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3.20 Form: Master Development Agreement
This Master Development Agreement ("Agreement") is entered into by
and between Multimedia Producer, Inc. ("Producer"), a New York
corporation with a principal business address of East 50th Street, New
York, New York and Development International, Ltd., a
Massachusetts corporation with a principal business address of Charles
Street, Boston, Massachusetts ("Developer").
WHEREAS, Producer desires Developer to develop certain interactive
products;
WHEREAS, Developer desires to develop for Producer such
interactive products and services;
NOW THEREFORE, Producer and Developer agree as follows:
1. Definitions
1.1. Budget
"Budget" shall mean the budget for the Services for a Product, as set
forth on a Schedule.
1.2. Confidential Information
"Confidential Information" shall mean the confidential information of
the Parties, including without limitation, financial information,
business plans, identities of customers, clients or licensors, and
technical data.
1.3. Deliverables
"Deliverables" shall mean with regard to each Product, Prototypes,
Functionality Specifications, Design Specifications, Documentation,
all copies of the Works provided to or made by Developer, a Master
and all other copies of the Product (or any portion thereof) developed
by Developer.
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1.4. Design Specifications
"Design Specifications" shall mean, with respect to any Product, a full
description of the technical operation of the Product, including without
limitation, the use of the Software, indexing configurations,
stylesheets, graphics, and link configurations, graphic modes, script
commands, shelling and any other design features which will be
implemented in the Product.
1.5. Documentation
"Documentation" shall mean user and system documentation which
explains fully the operation and design of the Product.
1.6. Interface
"Interface" shall mean, with respect to any Product, all visual and
audio elements associated with the Product, including without
limitation screen designs and layouts, coloration, graphics, typesets,
and the command set used to operate the Product.
1.7. Escrow
"Escrow" shall mean the relationship formed by the Parties pursuant to
the provisions of a Schedule herein.
1.8. Functionality Specifications
"Functionality Specifications" shall mean, with respect to any Product,
a description of the complete functionality of the Product, including all
aspects of its interactivity, screen displays, audio, video and special
effects. The Functionality Specifications shall incorporate any
Prototypes for the particular Product.
1.9. Master
"Master" shall mean a copy of each Product produced by Developer
for use in the manufacture of the Product.
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1.10. Periodic Edition
"Periodic Edition" shall mean an edition of any Product to be produced
on a periodic basis, as indicated on a Schedule.
1.11. Platforms
"Platforms" shall mean personal computers running DOS, Windows,
Macintosh and OS/2 operating systems.
1.12. Product
"Product" shall mean any application which Developer designs,
develops or produces pursuant to this Agreement. The Product shall
include the design of the associated user documentation and
packaging.
1.13. Prototype
"Prototype" shall mean any samples, models, preliminary versions or
tools which are demonstrative of a Product's functionality.
1.14. Schedules
"Schedules" shall mean the schedules to be attached to this Agreement
pursuant to Section 2 herein, in the form set forth in Exhibit A, for
each specific Product to be developed under this Agreement. The
Schedule shall include a description of the Product, the Subject, the
Budget, the Timetable, and any other information which is appropriate
with regard to that Product.
1.15. Services
"Services" shall mean, with respect to any Product, the creation of the
Functionality Specifications, the Design Specifications, and the
Product.
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1.16. Software
"Software" shall mean all software existing upon the date of this
Agreement used by Developer in the development of a Product,
including without limitation Developer's Product Development Tool
software, together with any modifications and improvements thereto.
1.17. Subject
"Subject" shall mean the topic specified on a Schedule to which that
Product relates.
1.18. Term
"Term" shall have the meaning ascribed to it in Section 9.1.
1.19. Timetable
"Timetable" shall mean, with respect to any Product, the schedule of
events for the Services set forth on the Schedule, and shall include a
series of milestones upon which Developer shall be paid for the
Services in accordance with Sections 4 and 15.
1.20. Works
"Works" shall mean all text, photographs, audio or video segments,
animation, graphics, charts, tables or any other content which Producer
shall provide to Developer pursuant to this Agreement for
incorporation into a Product.
2. Schedules
For each Product which the Parties intend to develop pursuant to this
Agreement, a Schedule in the form set forth in Exhibit A must be
agreed to among the Parties. A proposed Schedule will not be effective
as part of this Agreement until each Party to this Agreement has
executed the proposed Schedule, upon which the Schedule will be
incorporated herein as part of this Agreement. Any subsequent
amendments to a Schedule, including without limitation a change to
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the Budget or Timetable, will not be effective until such amendments
are signed by each Party to this Agreement.
