EXHIBIT 10.41
MASTER PORTING AGREEMENT
This Master Porting Agreement (this "Agreement") is made effective as of
July 27, 2001 (the "Effective Date") by and between HIGH SPEED NET SOLUTIONS,
INC., d/b/a Summus, a Florida corporation located at 000 Xxxxxxxxxxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, XX 00000, U.S.A. ("HSNS") and SAMSUNG ELECTRONICS
AMERICA, a corporation located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, XX
00000, X.X.X. ("Samsung").
WHEREAS, HSNS has developed certain proprietary data compression
technology and solutions;
WHEREAS, Samsung has developed and/or markets and sells certain products
that could utilize such data compression technology and solutions; and
WHEREAS, Samsung desires to have, and HSNS agrees to make, certain of
HSNS's technology available for certain of Samsung's products.
NOW THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
HSNS and Samsung agree as follows:
1. DEFINITIONS
1.1 "Confidential Information" means information that the disclosing party
designates as confidential or which, under the circumstances surrounding
disclosure, ought to be treated as confidential. Confidential Information
includes, without limitation: (i) trade secrets relating to the disclosing
party's product plans, designs, costs, prices and names, finances,
marketing plans, business opportunities, personnel, research and
development, and know-how; (ii) the HSNS Technology; (iii) the Samsung
Technology; and (iv) the terms, conditions and existence of this
Agreement. "Confidential Information" shall not include information that
the receiving party can demonstrate through competent evidence: (a) is or
becomes generally available to the public other than as a result of
unauthorized disclosure by the receiving party; (b) is known and has been
reduced to tangible form by the receiving party at the time of disclosure
and is not subject to restriction; (c) that is independently developed by
the receiving party without the use of or reference to any Confidential
Information from the disclosing party; (d) is lawfully obtained from a
third party that has the right to make such disclosure; or (e) is made
generally available by the disclosing party without restriction on
disclosure. For the purpose of the foregoing exceptions, disclosures which
are specific as to engineering and design practices and techniques,
products, software, operating parameters and know-how shall not be deemed
to be within the foregoing exceptions merely because they are embraced by
general disclosures which are in the public domain or in the possession of
the receiving party. In addition, any combination of features shall not be
deemed to be within the
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foregoing exceptions merely because individual features thereof are in the
public domain or in the possession of the receiving party, but only if the
combination itself and its principle of operation are in the public domain
or in the possession of the receiving party. When Confidential Information
is disclosed in written or other tangible form, it shall be clearly marked
with a legend identifying it as confidential. Also, if disclosed in oral
or intangible form, Confidential Information shall be identified as
confidential in accordance with the terms of the applicable Services
Schedule.
1.2 "Deliverables" means all various beta and final versions of a Ported
Object, supporting documentation, and work product resulting from the
Services, set forth in the applicable Services Schedule.
1.3 "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 new material which may be
protected by copyright, patent and/or trade secret.
1.4 "Error(s)" 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 defined in Exhibit A.
1.5 "HSNS Technology" means HSNS's proprietary technology, which is to be
applied to a Port, the Specifications, and the Deliverables, and
associated development and testing tools, testing strategy, and
documentation and user guides as set forth on any Services Schedule.
1.6 "Independent Contractor" means any third party consultant, independent
contractor, or temporary employee, of a party hereto, under written
agreement with a party hereto to develop, complete, or assist with a Port
under this Agreement or any Services Schedule, where such written
agreement is consistent with the terms and conditions of this Agreement
including, but not limited to, Sections 4 and 6.
1.7 "Port" means the modification and/or optimization of existing software to
run on a specific processor in a specific operating environment and meet
specific requirements.
1.8 "Ported Object" means the object code or library resulting from a Port.
1.9 "Porting Team" means the specific facility, development tools, and
personnel required to complete a Port. Personnel assigned to a Porting
Team may include solely HSNS personnel or both HSNS and Samsung personnel
as determined by the parties and set forth in the applicable Services
Schedule.
1.10 "Product" means a specific Samsung consumer product, family of products,
or a specific Samsung processor.
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1.11 "Requirements" means the requirements for the Services, as set forth in
any Services Schedule attached hereto.
1.12 "Samsung Technology" means Samsung's proprietary technology, including,
without limitation, any Product, which is the specific target of a Port as
set forth on any Services Schedule.
