License Agreement - Burst.com Inc. and Eagle Wireless International Inc.
LICENSE AGREEMENT BETWEEN
BURST.COM, INC. & EAGLE WIRELESS INTERNATIONAL, INC.
This Agreement, entered into this 30th day of January 2001, is between
Burst.Com, Inc. ("Burst"), a Delaware corporation with its principal place of
business at 500 Sansome Street, Suite 500, San Francisco, CA 94111, and Eagle
Wireless International, Inc. ("Eagle"), a Texas corporation with its principal
place of business at 101 Courageous Drive, League City, Texas 77573.
WHEREAS, Burst is the developer and owner of the Burstware(R) software
program, which enables "Faster-Than-Real-Time(R)" delivery of full-motion video
and CD-quality audio over networks;
WHEREAS, Eagle is a manufacturer of digital set top boxes and also provides
fiber to the home broadband services to gated residential communities. Eagle
desires to acquire an exclusive license with respect to use of Burstware in
providing broadband services to gated residential communities, including
multi-dwelling units (i.e., apartment complexes); and hospitality venues (i.e.,
hotel and motel complexes) and a non-exclusive license with respect to the use
of Burstware in all other fields of use.
WHEREAS, Burst is willing to grant and Eagle is willing to accept a license
under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
DEFINITIONS
When used in this Agreement:
"Affiliate" means with respect to each party any legal entity that directly
or indirectly controls, is controlled by, or is under common control with the
party, but only for so long as such control continues. For purposes of this
definition, "control" means the power, whether or not normally exercised, to
direct the management and affairs of an entity. No entity shall be deemed to
control a party unless such entity owns directly or indirectly fifty-one percent
(51%) or more of its voting shares.
"Broadband services" means broadband service connections that take the form
of Digital Subscriber Lines (DSL), cable modems, wireless/fixed-wireless
systems, ISDN, T1, or T3 services. Broadband services can be offered by
telephone companies, cable operators and independent service providers.
"Burstware Conductor(TM)" means the computer program included among the
Licensed Software that is designed to operate on a single computing device and
that manages the distribution of audio and/or video content from one or more
hardware servers on which the
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Burstware Server software has been installed to Burstware Players installed on
client computers. Each Burstware Conductor requires a Burstware License Key
configured for the host name or IP address of the computer on which the
Burstware Conductor is installed.
"Burstware License Key" means the unique, encrypted software program
provided by Burst (only upon payment of the applicable license fees) that is
designed to prevent use of the Licensed Software beyond the scope of the license
paid for by Eagle by limiting, as appropriate, and in addition to other limits,
the number of Concurrent Burstware Player Connections, the amount of Managed
Bandwidth, and the number of Burstware Servers that the Burstware Conductor can
manage.
"Burstware Player(TM)" means the computer program included among the
Licensed Software that operates on a single-user client computer, permitting
that computer to receive and play audio and/or video content delivered by the
Burstware Server software.
"Burstware Server(TM)" means the computer program included among the
Licensed Software that stores audio and/or video content and delivers it to
client computers for viewing with the Burstware Player.
"Concurrent Burstware Player Connections" means the number of simultaneous
connections between Burstware Players installed on client computers and
Burstware Servers installed on hardware servers that the Burstware License Key
enables the Burstware Conductor to manage simultaneously.
"Documentation" means all materials in written, computer readable or other
form containing information about the Licensed Software that accompany the
Licensed Software, or that Burst may deliver to Eagle during the term of this
Agreement for use in the marketing and distribution of the Licensed Software and
for distribution to End Users.
"Eagle" means "Eagle Wireless International, Inc." and its Affiliates.
"Intellectual Property Rights" means all intellectual property rights under
the laws of the United States, any of its states or territories and any other
nation, including without limitation all patent rights, copyrights, trade
secrets, trademarks, trade names and other proprietary rights.
"Licensed Software" means Burst's Burstware Conductor, Burstware Server and
Burstware Player (collectively "Burstware") computer. Licensed Software does
include any modifications or additions to the Licensed Software, including
without limitation, any new versions, updates, or enhancements created or
procured by Burst after the Effective Date of this Agreement.