3. Services
With regard to each Schedule hereto, Developer shall perform the
Services in accordance with the terms and conditions of this
Agreement.
3.1. Functionality Specifications
With regard to each Schedule hereto, Developer shall develop and
deliver to Producer Functionality Specifications in accordance with
such Schedule.
(a) Producer shall have ten (10) business days from receipt of
Functionality Specifications for acceptance review of such
Functionality Specifications. At the end of ten (10) days, Producer
shall notify Developer in writing, indicating either acceptance or
rejection of such Functionality Specifications, and, if rejection, the
reasons therefor. Acceptance of Functionality Specifications shall be
in the sole discretion of Producer.
(b) Upon rejection of the Functionality Specifications, Producer may
terminate the Schedule to which the Functionality Specifications relate
pursuant to Section 10, terminate the Agreement pursuant to Section 9,
or require Developer to revise the Functionality Specifications and
resubmit them for acceptance under this provision no later than a
mutually agreed to date.
(c) Upon Producer's acceptance of the Functionality Specifications, the
Functionality Specifications shall be incorporated herein by reference
and considered part of the Schedule to which the Functionality
Specifications relate.
3.2. Design Specifications
With regard to each Schedule hereto, Developer shall develop and
deliver to Producer Design Specifications in accordance with such
Schedule. The Design Specifications shall be consistent with the
Functionality Specifications which were accepted by Producer for that
Schedule.
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(a) Producer shall have ten (10) business days from receipt of the
Design Specifications for acceptance review of such Specifications.
Producer shall notify Developer in writing, indicating either
acceptance or rejection of such Design Specifications, and, if rejection,
the reasons therefor. Acceptance of the Design Specifications shall not
be unreasonably withheld.
(b) Upon rejection of the Design Specifications, Producer may
terminate the Schedule to which the Design Specifications relate
pursuant to Section 10, terminate the Agreement pursuant to Section 9,
or require Developer to revise the Design Specifications and resubmit
them for acceptance under this provision no later than a mutually
agreed to date.
(c) Upon Producer's acceptance of the Design Specifications, the
Design Specifications shall be incorporated herein by reference and
considered part of the Schedule to which the Design Specifications
relate.
3.3. Product Development
With regard to each Schedule hereto, upon Producer's acceptance of
the Design Specifications, Developer shall develop, for each Platform,
the Product and Documentation in accordance with such Schedule.
The Product and Documentation shall be developed in accordance
with this Agreement, including without limitation the Functionality
Specifications and Design Specifications. The development of all
Products and Documentation shall be subject to Producer's approval
and final acceptance as set forth in Section 11 herein. Upon the
completion of work under a Schedule, Developer shall provide
Producer with all copies of the Deliverables existing in any and all
media, and unless otherwise agreed to by the Parties, shall erase or
destroy any version of any Deliverable or portion thereof contained in
any type of computer memory, and so warrant in writing to Producer
within thirty (30) days of completion of the Product.
3.4. Subsequent Periodic Editions
If a Product is to be produced in Periodic Editions, as specified in the
Schedule, Developer shall develop and produce a Periodic Edition of
the particular Product for each such period during the Term of this
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Agreement. The functionality and contents of each Periodic Edition of
the Product shall be at Producer's discretion. Producer, at its option, as
part of the ongoing Services, may, at any time, require Developer to
revise the Functionality Specifications or Design Specifications for the
Product to reflect Producer's desired modifications in the Product from
the previous period. Any revised Functionality Specifications and
Design Specifications will be subject to Producer's review for
acceptance pursuant to the procedure set forth in Sections 3.1 and 3.2
herein.
3.5. Progress Reports
Developer shall provide to Producer a weekly progress report detailing
the progress made by Developer during the preceding week for each
Product under development, and identifying any problems which may
cause delays in the Product's development.
4. Compensation
4.1. Services Compensation
Producer shall compensate Developer for all Services under this
Agreement in accordance with the hourly fee schedule set forth as
Exhibit B hereto, provided however that unless mutually agreed to in
writing, with respect to any particular Product, Developer shall not be
compensated for the performance of any task in excess of the amount
allocated to that task on the Schedule's Budget.
