and
for a period of six (6) months following the termination or expiration
of this Agreement, manufacture or have manufactured, sell or have
sold, or distribute or have distributed a faceplate and/or a battery
door for use with Motorola's i50sx(TM) cellular phone that includes
the name, image and/or likeness of any pop music female recording
artist whose recordings are primarily purchased by consumers in the
fifteen (15) to twenty (20) age group, without first obtaining PTN
Media's prior written consent thereto.
21. Protection of Business.
21.1 PTN Media agrees that it will not in any manner use its knowledge of
Motorola's business for the benefit of any other party or divulge to
others information or data concerning Motorola's business affairs,
including the names of customers, names of employees, number or
character of contracts, marketing strategies and prices, terms or
particulars of Motorola's business. PTN Media will, in all things and
in good faith, protect the good will of Motorola's business and keep
confidential its knowledge of such business affairs acquired prior to
and during the terms of this Agreement.
21.2 Motorola agrees that it will not in any manner use its knowledge of
PTN Media's business for the benefit of any other party or divulge to
others information or data concerning PTN Media's business affairs,
including the names of customers, names of employees, number or
character of contracts, marketing strategies and prices, terms or
particulars of PTN Media's business. Motorola will, in all things and
in good faith, protect the good will of PTN Media's business and keep
confidential its knowledge of such business affairs acquired prior to
and during the terms of this Agreement.
22. Waiver. The failure of either Party to insist, in any one or more
instances, upon the performance of any of the terms or conditions herein or
to exercise any right hereunder will not be construed as a waiver or
relinquishment of the future performance of any such terms or conditions or
the future exercise of such right, but the obligation of the other Party
with respect to such future performance will continue in full force and
effect.
23. Term and Termination. The term of this Agreement will be one (1) year from
the Effective Date. Nothing contained in this Agreement will be deemed to
create any express or implied obligation on either Party to renew or extend
this Agreement or to create any right to continue this Agreement on the
same terms and conditions contained herein. Either Party may terminate this
Agreement at will upon sixty (60) calendar days prior written notice to the
other Party. Additionally, either Party may terminate this Agreement
immediately if the other Party: (i) assigns any of its rights under this
Agreement or materially violates the provisions of Sections 4, 21, 29 or 30
herein; (ii) if applicable, fails to make any payment when due and fails to
cure such breach within ten (10) calendar days after written notice
thereof; (iii) makes an assignment for the benefit of its creditors, or a
receiver, trustee in bankruptcy or similar officer is appointed to take
charge of its assets; (iv) files for relief under state or federal
bankruptcy laws or has an involuntary petition filed against it not
dismissed within thirty (30) calendar days; (v) discloses terms of this
Agreement in violation of Section 31 below; or (vi) has a change in its
ownership.
24. Effect of Termination. Upon the effective date of the termination of this
Agreement for any reason: (i) Motorola may, if Motorola is directly
supplying Kits to PTN Media, cancel all of PTN Media's unshipped orders for
Kits, regardless of previous acceptance; (ii) all amounts due from one
Party to the other, if any, shall become immediately due and payable; and
(iii) Motorola shall have no liability for any damages or compensation due
to termination of this Agreement, including, without limitation, possible
claims under state franchise law, claims for loss of present or future
profits, reimbursement for any investments or expenditures made in
connection with this Agreement, or for any goodwill of a business.
25. Survival of Terms. The terms, provisions, representations and warranties
contained in this Agreement that by their sense and context are intended to
survive the performance thereof by either or both Parties will so survive
the completion of performances and termination of this Agreement,
including, without limitation, both Party's indemnification obligations
arising under Sections 14, 15 and 16, the limitation of liability set forth
in Section 17, and the making of any and all payments due under this
Agreement.
26. Government Sales. In the event that PTN Media elects to sell Kits to a
governmental entity, PTN Media does so solely at its own option and risk.
Except as Motorola expressly accepts specific terms in writing, Motorola
makes no representations with respect to the ability of its goods, services
or prices to satisfy any statutes, regulations, or provisions relating to
such governmental sales.
