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PREMIUM NETWORK LICENSE AND RESELLER AGREEMENT with

Development Agreement

PREMIUM NETWORK LICENSE AND RESELLER AGREEMENT with | Document Parties: EN2GO INTERNATIONAL INC | Digital Stream, Inc | EN2GO INTERNATIONAL, INC You are currently viewing:
This Development Agreement involves

EN2GO INTERNATIONAL INC | Digital Stream, Inc | EN2GO INTERNATIONAL, INC

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Title: PREMIUM NETWORK LICENSE AND RESELLER AGREEMENT with
Governing Law: Nevada     Date: 6/17/2009

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Exhibit 10.1

 

PREMIUM NETWORK LICENSE AND RESELLER AGREEMENT

with

DEVELOPMENT TERMS

 

 

THIS AGREEMENT (the “Agreement”) is made and entered into as of June 10, 2009, by and between en2go International, Inc. (“en2go”), a corporation organized and existing under the laws of the State of Nevada, United States of America, with a place of business at 2921 West Olive Ave., Burbank, California 91505, and Digital Stream, Inc., a company organized and existing under the laws of the State of Nevada, United States of America, and with a place of business at 4439 South Slauson Ave., Culver City, California 90230 (“DSI”).

 

1.               DEFINITIONS

 

Defined terms used in this Agreement shall have the meanings set forth below:

 

1.1.   “Application” means the software and related documentation specified in Appendix B , which are developed and marketed by DSI in combination with the Customized Product.

 

1.2.   “Basic Maintenance” means en2go’s maintenance program pursuant to which en2go shall provide to DSI receipt of all improvements, error corrections, enhancements, modifications, updates, new versions, and new releases of the Products (other than those designated as new products by en2go), and support for the Product(s) and for all deliverables developed by en2go, for the fees described in Appendix D , payable in advance.  en2go reserves the right, in its sole discretion, to make non-material changes to the form and content of its Basic Maintenance from time to time and will provide DSI with a sixty (60) day advance notice of any such non-material change(s).  As used in this Agreement, a “non-material” change shall consist of change of an administrative or otherwise non-substantive nature, not having an adverse effect upon an Application previously effected, or upon the value, performance or functionality of the maintenance, support or Product being provided, as the case may be.  No consent by DSI shall be required for changes to the maintenance services provided by en2go to customers of en2go other than DSI.

 

1.3.   “Channel” means a flow of media objects which can be accessed and delivered directly to a user's rendering device, including but not limited to, a user’s desktop, by the Product platform.

 

1.4.   “Confidential Information” of a party means such party’s technical, business, marketing, financial or customer information, drawings, specifications, designs, records, correspondence or other information disclosed by such party in relation to this Agreement.  The Product, Customized Product and any intellectual and/or proprietary rights therein, including, without limitation, any patent, copyright, trademark, service mark, logo, and trade secrets therein shall be Confidential Information of en2go, subject to the remainder of this paragraph.  The Applications and any intellectual and/or proprietary rights therein, including, without limitation, any patent, copyright, trademark, service mark, logo, and trade secrets therein shall be Confidential Information of DSI, subject to the remainder of this paragraph.  A party’s “Confidential Information” does not include information (i) already in the public domain prior to the execution of this Agreement, or which enters the public domain, other than by unauthorized acts of the party receiving such information (the “Recipient”), (ii) in the rightful possession of the Recipient prior to the execution of this Agreement, or (iii) which is independently developed by the Recipient without use of the disclosing party’s Confidential Information or in violation of the terms of this Agreement.

 

1.5.   “Customized Product” means the Product as customized and developed pursuant to Section 2.

 

 

 

 

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1.6.   “Effective Date” means the date first written above.

 

1.7.   “End User” means a customer of DSI who is authorized by an end user license agreement to use the Application, Customized Product or Product for End User’s internal purposes.

 

1.8.    “Export Laws” means all export laws, administrative regulations, and executive orders of any applicable jurisdiction relating to the control of imports and exports of commodities and technical data, including, without limitation, the U.S. Department of Commerce.