"Licensed Territory" means the United States and its territories and
possessions.
"Managed Bandwidth" means the total bandwidth, measured in megabits per
second, used by the Burstware Server software to deliver audio and/or video
content to Burstware Players.
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"Merger or Sale" shall mean a merger, acquisition or consolidation of
either party with, into or by any other corporation or corporations, or a sale
of all or substantially all of the assets of such party, resulting in the
stockholders of such party immediately prior to such transaction holding less
than a majority of the outstanding voting equity securities of the surviving
corporation in such merger, consolidation, acquisition or sale of assets
reorganization (other than a bona fide equity financing resulting in proceeds to
such party's capital accounts).
"Program Error" means a program defect or "bug" sufficiently material that
it results in a version of the Licensed Software, in the form delivered by Burst
to Eagle, at the time it is delivered by Burst to Eagle, failing to
substantially conform to the Documentation for that version. A respect in which
the Licensed Software fails to substantially conform to the Documentation shall
not be considered a Program Error unless Burst is able to replicate it on a
computer system already in its possession or on a computer system supplied to
Burst by Eagle.
"Trademarks" means the trademarks listed in Exhibit B, which Burst may
amend at any time upon thirty (30) days prior written notice to Eagle.
1. LICENSED SOFTWARE
Burstware. The Burstware software to be licensed to Eagle under this Agreement
shall be a version 2.0 and all subsequent future releases during the license
period of Burst's general release software.
2. GRANT OF LICENSE
2.1 Terms and Conditions. On the terms and conditions of this Agreement,
and upon payment of all applicable license fees, Burst grants to Eagle a
non-exclusive (except as set forth in Section 2.3 below), non-transferable
license to: (a) install and use Burstware in machine-readable, object code form
only in the configuration and to the scope identified in and enabled by the
Burstware License Key(s) provided by Burst; and (b) to deploy Eagle's Burstware
License across multiple servers and locations.
2.2 Effective Date. The term of the license will commence upon the earlier
of (i) Eagle's first commercial deployment of the Burstware software, or (ii)
January 1, 2002.
2.3 Exclusive Period. For a period of two (2) years from the effective date
of this Agreement, Eagle will be granted a license that provides for exclusivity
in the field-of-use: for fiber and wireless to the home market for broadband
services to gated residential communities, including multi-dwelling units (i.e.,
apartment complexes); and hospitality venues (i.e., hotel and motel complexes).
Except as expressly stated in this section, the license and rights granted under
this Agreement are non-exclusive, and nothing in this Agreement shall be
construed as granting to Eagle any exclusive rights with respect to any other
field of use.
2.4 Exclusivity Carve-Out. All existing customers with licenses covering
the field-of-use identified in paragraph 2.3 are grandfathered. Any parties with
whom Burst is currently
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in negotiations for purposes of licensing, merger, acquisition, or an asset sale
as of January 31, 2001 are also grandfathered and covered by the language of
this exemption.
2.5 Extension of Exclusive Period. Eagle shall be entitled at its option to
extend the Exclusive Period for an additional twelve (12) months on the same
terms and conditions, provided Eagle purchases at least an additional $200,000
of client licenses during the initial 24-month term.
2.6 Licensed Territory. The United States and its territories and
possessions.
2.7 License Fees. The initial Burstware license term of 12 months will be
extended to 24 months. In consideration of the extended license term granted
herein, Eagle will prepay to Burst a non-refundable and non-creditable license
fee of $250,000.
2.8 Form of Payment. The initial license fee will be paid in the form of
130,000 shares of "free trading" common stock of Clearworks.net, Inc., an
American Stock Exchange company with ticker symbol "CLW." Said common stock will
convert to 104,600 shares of freely tradable Eagle stock on January 31, 2001,
the closing date of the acquisition of Clearworks by Eagle. Said stock transfer
and merger transaction are defined more fully in the Securities Purchase
Agreement dated January 30, 2001 and attached as Exhibit A. 1.7 Payment.