4.2. Expenses
Producer shall reimburse Developer for all reasonable out-of-pocket
expenses incurred by Developer in the performance of its obligations
under this Agreement, provided such expenses were approved in
advance in writing by Producer.
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5. Proprietary Rights
5.1. Rights in the Works
Developer acknowledges and agrees that it shall have no right, title
and interest in and to any of the Works provided by Producer or any
derivative works thereof including without limitation any digitized
versions thereof created by Developer. Under no circumstances shall
the delivery of any copy of the Works to Developer be construed as a
transfer of title to that copy or a transfer of any right, title or interest in
the Works.
5.2. Rights in Deliverables
All Deliverables shall be considered to be works made for hire for all
purposes, including for purposes of interpretation under the U.S.
Copyright Law, 17 U.S.C. ß\x11101 et. seq. To the extent that such
Deliverables are not construed to be works made for hire, Developer
shall, and hereby does, perpetually, and without further consideration,
assign all right, title and interest to such Deliverables to Producer. All
right, title and interest in the Deliverables, including any copyright,
patent, trade secret or other proprietary right in the Deliverables, shall
be the sole property of Producer. Notwithstanding the foregoing,
nothing herein should be construed to vest ownership of any right, title
or interest to the Software in Producer.
5.3. Confidential Information
All Parties shall keep confidential the Confidential Information of the
other Parties. Each Party shall disclose the other Parties' Confidential
Information to its employees and agents only on a need-to-know basis,
and shall not use or disclose such information in any way other than
that intended by the disclosing Party.
5.4. License
Developer, or its licensors, shall retain all right, title and interest to the
Software. Developer hereby grants to Producer a perpetual,
worldwide, royalty-free license, or sublicense, to use, copy, maintain,
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modify or sublicense others to use, copy, maintain or modify the
Software in the connection with the production of the Products,
including without limitation, current and subsequent versions of the
Products. Notwithstanding the foregoing, Producer shall have the right
to access the Software from Escrow only upon a material breach of
this Agreement by Developer or upon any of the conditions set forth in
Sections 9.3 or 9.4 herein, and then only for the purpose of creating
current and subsequent versions of the Products which are described in
Schedules incorporated as part of the Agreement at that time.
5.5. Cooperation
Each Party agrees to take all actions and cooperate as is necessary to
protect the other Parties' respective proprietary rights, title and interest
as set forth herein, and further agrees to execute any documents that
might be necessary to perfect each Party's ownership of such rights.
5.6. Proprietary Notices
Developer shall cause appropriate copyright notices to appear on each
copy of the Products (including the associated CD-ROM, jewel case,
and user documentation), and on the initial screen display generated by
each copy of the Product.
6. Indemnification
6.1. Producer
Producer shall indemnify Developer and hold it harmless from any and
all claims, losses, deficiencies, damages, liabilities, costs, and
expenses (including but not limited to reasonable attorneys' fees and
all related costs and expenses) incurred by Developer as a result of any
claim, judgment or adjudication against Developer arising from: (i)
any breach or allegation which, if true, would constitute a breach of
any of Producer's obligations or warranties hereunder; and (ii) the
actions or omissions of Producer, its officers, directors, employees,
agents or assigns, provided that Developer (a) promptly notifies
Producer in writing of any such claim and gives Producer the
opportunity to defend or settle any such claim at Producer's expense
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and (b) cooperates with Producer, at Producer's expense, in defending
or settling such claim. Producer shall have no liability hereunder for
intellectual property infringement to the extent that the infringement
arises from the use of (i) any matter not explicitly authorized by
Producer for use in a Product or (ii) a Work or any other material
provided by Producer hereunder in a manner not explicitly authorized
by Producer.
6.2. Developer
Developer shall indemnify Producer and hold it harmless from any and
all claims, losses, deficiencies, damages, liabilities, costs, and
expenses (including but not limited to reasonable attorneys' fees and
all related costs and expenses) incurred by Producer as a result of any
claim, judgment or adjudication against Producer arising from: (i) any
breach or allegation which, if true, would constitute a breach of any of
Developer's obligations or warranties hereunder; (ii) the actions or
omissions of Developer, its officers, directors, employees, independent
contractors, agents, assigns or any other person or entity working
under the supervision of or at the direction of Developer, provided that
Producer (a) promptly notifies Developer in writing of any such claim
and gives Developer the opportunity to defend or settle any such claim
at Developer's expense and (b) cooperates with Developer, at
Developer's expense, in defending or settling such claim.