1.13 "Services" means (i) the design, development and testing services
applicable to the Ported Object(s) and relevant documentation in
accordance with the Specifications and (ii) the delivery of the
Deliverables, as set forth in any Services Schedule.
1.14 "Services Schedule" means each schedule that may be attached hereto from
time to time pursuant to Section 2.1, which sets forth the Services,
Requirements, and Specifications for a specific Port.
1.15 "Specifications" means the flow down specification interpretations of the
Requirements as they apply to the specific modifications, optimizations,
parameterizations, and interfaces required in the Ported Object(s) to meet
the Requirements, as set forth in any Services Schedule. Specifications
are also the baselines against which testing will be performed.
2. DEVELOPMENT
2.1. Services Schedule. In the event that the parties hereto shall reach
agreement with respect to a particular Port, a Services Schedule for said
Port shall be attached to this Agreement and the two shall collectively,
independent from other Services Schedules, constitute the entire agreement
for the specific Port. No Services Schedule shall be attached to this
Agreement without first being executed by the parties hereto. To the
extent that any terms set forth in a Services Schedule shall conflict with
the terms set forth in this Agreement, the terms of this Agreement shall
control unless otherwise specifically set forth in the Services Schedule.
2.2 Services. HSNS hereby agrees to provide the Services for Samsung, as set
forth in each Services Schedule attached hereto.
2.3 Porting Team. HSNS shall provide the facilities and assign personnel to
each Porting Team under a Services Schedule. Samsung shall provide the
development tools and, to the extent requested or required by HSNS,
personnel to the Porting Team under a Services Schedule.
2.4 Acceptance.
2.4.1 For software code Deliverables under any Services Schedule, Samsung
shall evaluate the beta and final version of each Deliverable and
shall submit a written acceptance or rejection to HSNS within twenty
(20) business days after Samsung's receipt of the beta version of
the Deliverables and thirty (30) days after receipt of the final
version of the Deliverables. Acceptance shall be in writing, and
Samsung shall not unreasonably withhold its acceptance. If Samsung
identifies Errors in any Deliverable prior to acceptance, then the
applicable Porting Team shall correct such Errors within fourteen
(14) days
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following receipt of notice thereof during acceptance testing for
the particular Deliverable and within the time specified in Exhibit
A with respect to Errors discovered after acceptance testing for the
Deliverables.
2.4.2 For documentation or report Deliverables under any Services
Schedule, Samsung shall evaluate each version of such Deliverable.
In the event that it requires corrections, Samsung shall specify the
corrections needed and the applicable Porting Team shall deliver an
amended version of such documentation within five (5) business days.
2.4.3 If the applicable Porting Team fails to deliver any Deliverable
within the dates specified in the applicable Services Schedule and
if any Errors discovered before acceptance cannot be eliminated in
the correction period specified in Sections 2.4.1 and 2.4.2 above,
then Samsung may, at its option: (i) extend the correction period or
(ii) suspend its performance and/or terminate such Services Schedule
for cause pursuant to Section 8.3, provided, however, that Samsung
need not provide HSNS the cure period specified in Section 8.3.
2.5 Design Review and Specifications Changes. HSNS understands that there may
be additions, deletions or other changes that may affect the Requirements
at any time during the term of this Agreement. In the event that HSNS is
requested by Samsung or required to perform services beyond those, which
are specifically set forth in a Services Schedule, any such additional
services and a compensation schedule therefor shall be mutually agreed
upon by the parties in writing prior to the provision of said services.
Said mutually agreed upon writing shall be an amendment to the pertinent
Services Schedule and appended thereto, and the services set forth therein
shall be deemed to be Services as the term is used in this Agreement.
3. PAYMENT FOR SERVICES
3.1 Payments. Except as otherwise expressly provided in a payment schedule
attached to an applicable Services Schedule, HSNS shall submit to Samsung
an invoice, on a monthly basis, describing the Services performed in
connection with each Port, individually, and, where applicable, costs
incurred, for each preceding month, and Samsung shall pay each such
invoice within thirty (30) days of receipt.
