First Link License Agreement - 1043133 Ontario Inc. and Colorado Satellite Broadcasting Inc.
FIRST LINK LICENSE AGREEMENT THIS AGREEMENT made the - day - of, 1997. BETWEEN: 1043133 ONTARIO INC. ("104") THE FIRST PARTY AND: COLORADO SATELLITE BROADCASTING, INC. ("CSB") THE SECOND PARTY WHEREAS: (1) pursuant to the terms of an Asset Purchase Agreement made 5 September 1997 among New Frontier Media, Inc., CSB and 104, 104 is required to grant to CSB a license for certain subscription management software (known as "First Link" version 2 and herein called the "Software"); and (2) the parties desire to set forth below the terms of such license. FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. GRANT OF LICENSE. In consideration of CSB's agreement to abide by the terms and conditions of this License Agreement, 104, as licensor, grants to CSB a non-exclusive, royalty-free license to use and display the Software on a single computer with a single central processing unit (collectively, the "CPU") at a single location so long as CSB complies with the terms of this License Agreement and to use the source code related to the Software solely for the purpose of maintaining the Software (and, in this Agreement, the term "Software" includes such source code). The CPU on which CSB uses the Software may be a multiuser system and this License Agreement covers all users who have access to the CPU. 104 reserves all rights not expressly granted to CSB. CSB may not loan, rent, lease, or transfer the Software to another except as part of a permanent transfer of the Software (as provided below) of all of the Software and printed materials. <PAGE> 2 2. OWNERSHIP OF SOFTWARE. CSB shall own the magnetic or other physical media on which the Software is originally or subsequently recorded or fixed, but an express condition of this License Agreement is that 104 retains title and ownership of the Software recorded on the original copy(ies) and all subsequent copies of the Software, regardless of the form or media in or on which the original and other copies may exist. This license is not a sale of the original Software or any copy. 3. COPY RESTRICTIONS. This Software (including any images, photographs, animations, videos, audio, music, and text incorporated therein) and the accompanying written materials are copyrighted. Unauthorized copying of the Software, including Software which has been modified, merged, or included with other software, or of the written materials is expressly forbidden. CSB may be held legally responsible for any copyright infringement which is caused or encouraged by its failure to abide by the terms of this License Agreement. Subject to the aforementioned restrictions, CSB may make one copy of the Software solely for backup purposes. CSB must reproduce and include the copyright notice on the backup copy. 4. USE RESTRICTIONS. CSB may physically transfer the Software from one computer to another provided that the Software is used on only one computer at a time. CSB may not distribute copies of the Software or accompanying written materials to others. CSB may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software. CSB may not modify, adapt, translate or create derivative works based on the written materials. 5. TRANSFER RESTRICTIONS. This software is licensed only to CSB and may be transferred by CSB only on a permanent basis provided the transfer is made in conjunction with the purchase of substantially all of the outstanding capital stock or assets of CSB by the third party and further provided that CSB retains no copies and such third party agrees to the terms of this License Agreement. If the Software is an upgrade, any transfer must include the most recent version and all prior versions. In no other event may CSB transfer, assign, rent, lease, sell or otherwise dispose of the Software on a temporary or permanent basis. 6. TERMINATION. This license is effective until terminated. This license will terminate automatically without notice from 104 if CSB fails to comply with any provision of this License Agreement. Upon termination CSB shall destroy the written materials and all copies of the Software, including modified copies, if any. 7. UPDATE POLICY. 104 may create, from time to time, updated versions of the Software. 104 will make such updates available at no cost to CSB. 104 makes a commitment to provide any updates or revisions to the Software. 8. LIMITED WARRANTY. The Software and accompanying written materials are provided "as is" without warranty of any kind. 104 does not warrant, guarantee or make any representations regarding the use, or the results of use, of the Software or written materials in terms of correctness, accuracy, reliability, currentness, or otherwise. The <PAGE> 3 entire risk as to the results and performance of the Software is assumed by CSB. If the Software or written materials are defective CSB, and not 104, shall assume the entire cost of all necessary servicing, repair, or correction. 104 warrants to CSB that the media on which the Software is recopied is free from defects in materials and workmanship under normal use and service for a period of 90 days from the date of delivery as evidenced by a copy of the receipt. THE ABOVE IS THE ONLY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE THAT IS MADE BY 104. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 104, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND CSB MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. Neither 104 nor anyone else who has been involved in the creation, production or delivery of the Software shall be liable for any direct, indirect, consequential or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use or inability to use the Software even if CSB has been advised of the possibility of such damages. In the event of any conflict between any provision in this limited warranty and any applicable provincial or state legislation, the applicable provincial or state legislation takes precedence over the contravening provision. 9. GOVERNING LAW. This License Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein and shall benefit the parties and their successors. <PAGE> 4 10. LEGAL COSTS. Should any dispute be commenced between the parties concerning any provision of this Agreement or the rights and duties of any party in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorneys' fees in such connection with enforcing its rights or defending itself, as the case may be. IN WITNESS OF WHICH the parties have executed this Agreement. ) ) 1043133 ONTARIO INC. ) ) ) Per: ) ------------------------------ ) Authorized Signing Officer ) ) ) COLORADO SATELLITE ) BROADCASTING, INC. ) ) ) Per: ) ------------------------------ ) Authorized Signing Officer )