6.3. Infringement
In the event that any of the Deliverables infringe a third party's
intellectual property rights, in addition to any indemnity obligations
which may arise, Developer shall, at its option, (i) procure for
Producer the right to continue using the Deliverable, or (ii) provide
Producer with a functionally equivalent, non-infringing replacement
for the Deliverable.
7. Limitation of Liability
With the exception of indemnification obligations, and except for acts
of willful misconduct or gross negligence, no Party shall in any
circumstances be liable to any other for any direct or indirect damages,
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including any loss of business or profits, or any other consequential,
incidental, punitive or similar damages, or, other than as set forth
herein, for the claims of damages made by any third party for any
cause whatsoever, regardless of the form of action, whether in contract
or in tort, including negligence, even if it has been advised of the
possibility of such damages.
8. Reservation of Rights
Other than as expressly set forth herein, all rights with respect to the
Deliverables (and any derivative works thereof), whether such rights
are now existing or which may hereafter come into existence, are
reserved to Producer. Without limiting the foregoing, and except as
provided herein, Developer shall have no right to: make any copies of
the Works other than as necessary for incorporation of the Works into
a Product; make any copies of a Product other than as necessary for
Developer to perform its obligations hereunder; combine the Works or
derivative works thereof, in whole or in part, with any other materials
other than as contemplated herein; sell, transfer, assign, transmit,
distribute, download or otherwise convey a Product, the Works or any
derivatives thereof, to anyone other than Producer; use, alter or modify
in any way the Works or any derivative works thereof; or perform or
display in any way a Product, the Works or any derivative works
thereof. For purposes of this Agreement, the digitized form of a Work
shall be considered to be a derivative work of the Work.
9. Term and Termination of Agreement
9.1. Term
The Term of this Agreement shall be for one (1) year and shall be
perpetually renewable for additional one (1) year Terms at Producer's
option (the original Term and all renewal Terms referred to herein as
the "Term") unless terminated as set forth herein.
9.2. Right to Terminate Agreement for Breach
Should Producer or Developer materially breach any terms or
conditions of this Agreement, in addition to all other legal rights and
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remedies available to the non-breaching Party, the non-breaching Party
may terminate this Agreement at any time following thirty (30) days
after delivery of written notice of said breach to the breaching Party,
unless said breach will have been remedied within said thirty (30)
days.
9.3. Additional Producer Right to Terminate Agreement
Producer shall have, in addition to all other legal rights and remedies
available, the right to terminate this Agreement in the event (i)
Producer rejects any of the Deliverables; or (ii) Producer determines
that it cannot obtain the licenses, sublicenses, assignments,
permissions, waivers or other rights or clearances necessary to use a
substantial portion of the materials originally anticipated to be
incorporated into the Products. Such termination shall be effective ten
(10) days after a written termination notice is provided to Developer.
Upon such a termination by Producer, Producer shall be entitled to
receive the source code, object code and documentation for the
Software from Escrow.
9.4. Obligations of Developer Upon Termination of Agreement
Upon expiration or termination of this Agreement for any reason,
Developer shall return all copies of all Deliverables (or any portion
thereof) which relate to all Products, in all media, and unless otherwise
agreed to by the Parties, shall erase or destroy any version of the
Deliverables (or any portion thereof) contained in any type of
computer memory, and so warrant in writing to Producer within thirty
(30) days of termination or expiration of this Agreement.
9.5. Effect of Termination of Agreement
Neither termination of this Agreement nor waiver of any right to
terminate under this Agreement shall impair or limit any additional
rights or remedies that Producer or Developer may have at law or in
equity. Except for a termination by Developer for a breach of
Producer's obligations hereunder, Producer's license to use the
Software shall survive expiration or termination of this Agreement for
any reason.
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10. Termination of Schedules
10.1. Producer Right to Terminate Schedules
Producer shall have, in addition to all other legal rights and remedies
available, the right to terminate any particular Schedule ten (10) days
after the date of a written termination notice is provided to Developer,
in the event of (i) a Producer rejection of any of the Deliverables
associated with that Schedule or (ii) a determination by Producer that
it cannot obtain the licenses, sublicenses, assignments, permissions,
waivers or other rights or clearances necessary to use a substantial
portion of the materials originally anticipated to be incorporated into
the Product associated with that Schedule.