3.2 Payment upon Termination. In the event any Services Schedule, or this
Agreement, is terminated by Samsung pursuant to Section 8 of this
Agreement, including a termination under Section 2.4.3 above, HSNS shall
be compensated for all fees and costs incurred for actual work performed
under each terminated Services Schedule(s) prior to the date HSNS receives
notice of such termination. Additionally, HSNS shall be reimbursed for any
and all non-cancelable third party obligations related to such terminated
Services Schedule(s) that are incurred prior to HSNS's receipt of notice
of such termination, provided that HSNS shall use its best efforts to
mitigate same. Any funds paid by Samsung to HSNS, which shall be shown by
Samsung to be unearned at the date of termination shall be returned to
Samsung within thirty (30) days of any Services Schedule termination.
Certain Services of HSNS may require greater
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utilization of resources at the outset such that compensation based on a
percentage of the Services completed prior to HSNS completing the full
Services set forth in a Services Schedule would work to the detriment of
HSNS. Accordingly, the parties agree that in the event of early
termination by Samsung, compensation for partially completed Services
shall be made on a time and materials basis.
4. OWNERSHIP RIGHTS
4.1 HSNS.
4.1.1 HSNS shall own all right, title, and interest in and to all HSNS
Technology, HSNS Confidential Information, all Derivative Technology
created from, based on, or related to any of the foregoing, by
whomever made, and all intellectual property rights thereto. In the
event that any Samsung personnel make a contribution to the HSNS
Technology, HSNS Confidential Information, or any Derivative
Technology created from, based on, or related to any of the
foregoing, including, without limitation, all rights in and to any
inventions and designs embodied in any of the foregoing
(collectively, a "Samsung Contribution"), Samsung shall assign, and
hereby does assign, its entire right, title, and interest in and to
each Samsung Contribution to HSNS.
4.1.2 Samsung agrees to assist HSNS, or HSNS's designee, at HSNS's
expense, to obtain and from time to time enforce and defend HSNS's
rights in and to each Samsung Contribution, and any copyrights,
patents or other intellectual property rights relating thereto, in
any and all countries, and to execute all documents reasonably
necessary for HSNS to do so.
4.1.3 Samsung agrees that if HSNS is unable, because of Samsung's
unavailability, dissolution, or for any other reason, to secure any
Samsung's signature to apply for or to pursue any application for
any United States or foreign patents or copyright registrations
covering any Samsung Contribution, then Samsung hereby irrevocably
designates and appoints HSNS and HSNS's duly authorized officers and
agents as Samsung's agent and attorney-in-fact, to act for and in
Samsung's behalf and stead to execute and file any such applications
and to do all other lawfully permitted acts to further the
prosecution and issuance of patents and copyright registrations
thereon with the same legal force and effect as if executed by
Samsung.
4.2 Samsung.
4.2.1 Samsung shall own all right, title, and interest in and to all
Samsung Technology, Samsung Confidential Information, the Products,
all Derivative Technology created from, based on, or related to any
of the foregoing, by whomever made, and all intellectual property
rights related thereto. In the event that any HSNS personnel make a
contribution to the Samsung Technology, Samsung Confidential
Information, the Products, or any Derivative Technology created
from, based on, or related to any of the foregoing, including,
without limitation, all rights in and to any inventions and designs
embodied in any of the foregoing (collectively, an "HSNS
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Contribution"), HSNS shall assign, and hereby does assign, its
entire right, title, and interest in and to each HSNS Contribution
to Samsung.
4.2.2 HSNS agrees to assist Samsung, or Samsung's designee, at Samsung's
expense, to obtain and from time to time enforce and defend
Samsung's rights in and to each HSNS Contribution, and any
copyrights, patents or other intellectual property rights relating
thereto, in any and all countries, and to execute all documents
reasonably necessary for Samsung to do so.
4.2.3 HSNS agrees that if Samsung is unable, because of HSNS's
unavailability, dissolution, or for any other reason, to secure any
HSNS's signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering
any HSNS Contribution, then HSNS hereby irrevocably designates and
appoints Samsung and Samsung's duly authorized officers and agents
as HSNS's agent and attorney-in-fact, to act for and in HSNS's
behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and
issuance of patents and copyright registrations thereon with the
same legal force and effect as if executed by HSNS.