Software fees under the initial license term shall be due and payable on the
date of the signing of this Agreement in Clearworks common stock and converted
into Eagle common stock as described in Exhibit A. Additional client license
fees shall be paid in cash due within thirty (30) days following the date upon
which the key is delivered.
2.10 Annual Renewal. Upon expiration of the initial 24-month term, the
license will be renewable annually for a fee equal to 30% of the initial cost of
the client licenses being renewed.
2.11 Waiver of Annual Renewal. In the event of a Burst merger or asset sale
prior to the end of Eagle's 144 holding period or the effective date of an S-1
registration of Burst common stock (stock received in exchange for an investment
in Burst, see, attached Exhibit A), Eagle's Burst shares will be, at Eagle's
option, liquidated for a value equal to the value received by owners of
freely-tradable Burst common stock. If the liquidation value of Burst stock is
less than $0.50, Eagle's Burst license will be extended an additional (12)
months at no additional cost to Eagle.
2.12 Renewal of License Upon Acquisition of Burst.Com. If Burst or its
assets are acquired during the term of Eagle's software license, and if
Burstware technology is subsequently embodied in a new software package marketed
by the acquiring company, Eagle will be accorded a license to the new software
under terms substantially similar to the terms of the initial Burstware license
at no additional cost to Eagle.
2.13 Documentation. Burst grants to Eagle a non-exclusive license to use
the Documentation in connection with Eagle's use of the Licensed Software.
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2.14 Limitation on Use. Eagle understands and acknowledges that use of the
Licensed Software is controlled by the Burstware License Key. Eagle may not use
the Licensed Software beyond the scope enabled by the Burstware License Key
provided by Burst to Eagle upon payment of the applicable license fee. The
Licensed Software functions as three separate programs, the Burstware Conductor,
Burstware Server, and Burstware Player, that operates cooperatively. Eagle may
install and use only the number of copies of the Burstware Conductor and
Burstware Server software specifically enabled by the Burstware License Key
provided to Eagle by Burst. Eagle may install an unlimited number of copies of
the Burstware Player software for use by Eagle, provided Eagle does not receive
any direct payment for doing so, but may simultaneously use only the number of
copies of the Burstware Player specifically enabled by the Burstware License Key
provided to Eagle by Burst. Eagle may not modify or alter the Licensed Software
or Burstware License Key to increase the scope of its use of the Licensed
Software. Further, Eagle may not use any device, process or computer program
that increases, directly or indirectly, the scope of use of the Licensed
Software enabled by the Burstware License Key provided to Eagle by Burst. If
Eagle wishes to increase the scope of its licensed use of the Licensed Software,
Eagle must purchase an additional Burstware License Key from Burst.
2.15 Back-Up Copies. Eagle may make one copy of the Licensed Software
solely for the back-up or archival purposes, provided that such copy must
contain all proprietary notices affixed to or appearing in the original copy.
2.16 Sun Microsystems Java(TM) Runtime Environment Provisions. Eagle may
not modify the Java Platform Interface ("JPI", identified as classes contained
with the "java" package or any sub packages of the "java" package), by creating
additional classes within the JPI or otherwise causing the addition to or
modification of the classes in the JPI. In the event that Eagle creates any
Java-related API and distributes such API to others for application development,
Eagle must promptly publish broadly, an accurate specification for such API for
free use by all developers of Java-based software.
2.17 Hazardous Environments. The Licensed Software is not designed or
intended for use in online control equipment in environments requiring fail-safe
performance, such as the operation of nuclear facilities, aircraft communication
or control systems or life support systems, in which software failure could lead
to personal injury or severe property or environmental damage. Eagle warrants
that it will not use or allow the use of the Licensed Software for such purposes
2.18 Notification of Errors. In the event that Eagle discovers any errors,
bugs or other irregularity in the Licensed Software, Eagle shall promptly notify
Burst of each such error, bug or irregularity. For the one (1) year period
following the Effective Date, Burst will provide Eagle with all bug fixes and
error corrections that may be developed by Burst for the Licensed Software.