10.2. Obligations Upon Termination of Schedule
Upon termination of a Schedule, Developer shall return all copies of
the Deliverables (or any portion thereof) which relate to the Product, in
all media, and unless otherwise agreed to by the Parties, shall erase or
destroy any version of the Deliverables (or any portion thereof)
contained in any type of computer memory, and so warrant in writing
to Producer within thirty (30) days of termination or expiration of this
Agreement. Producer shall pay Developer for all services rendered and
accepted in accordance with this Agreement and the Schedule prior to
the termination of the Schedule. A termination of a Schedule shall not
effect the remaining rights and obligations of the Parties with respect
to this Agreement and other Schedules.
11. Approvals and Final Acceptance
11.1. Preliminary Approval Rights
Producer shall have a right of approval of the development and
production of the Products at all of the stages of production set out in
the Schedule, and a right of written approval at those stages indicated
by an asterisk on the Schedule. Producer shall have ten (10) business
days from the receipt of any materials to be approved in writing to
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approve or disapprove the materials. Such right of approval shall
extend to all aspects of Developer's use of the Works and the
development of the Products produced pursuant to this Agreement
including but not limited to, product design, user documentation,
content, quality of the product, and packaging. Such approvals shall
not be unreasonably withheld.
11.2. Final Acceptance
Developer shall, upon completion of a Product (including a Periodic
Edition of a Product), submit to Producer for final acceptance, two (2)
samples of the Product for each Platform, the user documentation and
any other written material to accompany the Product, a videotape of
the major elements of the Product, and all packaging for the Product.
Producer shall have ten (10) business days from the date of receipt of
all of these materials to accept such materials, such acceptance not to
be unreasonably withheld or delayed. Producer shall not reject any
aspect of the products which was previously approved except in the
case of a defective product or mistaken, inaccurate, libelous, or
infringing material or other improper content.
11.3. Effect of Disapproval or Rejection
In the event Producer disapproves or rejects any aspects of a Product
for failure to satisfy the appropriate Functionality Specifications or
Design Specifications, Producer may terminate the Schedule related to
that Product pursuant to Section 10 herein, terminate this Agreement
pursuant to Section 9 herein, or require Developer to remedy the cause
of such disapproval or rejection without charge to Producer.
11.4. Delays in Approval
In the event that any Producer written approval or disapproval is
delayed beyond ten (10) business days, Developer's commitments
under this Agreement shall be extended to the extent necessary, up to a
period of time equivalent to Producer's delay beyond such ten (10)
business day period.
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12. Producer Provision of Works
12.1. Rights and Permissions
Producer shall be responsible for obtaining all licenses, sublicenses,
assignments, permissions, waivers or other rights or clearances
necessary for Developer's incorporation of the Works into the
Products, and design of the packaging. Upon Producer's written
request, Developer shall use its best efforts to obtain, at Producer's cost
and expense, such rights, permissions, waivers or other clearances.
Producer shall deliver one (1) copy of each Work to be incorporated
into a Product in accordance with a schedule mutually agreed to by the
Parties. Producer shall provide to Developer as part of that copy all
credits and/or attributions which must be included in the Product.
Developer shall use each Work only in conjunction with the Product
for which it was provided.
12.2. Inability to License
In the event that Producer does not obtain the licenses, sublicenses,
assignments, permissions, waivers or other rights or clearances
necessary to use particular materials as Works in a Product, Producer
shall not be obligated to provide such materials to Developer for
incorporation into the Product, and Developer shall not incorporate
such materials into the Product. If, in Producer's sole discretion, it
determines that it will not obtain the licenses, sublicenses,
assignments, permissions, waivers or other rights or clearances
necessary to use a substantial portion of those materials originally
anticipated to be incorporated into a Product, Producer shall have the
option of
terminating the Schedule related to the Product pursuant to Section 10.
12.3. Omissions
Developer will not alter, modify, change in any way or omit any
portion of, any of the Works provided by Producer without Producer's
express written authorization. In the event that Producer does not have
sufficient rights to include any component of a Work provided by
Producer in a Product, Developer will, at Producer's direction, delete
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such components from all copies of the Work used in the development
of that Product.
13. User Documentation
Developer shall provide with each Product user documentation which
is comparable to documentation provided with other high-quality CD-
ROM based products and which explains fully the operation of the
Product.