 

1.9.   “Intellectual Property Rights” means patent rights (including but not limited to rights in patent applications or disclosures and rights of priority), copyright (including but not limited to rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.

 

1.10.   “Level 1 Support” means that the Customized Product or Product is non-operational and no users can access the system, or the functionality is significantly decreased, or back up or other security of data can no longer be performed. Such events shall require immediate resolution by en2go.  en2go must start the error correction not later than four hours following notification by DSI or End User. For Level 1 Support only, telephone support is available to report irregularities 24 hours per day 7 days per week.

 

1.11.   “Level 2 Support” means that the Customized Product or Product is operational with functional limitations or restrictions but there is minimal business impact. en2go must start the error correction not later than 24 hours following notification by DSI or End User. en2go shall work to correct errors during normal business hours using commercially reasonable best efforts to promptly correct such errors within 5 business days.

 

1.12.   “Level 3 Support” means that the Customized Product or Product is operational with functional limitations or restrictions that are not critical to the overall system operation. en2go shall work to correct such errors during normal business hours. en2go shall use commercially reasonable efforts to correct such errors within 30 business days.

 

1.13.   “Live Streaming Service” means DSI’s live streaming service as part of the Application.

 

1.14.   “Marks” means a party’s trademarks, trade names, service marks, and/or service names.

 

1.15.   “Network” means a channel which includes its own directory, divided by categories or genres.

 

1.16.   “Premium Custom Network” means a custom build of the Product Network which enables multiple administrators to set up channels as well as directories of its content.

 

1.17.   “Product” means the Flyxo™ application developed by en2go as described on Appendix A and licensed hereunder in accordance with this Agreement, including improvements, error corrections, enhancements, updates, new versions and new releases, provided to DSI by en2go.

 

1.18.   “Source Code” means software in human-readable form, including programmers’ comments, data files and structures, header and includes files, macros, object libraries, programming tools not commercially available, technical specifications, flowcharts and logic diagrams, schematics, annotations and documentation reasonably required or necessary to enable an independent third party programmer with reasonable programming skills to create, operate, maintain, modify and improve the software without the help of any other person.

 

 

 

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1.19.   “Sub-Distributor” means a reseller or distributor DSI engages or contracts with to market, sell, distribute and sublicense the Application, specifically excluding all End Users.

 

1.20.   “Territory” means anywhere in the world.

 

1.21.   “User Documentation” means the then current en2go user manual(s) and other written materials on the proper installation and use of, and which are normally distributed with, the Products.  en2go represents to DSI that it has provided to DSI an up-to-date copy of the User Documentation.

 

2.               CUSTOMIZATION OF PRODUCT

 

2.1.   en2go will develop interfaces, translations, applications and intellectual property to customize the Product to include DSI’s Live Streaming Service and customize the Product functionality to DSI’s clip builder software.  en2go and DSI will mutually agree upon a written statement of work and deployment schedule no later than thirty (30) days from the Effective Date.

 

2.2.   DSI shall pay the development fees to en2go as specified on Appendix D .

 

3.               GRANT OF LICENSES

 

3.1.   Subject to the terms and conditions herein, en2go hereby grants and DSI hereby accepts (i) a non-exclusive, nontransferable (except as otherwise provided herein), perpetual right and license to use the Customized Product in DSI’s Premium Custom Network; (ii) a non-exclusive, nontransferable (except as otherwise provided herein), perpetual, royalty-bearing right and license to subdistribute, sublicense, display, sell and market the Customized Product as part of the Application, Customized Product and Product, and accompanying User Documentation in the Territory; (iii) the right and license to sublicense to End Users the Customized Product as part of the Application, Customized Product and Product, and accompanying User Documentation for internal use in the Territory; and (iv) a non-exclusive, nontransferable (except as provided herein), perpetual, royalty-free right and license to use in unaltered form en2go’s Marks solely to promote the Application in the Territory, provided DSI obtains en2go’s prior written approval for each new usage.  en2go retains all title to and, except as unambiguously licensed herein, all rights, including all Intellectual Property Rights to the Product, and all copies and derivative works thereof (by whomever produced).