3. PRICING and TAXES
3.1 Pricing. The prices payable by Eagle to Burst on a per client basis for
the initial software license will be an amount equal to $25.00 per client up to
10,000 clients.
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3.2 Additional Client Pricing. Additional clients may be added for the
lower of (i) the lowest pricing Burst offers any customer, or (ii) the
following:
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Additional Clients Price Per Client
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10,000 - 15,000 $20.00
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15,000 - 20,000 $15.00
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20,000 - 25,000 $10.00
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25,000 + $5.00
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3.3 Taxes. With the sole exception of taxes based on Burst's net income,
Eagle shall pay all sales, use, excise, value added or other taxes that may
arise out of Eagle's installation or use of the Licensed Software.
4. OWNERSHIP AND USE RESTRICTIONS
4.1 Ownership. Eagle acknowledges that the Licensed Software, all
enhancements, corrections and modifications to the Licensed Software, all
copyrights, patents, trade secrets, or trademarks or other intellectual property
rights protecting or pertaining to any aspect of the Licensed Software (or any
enhancements, corrections or modifications) and the Documentation, are and shall
remain the sole and exclusive property of Burst and, where applicable, Burst's
suppliers. This Agreement does not convey title or ownership to Eagle, but
instead gives Eagle only the limited rights set forth in Sections 1 and 2. Burst
reserves all rights not expressly granted by this Agreement.
4.2 Joint Ownership. Subject to negotiation and reasonable business and
legal consideration, Burst and Eagle agree to jointly file patent applications
covering inventions embodying intellectual property and know-how of the two
companies that may result from Eagle's development of unique applications of the
Licensed Software.
4.3 Software Development or Customization. Burst agrees to use its best
efforts to accommodate all Eagle requests for custom enhancements to Burstware,
provided that Eagle shall be responsible for all costs incurred by Burst in
making the modifications. Such work is to be billed at Burst's actual cost plus
30%.
4.4 Restrictions. Except as expressly authorized in this Agreement, Eagle
may not: (i) use, make, sublicense, rent, lease, sell, display, distribute or
copy originals or copies of the Licensed Software, or to permit anyone else to
do so; (ii) modify, create derivative works of, reverse engineer, unencrypt,
decompile, disassemble or otherwise translate the Licensed Software or allow
anyone else to do so (except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation); (iii)
remove any patent, copyright or trademark or other intellectual property notices
that may appear on any part of the Licensed Software or the documentation; and
(iv) assign or transfer its rights under this Agreement or its rights to the
Licensed Software without the prior written consent of Burst.
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Upon any such transfer or assignment, Eagle must transfer all copies of the
Licensed Software and assignee must agree in writing to all the terms of this
Agreement.
4.5 Transfer. Neither party may assign or transfer its rights under this
Agreement or its rights to the Licensed Software without the prior written
consent of the other party. Upon any such transfer or assignment on the part of
Eagle, Eagle must transfer all copies of the Licensed Software and Documentation
and assignee must agree in writing to all the terms of this Agreement. Upon any
such transfer or assignment on the part of Burst, the Transferee shall honor all
the terms of this Agreement. Notwithstanding the foregoing, each party may
transfer its rights under this Agreement without the consent of the other party
in connection with a Sale or change of control of such party; provided however,
that the acquiring party shall be bound by the terms of this Agreement.
4.6 Proprietary Notices. Eagle shall not remove any patent, copyright or
trademark or other intellectual property notices that may appear on any part of
the Licensed Software or the Documentation.
4.7 Trade Secrets. Eagle acknowledges that the Licensed Software, in its
source code form, contains valuable trade secrets belonging to Burst. Eagle may
not reverse engineer, unencrypt, decompile, disassemble or otherwise translate
the Licensed Software or allow anyone else to do so.
4.8 Audit Rights. Eagle authorizes Burst or its designee to audit its
compliance with this Agreement, as Burst deems reasonable.