14. Non-Competition
14.1. Products
Developer agrees that, except as set forth in this Agreement, for the
Term of this Agreement and for five (5) years thereafter, it shall not (i)
directly or indirectly design, develop, create, or produce any other
product in any media, now known or hereafter to become known,
relating to the Subject shown on any Schedule hereto, or (ii) directly or
indirectly invest in, manage, advise, consult, license, sublicense, sell or
otherwise transfer software, intellectual property or know-how to,
serve as an employee, officer, or director of, or have any other form of
participation with a third party which is in a business related to the
production of products in any media, now known or hereafter to
become known, relating to a Subject shown on any Schedule hereto.
14.2. Interfaces
Developer agrees that, except as set forth in this Agreement, for the
Term of this Agreement and for five (5) years thereafter, it shall not
design, develop, create or produce, directly or indirectly, any product,
in any media, now known or hereafter to become known, with an end-
user interface which is substantially similar to an Interface of any
Product.
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15. Records, Timing of Payments, Invoices and Reserves
15.1. Records
Developer shall keep accurate records of all work performed by
Developer related to the Services. Such records shall clearly and
separately set forth all relevant information by Schedule, date,
individual (name and title), and Schedule task performed, including a
detailed description of the work performed, the platform to which the
work relates, the individual's hourly billing rate, the number of hours
(or part thereof) expended on the task, and the total billable amount for
that task. Developer shall allow Producer or its agents, upon
Producer's request, to inspect, audit and analyze all of Developer's
records as described herein and all of Developer's other books and
records relating to the Products, during business hours at Developer's
place of business. Producer shall bear the cost of such inspection and
audit, unless unauthorized activities, improper record keeping, or
overbilling of development fees in excess of five percent (5%) of the
amount to which Developer is entitled are discovered, in which case
such cost shall be borne by Developer. All overpayments shall be
promptly remitted to Producer together with interest at the standard
rate of interest offered by Citibank, N.A. on their depositary accounts
for immediately accessible funds, calculated from the time such
overpayments were made.
15.2. Timing
Developer shall be paid in accordance with the milestone payment
schedule set out on the Schedule. Upon the accomplishment of any
milestone for which payment is due, Developer shall invoice Producer
for all work performed and uncompensated during the immediately
preceding period. Invoices shall also identify any expenses incurred
during the preceding period for which Developer seeks
reimbursement, and shall include all accompanying documentation
therefor. Producer shall pay undisputed invoices not later than sixty
(60) days after receipt thereof.
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16. Producer's Right of Negotiation
16.1. Grant of Right
If during the Term of this Agreement, Developer desires to design,
produce or develop any product not precluded by Section 14 herein,
Producer shall have the right of first negotiation over any other third
party regarding the creation of such products.
16.2. Negotiation Period
Developer shall negotiate exclusively with Producer in good faith with
respect to the creation of such products for a forty-five (45) day
negotiation period. Upon the expiration of such negotiation period, if
an agreement has not been reached or the period is not extended by
mutual agreement, Developer shall be entitled to negotiate with third
parties regarding the creation of such products.
16.3. Additional Rights
In the event that Developer desires to enter into an agreement with a
third party with respect to the creation of such products, then before
contractually committing itself to do so, Developer shall offer to enter
into an agreement with Producer on terms equal to those offered by
such third party. Should Producer fail to accept such offer within ten
(10) business days after receipt of written notice of such an offer,
Developer shall have the right to enter into an agreement with the third
party on such terms.
17. Representations and Warranties
17.1. Producer
Producer represents and warrants to Developer that: (i)\x11Producer
has the full right, power and authority to enter into this Agreement;
and (ii)\x11to the extent that Producer is required to obtain rights,
permissions and credit and/or attribution information with respect to
the Works, Producer will do so accurately and completely.
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17.2. Developer
Developer warrants, covenants and represents that: (i)\x11Developer
has the full right, power and authority to enter into this Agreement;
(ii)\x11Developer is not subject to any non-competition obligations
which would prevent it from producing any Products hereunder;
(iii)\x11all aspects of the Deliverables other than the Works, including
without limitation, the Functionality Specifications, the Design
Specifications, the Interfaces, the user documentation, and any
packaging material, shall not contain any libelous material or any
material which constitutes an invasion of any right of privacy or
publicity or infringes upon any trademark, copyright, trade secret or
other intellectual property right; (iv)\x11the Products shall conform to
the appropriate Functionality Specifications and Design Specifications;
(v)\x11except as provided for in Section 12.3, the Products shall
embody full, accurate and unaltered representations of the digitized
versions of the Works; (vi)\x11all credits and/or attributions provided
by Producer for inclusion in the Products shall be duly included
therein; (vii)\x11no use of the Works shall be made other than as
explicitly authorized by Producer; and (viii)\x11Developer shall not
incorporate any materials into a Product which are not explicitly
authorized by Producer.