 

3.2.   Subject to the terms and conditions herein, DSI hereby grants and en2go hereby accepts (i) a non-exclusive, nontransferable (except as otherwise provided herein), perpetual, royalty-bearing right and license to subdistribute, sublicense, display, sell and market the Live Streaming Service for use solely in conjunction with the Product in the Territory; (ii) the right and license to sublicense to end users the Live Streaming Service for internal use in conjunction with the Product in the Territory; and (iii) a non-exclusive, nontransferable (except as provided herein), perpetual, royalty-free right and license to use in unaltered form DSI’s Marks solely to promote the Live Streaming Service in the Territory, provided en2go obtains DSI’s prior written approval for each new usage.  DSI retains all title to and, except as unambiguously licensed herein, all rights, including all Intellectual Property Rights to the Live Streaming Service.

 

 

 

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3.3.   Any use by either party of the other party’s Marks must reference the Marks as being owned by such party.  Nothing in this Agreement grants either party ownership or any rights in or to use the other party’s Marks, except in accordance with these licenses, and a party’s use of the Marks will inure to the benefit of the other party.  The rights granted to either party in this license will terminate upon any termination or expiration of this Agreement.  Upon such termination or expiration, neither party will make any further use of any Marks.  en2go will have the exclusive right to own, use, hold, apply for registration for, and register its Marks during the term of, and after the expiration or termination of, this Agreement; DSI will neither take nor authorize any activity inconsistent with such exclusive right.  DSI will have the exclusive right to own, use, hold, apply for registration for, and register its Marks during the term of, and after the expiration or termination of, this Agreement; en2go will neither take nor authorize any activity inconsistent with such exclusive right.

 

3.4.   DSI shall ensure that an End User agreement in electronic or hard copy form accompanies each Customized Product or Product or copy distributed by DSI subject to provisions no less protective for the Product and en2go, than those set forth substantially in the form attached hereto as Appendix C , and previously approved in writing by en2go.  In addition, DSI shall perform any other actions reasonably requested by en2go to assure adequate protection of en2go’s interests in its Intellectual Property Rights contained in the Customized Product and Product.  DSI shall not distribute or sublicense a Customized Product or Product pursuant to mass-market or “shrink-wrap” licenses in those jurisdictions with respect to which DSI has been advised by legal counsel to DSI that such licenses are not enforceable.  The provisions of the preceding sentence shall not impair the rights of DSI or End Users in respect of a Customized Product or Product distributed or licensed prior to the receipt of such advice by legal counsel.

 

3.5.   DSI shall comply with en2go’s use policies attached hereto as Appendix E , and shall use best efforts to cause its End Users and Sub-Distributors to comply with such policies.

 

4.               EN2GO LICENSE RESTRICTIONS

 

4.1.   DSI will not disassemble, modify, decompile, reverse engineer or attempt to derive the Source Code for the Customized Product.  In addition, DSI will not use the Customized Product in any manner to encumber, provide service bureau, time sharing, rent or lease the rights granted by this Agreement.  DSI’s rights in the Customized Product and Product will be limited to those expressly granted in this Agreement.

 

4.2.   DSI shall not (i) use any en2go Marks in a way that implies DSI is an agency or branch of en2go, or (ii) modify or alter the Source Code of the Customized Product in any way.

 

4.3.   DSI agrees not to resell, distribute or sublicense the Customized Product or Product to third parties other than Sub-Distributors and End Users, except where such third parties are approved in writing in advance by en2go, such approval not to be unreasonably withheld.