4.9 Notice to Employees and Agents. Eagle will use commercially reasonable
efforts to inform its employees, agents and others using the Licensed Software
under this Agreement that it may not be used, copied or transferred in violation
of this Agreement.
4.10 Irreparable Harm. Eagle acknowledges that money damages may not be an
adequate remedy for any breach or violation of any requirement set forth in
Section 4 of this Agreement and that any such breach or violation may leave
Burst without an adequate remedy at law. Eagle therefore agrees that, in
addition to any other remedies available at law, in equity or under this
Agreement, Burst shall be entitled to obtain temporary, preliminary and
permanent injunctive relief, without bond, from a court of competent
jurisdiction to restrain any such breach or violation.
5. MAINTENANCE AND SUPPORT
Except as set forth in this Agreement, Eagle is not entitled to any maintenance
or support for the Licensed Software or any upgrades or enhancements under this
Agreement.
6. LIMITED WARRANTY
6.1 Ownership. Burst warrants that it owns or has the right and authority
to license the Licensed Software or Documentation to Eagle on the terms and
conditions of this Agreement.
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6.2 Media and Documentation. Burst warrants that if the Licensed Software's
media or Documentation is in a damaged or physically defective condition at the
time it is delivered to Eagle, and if it is returned to Burst (postage prepaid)
within ninety (90) days of delivery, Burst will provide Eagle with replacements
at no charge.
6.3 Licensed Software. Burst warrants that, in the form delivered to Eagle
by Burst, the Licensed Software shall perform substantially in accordance with
the Documentation for ninety (90) days after delivery to Eagle. Burst's warranty
is conditioned upon: (a) the use of the Licensed Software in accordance with the
Documentation and other instructions provided by Burst and shall be null and
void if Eagle alters or modifies the Licensed Software without Burst's prior
written approval, does not use the Licensed Software in accordance with the
Documentation and Burst's instructions, or if the Licensed Software fails
because of any accident, abuse or misapplication; and (b) Eagle notifying Burst
in writing of the claimed nonconformity within ninety (90) days after delivery
of the Licensed Software to Eagle. As Burst's sole liability and Eagle's sole
remedy respecting the Licensed Software's nonconformance with the limited
warranty set forth in this Section 6.3, Burst may at its option: (i) use
reasonable efforts to correct the Licensed Software to make it conform
substantially with the specifications set forth in the Documentation; (ii)
replace the Licensed Software; or (iii) upon return of the Licensed Software and
Documentation to Burst, refund the license fees paid by Eagle under this
Agreement and terminate this Agreement. BURST DOES NOT REPRESENT OR WARRANT THAT
THE LICENSED SOFTWARE WILL OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE,
THAT THE LICENSED SOFTWARE WILL MEET EAGLE'S REQUIREMENTS OR EXPECTATIONS, OR
THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. NO OTHER WARRANTY
EXCEPT AS SET FORTH IN SECTION 6, BURST IS PROVIDING THE LICENSED SOFTWARE
AND THE DOCUMENTATION "AS IS," AND, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, BURST SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES,
CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ORAL OR
WRITTEN) WITH RESPECT TO THE LICENSED SOFTWARE OR DOCUMENTATION INCLUDING
WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE (WHETHER OR NOT BURST KNOWS, HAS REASON TO KNOW, HAS BEEN
ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR CONDITIONS OF
TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON
OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. BURST ALSO EXPRESSLY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER
THAN EAGLE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE
OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
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8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY
OF BURST FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE OR
DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF
ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY PATENT OR COPYRIGHT
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, SHALL NOT EXCEED THE
TOTAL AMOUNT OF ALL LICENSE FEES THAT EAGLE HAS ACTUALLY PAID UNDER THIS
AGREEMENT. NEITHER BURST NOR ANY OF ITS RESELLERS, SUPPLIERS OR LICENSORS SHALL
BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR
PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, OR FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF
USER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE (OR INABILITY TO USE) THE
LICENSED SOFTWARE EVEN IF BURST OR RESELLER, SUPPLIER OR LICENSOR HAS BEEN AWARE
OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL BURST BE
LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION
AROSE OR SHOULD HAVE BEEN DISCOVERED. BECAUSE SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,
THE ABOVE LIMITATION MAY NOT APPLY. BECAUSE SOME STATES/JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. TERMINATION
Without prejudice to any other rights it may have under this Agreement or
at law or equity, Burst may terminate this Agreement and return all license fees
paid by Eagle if Eagle fails to comply with the terms of this Agreement. Upon
termination of this Agreement for any reason, Eagle will immediately discontinue
use of the Licensed Software, destroy or return to Burst all copies of the
Licensed Software and Documentation in whatever form they exist, including all
back-up copies, and certify in writing to Burst that all copies have been
destroyed. Manufacturer/contractor is Burst.Com, Inc., 500 Sansome Street, Suite
500, San Francisco, California 94111.