4.3 Limited License.
4.3.1 HSNS hereby grants Samsung a non-exclusive, non-transferable,
non-sublicensable, fully paid, royalty free license to use the
Deliverables solely for evaluation and acceptance testing purposes
pursuant to the terms of, and for the time periods specified in,
Sections 2.4.1 and 2.4.2 herein or at such time periods as set forth
in an appropriate Services Schedule.
4.3.2 HSNS shall retain all right, title, and interest in and to any
Deliverable, in whatever form, and all intellectual property rights
thereto, all copies thereof by whomever made, and all related
documentation and materials.
4.3.3 Samsung agrees that it and its employees, consultants, agents and
representatives will not directly or indirectly (i) disassemble,
decompile or otherwise reverse engineer any Deliverable or otherwise
attempt to learn the source code, structure, algorithms, or ideas
underlying any Deliverable, (ii) rent, lease or otherwise provide
temporary access to any Deliverable, (iii) alter or modify any
Deliverable, or (iv) allow others to do any of the foregoing.
4.3.4 Samsung acknowledges and agrees that except as specifically provided
in this Agreement, Samsung shall have no other right, title, or
interest in any Deliverable, including the right to copy,
distribute, sublicense, or create derivative works, and shall use
the Deliverables solely as permitted under this Agreement. Any
further grant of rights in any Deliverable shall be the subject of a
separate license agreement(s) to be negotiated in good faith by the
parties; provided, that, nothing herein shall obligate either party
to negotiate or enter into any such agreement.
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5. NO OBLIGATION/INDEPENDENT DEVELOPMENT
Notwithstanding any other provision of this Agreement or any Services Schedule,
Samsung shall have no obligation to market, sell, sublicense, or otherwise
distribute the Deliverables, either alone or in any Product. Nothing in this
Agreement or any Services Schedule will be construed as restricting HSNS's
ability to acquire, develop, import, manufacture, market, sell, license,
sublicense, or distribute for itself, or have others acquire, develop, import,
manufacture, market, sell, license, sublicense, or distribute for HSNS, the
Ported Object(s) and/or ported objects performing the same or similar functions
as the Ported Object(s) developed under this Agreement or any Services Schedule.
6. CONFIDENTIALITY
6.1 HSNS's Confidential Information. Samsung shall protect HSNS's
Confidential Information from unauthorized dissemination and use
with the same degree of care that Samsung uses to protect its own
most confidential information, but no less than commercially
reasonable care. Samsung will not use HSNS's Confidential
Information for purposes other than those necessary to directly
further the purposes of this Agreement. For a period of five (5)
years, Samsung will not disclose to third parties HSNS's
Confidential Information without the prior express written consent
of HSNS. Except as expressly provided in this Agreement, no
ownership or license right is granted in any HSNS Confidential
Information.
6.2 Samsung's Confidential Information. HSNS shall protect Samsung's
Confidential Information from unauthorized dissemination and use
with the same degree of care that HSNS uses to protect its own most
confidential information, but no less than commercially reasonable
care. HSNS will not use Samsung's Confidential Information for
purposes other than those necessary to directly further the purposes
of this Agreement. For a period of five (5) years, HSNS will not
disclose to third parties Samsung's Confidential Information without
the prior express written consent of Samsung. Except as expressly
provided in this Agreement, no ownership or license right is granted
in any Samsung Confidential Information.
6.3 Additional Terms.
6.3.1 The obligations of confidentiality set forth in Sections 6.1
and 6.2 above may be amended or supplemented with respect to
any Services Schedule with additional confidentiality
obligations and restrictions as expressly set forth therein.
6.3.2 In the event that it is or becomes necessary for any employee,
consultant, contractor, or agent of either party to perform
Services under any Services Schedule at the other party's
facilities, each such employee, consultant, contractor, and
agent shall sign a separate non-disclosure agreement with such
other party
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relating to disclosures of confidential information resulting
from the performance of such Services at such location.
7. WARRANTIES; LIMITATION
7.1 HSNS. HSNS represents and warrants that: (i) it has the full power to
enter into this Agreement grant the license rights set forth herein; (ii)
the Services shall be original to HSNS; and (iii) the Deliverables will be
created by employees or Independent Contractors of HSNS within the scope
of their employment or their agreements, respectively, and under an
obligation to assign any inventions made hereunder or under any Services
Schedule to HSNS.