 

4.4.   The Customized Product and Product and all related documentation are protected under copyright and trade secret laws and contain proprietary information of en2go and its licensors.  DSI shall abide by the terms of any proprietary notices or markings, and shall use the documentation and the Customized Product and Product only for the purposes contemplated by this Agreement, and shall not disclose to others or reproduce the Customized Product or Product (except as specifically permitted under this Agreement), unless specifically authorized by en2go or required by law, or relevant in any legal proceeding between the parties, and shall be liable for all loss or damage to en2go from any failure to so abide or from any unauthorized disclosure in violation of this Section 4 , of the Customized Product, Product or related documentation by DSI or its agents.

 

 

 

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5.               DSI LICENSE RESTRICTIONS

 

5.1.   en2go will not disassemble, modify, decompile, reverse engineer or attempt to derive the Source Code for the Live Streaming Service.  In addition, en2go will not use the Live Streaming Service in any manner to encumber, provide service bureau, time sharing, rent or lease the rights granted by this Agreement.  en2go’s rights in the Live Streaming Service will be limited to those expressly granted in this Agreement.

 

5.2.   en2go shall not (i) use any DSI Marks in a way that implies en2go is an agency or branch of DSI, or (ii) modify or alter any of the Source Code used in the Live Streaming Service in any way.

 

5.3.   The Live Streaming Service and all related documentation are protected under copyright and trade secret laws and contain proprietary information of DSI and its licensors. en2go shall abide by the terms of any proprietary notices or markings, and shall use the documentation and the Live Streaming Service only for the purposes contemplated by this Agreement, and shall not disclose to others or reproduce the Live Streaming Service (except as specifically permitted under this Agreement), unless specifically authorized by DSI or required by law, or relevant in any legal proceeding between the parties, and shall be liable for all loss or damage to en2go from any failure to so abide or from any unauthorized disclosure in violation of this Section 5 , of the Live Streaming Service or related documentation by en2go or its agents.

 

6.               APPOINTMENT OF RESELLER; RELATIONSHIP OF THE PARTIES

 

6.1.   en2go hereby appoints DSI as an authorized, non-exclusive Value-Added Reseller and reseller within the Territory.  DSI agrees not to market and resell any other broadcast and media delivery platform except for the Product. A “Value-Added Reseller” or “VAR” develops, owns and licenses, to one or more Sub-Distributors and/or End Users, one or more value-added Applications in conjunction with the Customized Product.  A VAR licenses its Application with each Customized Product it distributes and a reseller has the right to distribute or license the Customized Product or Product on a stand-alone basis. The relationship between the parties shall be that of VAR and reseller licensing products and purchasing services as an independent contractor from en2go and reselling and sublicensing to Sub-Distributors and End Users.  DSI and its employees are not agents or representatives of en2go for any purpose and have no power or authority to represent, act for, bind or commit en2go.  Except as stipulated in this Agreement, neither party shall have any rights, power, or authority to act or to create any obligation, express or implied, on behalf of the other.  Any place or places of business maintained by DSI in connection with the performance of this Agreement shall be maintained at DSI’s own name.

 

6.2.   DSI hereby appoints en2go as an authorized, non-exclusive reseller within the Territory. en2go agrees not to market and resell any other Live Streaming Service except for DSI’s Live Streaming Service.  A reseller has the right to distribute or license the Live Streaming Service on a stand-alone basis or in conjunction with the Product. The relationship between the parties shall be that of reseller licensing products and purchasing services as an independent contractor from DSI and reselling and sublicensing to end users.  en2go and its employees are not agents or representatives of DSI for any purpose and have no power or authority to represent, act for, bind or commit DSI.  Any place or places of business maintained by en2go in connection with the performance of this Agreement shall be maintained at en2go’s own name.

 

6.3.   Upon payment of the license fees specified on Appendix D and upon completion of the development of the Customized Product, en2go will deliver in object-code form, one copy of the Customized Product to DSI.  DSI shall sell the Customized Product and Product according to the list base prices set forth on en2go’s standard price list to be provided to DSI, as may be amended from time to time by en2go at its sole discretion.

 

 

 

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6.4.   Upon the Effective Date, DSI will deliver in object-code form, a downloadable version of th


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