10. INDEMNIFICATION
The Licensed Software is intended for use only with properly licensed
media, content, and content creation tools. It is Eagle's responsibility to
ascertain whether any copyright, patent or other licenses are necessary and to
obtain any such licenses to create, encode and/or transmit such media and
content. Eagle agrees to create, encode and/or transmit only those materials for
which it has the necessary patent, copyright or other permissions, licenses
and/or clearances. Eagle agrees to hold harmless, indemnify and defend Burst,
its officers, directors and employees, from and against any losses, damages,
fines and expenses (including attorneys' fees and costs) arising out of or
relating to any claims that Eagle has encoded, compressed, copied or transmitted
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any materials (other than materials provided by Burst) in connection with the
Licensed Software in violation of another party's rights or in violation of any
law.
11. CONFIDENTIALITY
11.1 Eagle Confidentiality Obligations. Eagle shall maintain the
confidentiality of any confidential information regarding the Licensed Software,
Burst, or Burst's past, present or future products, business plans or
strategies. Information shall be deemed confidential only if it is marked
"confidential" in writing or if it is expressly identified as "confidential"
orally. Eagle shall indemnify Burst for any loss or damage Burst may sustain as
a result of the wrongful use or disclosure by Eagle (or any employee, agent,
Eagle, or contractor of Eagle) of confidential information regarding the
Burstware Software, Burst, or Burst's past, present or future products.
11.2 Burst Confidentiality Obligations. Burst shall maintain the
confidentiality of any confidential information regarding Eagle, or Eagle's
past, present or future products, business plans or strategies. Information
shall be deemed confidential only if it is marked "confidential" in writing or
if it is expressly identified as "confidential" orally. Burst shall indemnify
Eagle for any loss or damage Eagle may sustain as a result of the wrongful use
or disclosure by Burst (or any employee, agent, Eagle, or contractor of Burst)
of confidential information regarding Eagle's past, present or future products.
11.3 Exceptions. The obligations set forth in Sections 11.1 and 11.2 shall
not apply with respect to any Confidential Information that (a) is or becomes
publicly known under circumstances involving no breach of the terms of Sections
11.1 or 11.2; (b) is generally disclosed to third parties by the owner of such
Confidential Information without restrictions on its use or disclosure; (c) is
independently developed by the party to whom it was disclosed; or (d) is
approved for use or disclosure in writing by the owner of such Confidential
Information.
11.4 Agreement is Confidential. This Agreement is strictly confidential.
Neither party shall disclose any of the terms of this Agreement to any third
party without the prior written consent of the other, except as may be necessary
to comply with applicable law. If either party intends to disclose any of the
terms of this Agreement, it shall provide the other with ten (10) days prior
written notice of the intended disclosure. Neither party's consent to a proposed
disclosure shall be unreasonably withheld.
12. GENERAL TERMS
12.1 Export Regulations. Eagle agrees to comply strictly with all export
laws and restrictions or regulations of the United States or foreign agency or
authority, and not to export, or allow the export or re-export of the Licensed
Software or any technical data in violation of any such restriction, law or
regulation, without all necessary approvals.