7.2 Samsung. Samsung represents and warrants that: (i) it has the full power
to enter into this Agreement and make the assignments set forth herein;
(ii) to the best of Samsung's knowledge, the Products do not infringe any
patent, copyright, trade secret, or other proprietary right held by any
third party; and (iii) any Samsung personnel assigned to a Porting Team
shall be employees or Independent Contractors of Samsung within the scope
of their employment or agreements, respectively, and under an obligation
to assign any inventions made hereunder or under any Services Schedule to
Samsung.
7.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY SERVICES SCHEDULE,
ALL WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY
RIGHTS, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE
DISCLAIMED, EXCEPT TO THE EXTENT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY
INVALID.
8. TERMINATION
8.1 Term. The term of this Agreement shall commence as of the date hereof and
end on the day three (3) years from such date unless extended by mutual
written agreement of the parties or earlier terminated as provided herein.
Services Schedules shall commence upon the date of complete execution by
the parties and shall terminate upon the completion of Services described
therein, unless earlier terminated as provided herein or therein.
8.2 Termination by Samsung. Samsung may terminate this Agreement or any
Services Schedule for any reason upon thirty (30) days prior written
notice. Upon receipt of such notice, HSNS will discontinue all Services
set forth in the applicable Service Schedule(s). Samsung will pay for all
Services performed by HSNS under any terminated Services Schedule(s) up
until the date of receipt of the termination notice pursuant to the terms
of Section 3.2 herein.
8.3 Termination By Either Party For Cause. Either party may suspend
performance and/or terminate this Agreement or any Services Schedule
immediately upon written
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notice at any time if the other party is in material breach of any
material warranty, term, condition or covenant of this Agreement, in the
case of termination of this Agreement, or any Services Schedule, in the
case of termination of any Services Schedule, and fails to cure such
breach within thirty (30) days after receipt of written notice thereof.
8.4 Effect of Termination. Upon expiration or any termination of this
Agreement by either party (i) all rights and licenses granted by one party
to the other party under this Agreement shall terminate; (ii) Samsung
shall return all HSNS Technology, HSNS Confidential Information, and any
Derivative Technology created therefrom, or certify the destruction of the
same to HSNS within ten (10) days; (iii) HSNS shall return all Samsung
Technology, Samsung Confidential Information, and any Derivative
Technology created therefrom, or certify the destruction of the same to
Samsung within ten (10) days; and (iv) all other obligations and rights
under this Agreement shall terminate, except Sections 1, 3, 4, 6, 7, 8.4,
9, 10, and 11 shall survive termination. Neither party shall be liable to
the other for damages of any sort resulting solely from the termination of
this Agreement in accordance with its terms.
9. LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF SECTIONS 4, 6, 7.1, AND 7.2 HEREUNDER, NEITHER PARTY
SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY
FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR
OTHER ECONOMIC ADVANTAGE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. ARBITRATION
10.1 Procedure. The parties shall make diligent and reasonable efforts to
amicably settle all disputes, controversies, or differences, which may
arise between the parties hereto, out of or in relation to or in
connection with this Agreement. Upon the occurrence of a dispute between
the parties, including, without limitation, any breach of this Agreement
or any obligation relating thereto, the matter shall be referred first to
the managers of HSNS and Samsung having responsibility for the subject
matter of the dispute, or their designees. The managers, or their
designees, as the case may be, shall negotiate in good faith to resolve
such dispute in a mutually satisfactory manner for thirty days. If such
efforts do not result in mutually satisfactory resolution of the dispute,
the matter shall be referred to the chief executive officer of each party,
or their respective designees. The chief executive officers, or their
designees, as the case may be, shall negotiate in good faith to resolve
such dispute in a mutually satisfactory manner for thirty days, or such
longer period of time to which the chief executive officers may agree. If
such efforts do not result in a mutually satisfactory resolution, the
dispute shall be finally settled by arbitration in New York, New York in
accordance with the then-current Commercial Rules
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of Arbitration of the American Arbitration Association, and the award of
the arbitration shall be final and binding on both parties. The parties
shall use their best efforts to mutually agree upon one arbitrator
provided, however, that if the parties have not done so within ten days
after initiation of arbitration hereunder, or such longer period of time
as the parties have agreed to in writing, then there shall be three
arbitrators, including one nominee of HSNS, one nominee of Samsung, and a
third person selected by said nominees. Judgment upon the award rendered
may be entered in the highest court or forum, state or federal, having
jurisdiction; provided, however, that the provisions of this Section 10
shall not apply to any dispute or controversy as to which any treaty or
law prohibits such arbitration. The prevailing party shall be entitled to
reasonable attorneys' fees and costs to be fixed by the arbitrators. At
least one arbitrator shall be an attorney with expertise in intellectual
property law and practice and the software arts.