27. Dispute Resolution. The Parties agree that any claims or disputes will be
submitted to non-binding mediation prior to initiation of any formal legal
process; provided, however, that this provision shall not preclude either
Party from resorting to judicial proceedings if: (i) good faith efforts to
resolve the dispute under mediation are unsuccessful; or (ii) the claim or
dispute relates to intellectual property rights; or (iii) interim relief
from a court is necessary to prevent serious and irreparable injury to the
Party or to third parties.
28. Notices. All notices required under this Agreement will be sent by fax,
overnight courier or registered or certified mail to the appropriate Party
at its address stated below (or to a new address if the other Party has
been properly notified of the change):
If to Motorola:
Motorola, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn.: Vice President and Director of U.S. Market Operations,
iDEN Subscriber Group
Fax: (000) 000-0000
With a copy to:
Motorola, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn.: Law Department
Fax: (000) 000-0000
If to PTN Media:
PTN Media Inc.
000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 00
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (___) _____________
A notice will not be effective until the addressee actually receives it.
Either Party may change its address by a notice given to the other Party in
the manner set forth above.
29. Ethical Conduct. Both Parties will refrain from activities that are
illegal, unethical or which might bring either Party or the Kits into
disrepute, or which might constitute or represent a serious conflict of
interest, or which might give the appearance of impropriety. Both Parties
will cooperate fully in any investigation or evaluation of such matters.
Breach of this obligation by either Party will entitle the non-breaching
Party to terminate this Agreement immediately without liability.
30. Compliance with Laws. PTN Media and Motorola agree to comply with all laws
and regulations including those dealing with the sale and distribution of
the Kits purchased under this Agreement. PTN Media further agrees to comply
with all United States laws and regulations regarding export licenses, or
the control or regulation of export or re-export of Kits or technical data
sold or supplied to PTN Media. Without limiting the generality of this
provision, PTN Media specifically agrees not to sell any Kits covered by
this Agreement to any party if such sale would constitute a violation of
any law or regulation of the United States.
31. Publicity. Neither Party shall issue a publicity release or other press
announcement publicizing the terms or the existence of this Agreement to
any third party without prior written consent from the other Party after
that Party's review and approval of the form and content of such publicity
release or other press announcement, which approval shall not be
unreasonably withheld or delayed. PTN Media shall not imply or state to any
person or entity that it is sponsored by, funded by, or in any way
associated with Motorola other than as authorized by Motorola pursuant to
this Agreement. Similarly, Motorola shall not imply or state to any person
or entity that it is sponsored by, funded by, or in any way associated with
PTN Media other than as authorized by PTN Media pursuant to this Agreement.
Notwithstanding the foregoing, a Party may disclose the terms or the
existence of this Agreement upon order of a court of competent jurisdiction
or as otherwise required by law subject to first providing the other Party
hereto with prompt written notice of any such court order or other legal
requirement to allow the other Party to seek relief from such order or
requirement. In the event that a Party breaches the provisions of this
Section 31, the other Party may immediately terminate this Agreement.
32. General. Except as otherwise expressly permitted hereunder, no alterations
or modifications of this Agreement will be binding upon either PTN Media or
Motorola unless made in writing and signed by an authorized representative
of each Party. If any term or condition of this Agreement will to any
extent be held by a court or other tribunal to be invalid, void or
unenforceable, then that term or condition will be inoperative and void
insofar as it is in conflict with law, but the remaining rights and
obligations of the parties will be construed and enforced as if this
Agreement did not contain the particular term or condition held to be
invalid, void or unenforceable. PTN Media may not assign any of its rights
or obligations under this Agreement or appoint any subdealers or other
agents or representatives (other than its employees) to distribute and
market the Kits without Motorola's prior written approval. Motorola may not
assign its rights or obligations under this Agreement to any third party
without PTN Media's prior written consent. This Agreement will be governed
by the laws of the State of Illinois, without regard to the conflicts of
laws rules of such State. This Agreement may be executed in two or more
counterparts, each of which, when so executed, shall be deemed an original,
but all of which counterparts together shall constitute one and the same
document.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives.
MOTOROLA, INC. by and through its PTN MEDIA INC.
iDEN Subscriber Group
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxx
------------------------------- -------------------------------
Title: Vice President & Director Title: Chairman and CEO
------------------------------ ------------------------------
Date: /s/ Xxxxx Xxxxxxxxx Date: February 25, 2002
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