12.2 U.S. Government Restrictions. The Licensed Software and documentation
are provided with RESTRICTED RIGHTS. The use, duplication or disclosure by the
United States Government of the Licensed Software is subject to the restrictions
as set forth in the Rights in Technical Data and Computer Software Clauses in
DFARS 252.227-7013(c)(1)(ii) and FAR 52.227-19(c), or any successor clauses.
Manufacturer/contractor is Burst.Com, Inc., 500 Sansome Street, Suite 500, San
Francisco, California 94111.
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12.3 Governing Law and Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and the United
States without reference to conflicts of laws principles. Eagle consents to the
exclusive jurisdiction and venue of the federal and state courts in San
Francisco County, California for resolution of any disputes concerning this
Agreement. This Agreement will not be governed by the United Nations Convention
of contracts for the International Sale of Goods, the application of which is
hereby expressly excluded.
12.4 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover from the losing party its reasonable attorney's fees, costs
and necessary disbursements in addition to any other relief to which such party
may be entitled.
12.5 Assignment. Eagle may not assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent of Burst,
which Burst shall not withhold unreasonably. Burst may assign or delegate its
obligations under this Agreement as part of a sale or transfer of a substantial
portion of its business to which this Agreement relates.
12.6 Complete Understanding. This Agreement, and any accompanying Burst
Order Form(s) accepted by Burst constitutes the entire agreement between the
parties with respect to its subject matter and supersedes and replaces all prior
or contemporaneous understandings or agreements, written or oral, regarding its
subject matter. No amendment to or modification of this Agreement will be
binding unless in writing and signed by duly authorized representatives of both
Burst and Eagle. The acceptance of any purchase order placed by Eagle is
expressly made conditional on Eagle's consent to the terms set forth in this
Agreement, and not those in the purchase order form, and Eagle agrees that any
such conditional or different terms are void.
12.7 Absence of Third Party Beneficiaries. Unless otherwise expressly
provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person other than Burst and Eagle any rights,
remedies or other benefits under or by reason of this Agreement.
12.8 Disclaimer of Agency. Burst and Eagle each acknowledges that the
parties to this Agreement are independent. Neither party is authorized or
empowered to act as agent or legal representative for the other for any purpose
and shall not on behalf of the other enter into any contract, warranty or
representation as to any matter. Neither party shall be bound by the acts or
conduct of the other and nothing herein shall be construed as creating a
partnership or joint venture.
12.9 Construction. This Agreement was executed after arms-length
negotiations between the parties, and its terms are not to be construed against
either party.
12.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
12.11 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of that provision or any other
available right or remedy.
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12.12 Headings. The section headings used in this Agreement are intended
for convenience only and shall not be deemed to modify, limit or supersede any
provision.
12.13 Severability. In the event that any provision of this Agreement is
found to be invalid, illegal or unenforceable pursuant to judicial decree or
decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
BURST, INC. EAGLE WIRELESS INTERNATIONAL, INC.
By: /s/ By: /s/
------------------------ ----------------------------------
Douglas Glen Dr. H. Dean Cubley
------------------------- ----------------------------------
(Print Name) (Print Name)
Title: President and CEO Title: President and CEO
------------------------- ----------------------------------
Date: January 30, 2001 Date: January 30, 2001
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<PAGE>
EXHIBIT A
SECURITIES PURCHASE AGREEMENT
13
<PAGE>
EXHIBIT B
BURST.COM, INC. TRADEMARKS
Burstaid(TM)
BURSTCAST(TM)
burst.com(TM)
burst.com & Design(TM)
Burst Enabled(TM)
Burst Hosting(TM)
BURSTTV(TM)
Burstware(R)
Burstware & Design(TM)
Burstware Bridge(TM)
Burstware Conductor(TM)
Burstware Player(TM)
Burstware Server(TM)
Empowered by Burstware(TM)
"Faster Than Real Time"(R)
Instant Video(R)
True Edge(TM)
True Edge Media
Hosting(TM) True Edge Media Server(TM)
"Why Stream When You Can Burst?"(TM)
14