10.2 Injunctive Relief. Notwithstanding the above, pending the outcome of any
arbitration proceedings, in the event that either party is in breach of,
or threatens to breach, any obligation of confidentiality hereunder, the
non-breaching party shall be entitled to apply to any court having
jurisdiction over the breaching party seeking injunctive relief (interim,
interlocutory, and/or final) to prevent the breaching party from breaching
or continuing to breach any such obligation.
11. GENERAL
11.1 Notices. All notices and requests in connection with this Agreement shall
be deemed given as of the day they are received either by telefacsimile,
messenger, delivery service, or United States Postal Service, postage
prepaid, certified or registered, return receipt requested, and addressed
as follows:
TO SAMSUNG: TO HSNS:
Samsung Electronics America High Speed Net Solutions, Inc.
000 Xxxxxxxxxx Xxxx 000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, VP Attention: Xxxx Ban, COO
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Email: xxxxxxxx@xxx.xxxxxxx.xxx Email: xxxx.xxx@xxxxxx.xxx
COPY TO: COPY TO:
Xxxxxx & Xxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Fax: Fax: (000) 000-0000
or to such other address as a party may designate pursuant to this notice
provision.
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11.2 Independent Contractors. Samsung and HSNS are independent contractors as
to each other, and at no time shall either be deemed to be or hold itself
out as the agent, partner or representative of the other. Nothing in this
Agreement shall be construed to form a joint venture or partnership
between the parties.
11.3 Press Releases. The parties will cooperate with each other on press
releases and similar communications regarding the non-confidential subject
matter of this Agreement. The content, timing and necessity of any and all
press releases or similar communications will be agreed upon in writing by
both parties prior to any such release or communication.
11.4 Taxes. In the event taxes are required to be withheld on payments made
under this Agreement by any U.S. (state or federal) or foreign government,
Samsung may deduct such taxes from the amount owed HSNS and pay them to
the appropriate taxing authority. Samsung shall in turn promptly secure
and deliver to HSNS an official receipt for any taxes withheld. Samsung
will use reasonable efforts to minimize such taxes to the extent permitted
under applicable law. Additionally, Samsung shall promptly provide HSNS
with copies of tax certificates showing that such tax payments have been
made by Samsung. Under the Convention for the Avoidance of Double Taxation
between the Republic of Korea and the U.S. and the Convention and
Agreement of Tax Exemption and Reduction between the Republic of Korea and
U.S., engineering support, including, without limitation, the provision of
engineering support services, is not taxable.
11.5 Governing Law. This Agreement shall be governed and interpreted in all
respects under the laws of the State of New York, without regard to any
conflicts of law provisions thereof.
11.6 Assignment. This Agreement shall be binding upon and inure to the benefit
of each party's respective successors and lawful assigns; provided,
however, that Samsung may not assign this Agreement, in whole or in part,
without the prior written approval of HSNS. An "assignment" shall be
deemed to include, without limitation, a merger of one party with a third
party, whether or not the party is the surviving entity, any transaction
or series of transactions whereby a third party acquires direct or
indirect power to control the management and policies of the party,
whether through the acquisition of voting securities, by contract, or
otherwise, or the sale of more than fifty (50%) percent of the party's
assets (whether in a single transaction or series of transactions). Any
attempted assignment in violation of this Section 11.6 shall be void and
of no effect.
11.7 Force Majeure. Each party to this Agreement shall be excused from any
performance required of such party hereunder if, and only to the extent,
such performance is rendered impossible or unfeasible due to any
catastrophe or other
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major event beyond such party's reasonable control and not due to the
fault or negligence of such party, including, without limitation, war,
riot, and insurrection; laws, proclamations, edicts, ordinances or
regulations; strikes, lockouts or serious labor disputes; floods, fires,
explosions, or other natural disasters. In the event of the occurrence of
such a force majeure event, the party unable to perform shall promptly
notify the other party, shall suspend performance only for such period of
time as is necessary as a result of the force majeure event, and shall use
its commercially reasonable best efforts to resume performance as quickly
as possible.