17.3. Product Warranty
Developer warrants that the Master for each Product shall perform and
operate in accordance with the Functionality Specifications and Design
Specifications for that Product for one hundred and twenty (120) days
after delivery of the Master to Producer. In the event that Producer
notifies Developer of a Master's failure to perform in accordance with
the Functionality Specifications and Design Specifications, Developer
shall repair or replace the Master at no charge within ten (10) days of
such notice and Producer shall be entitled to this Section's full one
hundred and twenty (120) day warranty in regard to the repaired or
replaced Master.
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17.4. Disclaimer of Warranties
THE WARRANTIES STATED HEREIN ARE LIMITED
WARRANTIES AND THE ONLY WARRANTIES MADE BY THE
PARTIES. THE PARTIES WAIVE ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
18. Insurance
Developer shall maintain insurance with a carrier satisfactory to
Producer, concerning and covering any and all of Developer's
obligations hereunder. Such insurance shall name Producer as an
additional insured and shall include, without limitation, comprehensive
general liability, including contract liability and products liability
coverage, and statutory workers' compensation insurance each of
limits of at least one million dollars ($1,000,000), and errors and
omissions, including intellectual property infringement liability, with
limits of at least five million dollars ($5,000,000).
19. Bankruptcy
Either Developer or Producer may terminate this Agreement, effective
immediately upon written notice, if: (i) all or a substantial portion of
the assets of the other party are transferred to an assignee for the
benefit of creditors, to a receiver or to a trustee in bankruptcy; (ii) a
proceeding is commenced by or against the other for relief under
bankruptcy or similar laws and such proceeding is not dismissed
within sixty (60) days; or (iii) the other is adjudged bankrupt or
insolvent. Upon such a termination by any Party, Producer shall be
entitled to receive the source code, object code and documentation for
the Software from Escrow.
20. Survival
The provisions of Sections 5, 6, 7, 8, 9.4, 9.5, 14, and 17 shall survive
a termination or expiration of this Agreement for any reason
whatsoever.
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21. Headings
The section and subsection headings contained in this Agreement are
for purposes of convenience and reference only, and shall not affect in
any way the meaning or interpretation of this Agreement.
22. Governing Law
This Agreement shall be governed by the laws of the State of New
York, and any action taken by any Party resulting from a dispute
regarding the terms of this Agreement shall be heard exclusively in the
Federal or State courts located in New York City, and the Parties
hereto consent to personal jurisdiction in such forums.
23. Notices
All notices permitted or required under this Agreement shall be
effective only if in writing, and shall be deemed to have been given
(and received) (a) when personally delivered, or (b) on the next
business day after the date on which deposited with a regulated public
carrier (e.g., Federal Express), with a return receipt requested or
equivalent thereof administered by such regulated public carrier,
addressed to that Party for whom intended at the address set forth
above.
24. Independent Contractors
Developer and Producer acknowledge and agree that Developer is an
independent contractor, and is not an employee, agent or partner of
Producer. Producer has no right to direct the manner in which
Developer fulfills its obligations and duties under this Agreement,
except as otherwise provided herein.
25. Assignment
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the Parties hereto. No Party may
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assign any of its rights or delegate any of its obligations under this
Agreement to any third party without the express written consent of
the other Parties which consent will not be unreasonably withheld.
26. Entire Agreement
This Agreement, which incorporates the Schedules and exhibits hereto,
supersedes any prior agreements or understandings between the Parties
and constitutes the entire understanding of the Parties as to the matters
set forth herein. No modification of this Agreement shall be valid or
binding unless executed in writing by each of the Parties on or after
the date hereof. None of the Parties shall be bound by any
representations, warranties, promises, statements or information as to
the matters which are the topic of this Agreement, unless such are
specifically set forth herein.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date hereof.
DEVELOPMENT INTERNATIONAL, LTD.
By:______________________
Name: ___________________
Title: ____________________
MULTIMEDIA PRODUCER, INC.
By: ______________________
Name: ___________________
Title: ____________________