11.8 Construction. If any one or more provisions of this Agreement shall be
found to be illegal or unenforceable by a court of competent jurisdiction
in any respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, provided
the surviving agreement materially comports with the parties' original
intent, and the remainder of this Agreement will continue in full force
and effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any
other provision. This Agreement has been negotiated by the parties and
their respective counsel and will be interpreted fairly in accordance with
its terms and without any strict construction in favor of or against
either party.
11.9. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the Services and all other subject matter
hereof and merges all prior and contemporaneous communications. It shall
not be modified except by a written agreement dated subsequent to the date
of this Agreement and signed on behalf of Samsung and HSNS by their
respective duly authorized representatives.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
HIGH SPEED NET SOLUTIONS, INC. SAMSUNG ELECTRONICS AMERICA
By: /s/ Xxxxx Xxxxxxx By: /s/ X. Xxxxx
--------------------------- ---------------------------
Name (print): Xxxxx Xxxxxxx Name (print): X. Xxxxx
Title: co-CEO Title: V.P.
Date: 8/1/01 Date: 7/27/01
HSNS Confidential & Proprietary Page 12 of 15
EXHIBIT A
MAINTENANCE PROBLEM SEVERITY AND RESOLUTIONS
1. Error Reporting. Samsung's designated technical contact shall promptly
report via e-mail to HSNS all Errors in the Deliverables of which it
becomes aware. Each Error will be classified by the mutual agreement of
the Parties as one of the following:
1) "Critical" Problem, which prevents or seriously impairs the
performance in accordance with the Specifications of substantially
all major functions.
2) "Severe Impact" Problem which prevents or seriously impairs the
performance in accordance with the Specifications of a major
function.
3) "Degraded Operation" Problem, which disables or impairs the
performance in accordance with the Specifications of a minor
function.
2. Error Correction. During the Initial Support Term and the Extended Support
Term, if applicable, HSNS shall use reasonable efforts to respond to and
resolve (to the extent reasonably possible) Errors reported in accordance
with 1 above as set forth below (for the purposes of this Section, a day
refers to a business day as opposed to calendar day):
First Level Final Level
Critical 4 Days 4 Days
Severe Impact 4 Days 5 Days
Degraded Operation 1 Week 2 Weeks
"First Level" means providing a patch or work-around which is used as a
temporary fix.
"Final Level" means providing a patch or work-around, which is a
permanent fix.
HSNS Confidential & Proprietary Page 13 of 15
SERVICES SCHEDULE 1
REQUIREMENTS
1.0 REQUIREMENTS FOR VIDEO CODEC.
[INSERT]
2.0 REQUIREMENTS FOR STILL IMAGE CODEC.
[INSERT]
PRODUCT.
The Product(s) for which the Ported Object under this Services Schedule 1 is
targeted is (are):
LICENSE FOR TESTING
DELIVERABLES.
1.0 MILESTONE DELIVERABLES
2.0 SUPPORTING DELIVERABLES
3.0 DOCUMENT DELIVERABLES
[INSERT]
SCHEDULE. The Deliverables will be completed and delivered according to the
following schedule.
[INSERT]
TECHNOLOGY
1.0 HSNS TECHNOLOGY
[INSERT]
2.0 SAMSUNG TECHNOLOGY
[INSERT]
PORTING TEAM.
1.0 PORTING LOCATION.
2.0 PERSONNEL.
LIST OF AUTHORIZED COMPANY EMPLOYEES:
[INSERT]
LIST OF AUTHORIZED COMPANY INDEPENDENT CONTRACTORS (IF ANY):
[INSERT]
3.0 DEVELOPMENT TOOLS.
HSNS Confidential & Proprietary Page 14 of 15
THE FOREGOING SERVICES SCHEDULE 1 IS AGREED TO AND ACCEPTED BY THE PARTIES:
HIGH SPEED NET SOLUTIONS, INC. SAMSUNG ELECTRONICS AMERICA
By: By:
--------------------------- ----------------------------
Name (print): Name (print):
Title: Title:
Date: Date:
HSNS Confidential & Proprietary Page 15 of 15
