rVUESERVICES AND LICENSE AGREEMENT BYAND BETWEEN ARGODIGITAL SOLUTIONS, INC.

 

 

 

 

 

 

 

 

 

 

rVUE SERVICES AGREEMENT AND LICENSE

 

This rVUE SERVICES AGREEMENT AND LICENSE (this “Agreement”) is dated as of May 5, 2009, by and between Argo Digital Solutions, Inc., a company organized under the laws of the State of Delaware, with its principal offices at 900 S.E. 3rd Avenue, Third Floor, Fort Lauderdale, Florida 33316, USA , (“ARGO”) and LEVOIP Corporation, a corporation organized under the laws of the State of Washington, with its principal offices at 701 Fifth Avenue, Suite 4200, Seattle, Washington 98104 (“LEVOIP”).

 

WHEREAS, ARGO designs and implements digital media marketing networks that target consumers at the point of purchase;

 

WHEREAS, Argo’s rVue® digital video platform, is a next-generation digital out-of-home system that delivers custom-created, live-motion digital media to large format LCD displays.

 

WHEREAS, LEVOIP has developed a digital project for a network of up to 50,000 screens in Italy and entered into a contract with PosteCom SpA, client and reseller, with an initial project of 3,000 screens; and

 

WHEREAS, ARGO wishes to grant LEVOIP an exclusive license to distribute and deploy rVue in Italy under certain conditions;

 

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, LEVOIP and ARGO agree as follows:

 

1.	DEFINITIONS

 

1.1.

Defined Terms. The following terms shall have the following meanings:

 

1.1.1.

“rVue Client Software” means that portion of the rVue software suite which is located at a Site.

 

1.1.2.

“Coordinator” means a qualified representative of a party designated by such party as project coordinator to be responsible for supervising and coordinating the implementation of any Statement of Work hereunder.

 

1.1.3.

“Documentation” means all documentation and other supporting technical information and materials for the Licensed Software.

 

1.1.4.

“Effective Date” means the date first set forth above, on which date the terms of this Agreement shall commence.

 

1.1.5.

“Intellectual Property Rights” means worldwide statutory and common law rights associated with: (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and “moral rights”; (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks (as defined herein); and (e) divisions, continuations, renewals and re-issuances of any of the foregoing, whether now existing or acquired in the future.

 

1.1.6.

“Law” means any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive, guideline, policy or rule of common law, or any governmental requirement or other governmental restriction or similar form of decision or determination, or any interpretation or administration of any of the foregoing by any national, state or local government (or any association, organization or institution of which any of the foregoing is a member, or to whose jurisdiction any thereof is subject, or in whose activities any thereof is a participant), whether now or hereafter in effect.

 

1.1.7.

“LEVOIP Customer” means any person or entity for whom LEVOIP, or its affiliates or agents, provides digital out-of-home network services utilizing the rVue digital platform to deliver, solicit and/or deploy advertising and promotional content.

 

 

1.1.8.

“LEIP.TV rVue” means the rVue Client Software and the rVue Server Software that has been customized for LEVOIP’s exclusive use in the Territory.

 

1.1.9.

“LEIP.TV rVue Program Standard Terms and Conditions” means the agreement between the end user of the LEIP.TV rVue Client Software and LEVOIP for the use of LEIP.TV rVue.

 

1.1.10.

“LEIP.TV rVue End User License Agreement” means the license agreement among the end user of the LEIP.TV rVue, ARGO, as the owner of rVue and LEVOIP as the exclusive Licensee of the Licensed Software.

 

1.1.11.

“Licensee” or “Licensee Party” means LEVOIP.

 

1.1.12.

“Licensor” or “Licensor Party” means ARGO.

 

1.1.13.

“Licensed Software” means, collectively: (a) the Client Software; (b) the Server Software, (c) the Documentation; and (d) any Updates.

 

1.1.14.

“Non-Recurring Engineering Expense” means the direct engineering labor cost associated with the customization of rVue for LEVOIP to develop LEIP.TV rVue pursuant to the Statement of Work. Capital costs for capital items, such as equipment used in the customization of the rVue software for LEVOIP, shall not be included in the definition of “Non-Recurring Engineering Expense.”

 

1.1.15.

“rVue” means the out-of-home media system owned and developed by ARGO for narrowcasting digital media advertisements. The rVue system facilitates (i) receipt of the advertising media from the advertiser, (ii) secure storage of the advertisements to be broadcast, (iii) scheduling of broadcasts and physical delivery of the advertising media to outlet display devices at specified network addresses. Periodically, the system produces proof of media delivery to each network endpoint and generates accounting reports that support billing of the advertiser and remittance to the outlet.

 

1.1.16.

“rVue Server Software” means those portions of the rVue software suite that are located at one or many head-end servers. The server software consists of two primary components: the rVue Management Software and the rVue Web Interface.

 

1.1.17.

“Site” means an individual display device owned by LEVOIP or a LEVOIP Customer, e.g. a flat-panel monitor, attached to a LEIP.TV rVue enabled media playing device, e.g. a local personal computer.

 

1.1.18.

“Site Commissioning” means the event whereby LEVOIP activates a customer Site through the LEIP.TV rVue software.

 

1.1.19.

“Statement of Work” means a plan for the development of the LEIP.TV rVue.

 

1.1.20.

“Territory” means the country of Italy.

 

1.1.21.

“Trademarks” means: (a) the trademarks, trade names and service marks used by a party, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names and service marks; and (c) such other marks and logotypes as either party may designate from time to time in writing.

 

1.1.22.

“Updates” means any modifications, error corrections, bug fixes, new releases or other updates of the Client Software, the Server Software and Documentation that may be provided or otherwise made available by ARGO from time to time to any of its customers.

 

 

2.	SCOPE OF AGREEMENT

 

2.1.

Limited Rights and Obligations. Each party hereby acknowledges and agrees that the scope of the relationship between the parties shall be limited to the purposes and activities expressly set forth 3 herein, and that the rights and obligations of the parties with respect to each other shall be limited to those expressly prescribed in this Agreement. Neither party has any right, obligation or responsibility not specifically provided herein, or authorized after the Effective Date by the mutual written agreement of the parties, and no such right, obligation or responsibility shall be implied by the terms and conditions of this Agreement or the conduct of the parties

 

3.	PHASE I ACTIVITIES – DISCOVERY AND ENVISAGING

 

3.1.

Coordinators. Each party shall designate a Coordinator to the other party in writing within ten (10) days after the Effective Date and may change such Coordinator thereafter upon ten (10) days prior written notice to the other party. Each party may designate different Coordinators for different phases under this Agreement.

 

3.2.

Define and Document Project Goals.Within ten (10) days after the designation of the Coordinators, ARGO and LEVOIP will commence to work together to create a high level business strategy to define the specific goals of the project. These will include:

 

3.2.1.

Statement of Objectives.

 

 

3.2.5.

Detailed specifications for customer display and computer equipment.

 

 

 

4.1.

All deliverables and services listed and specified in Section 3, will be implemented on a timetable to be developed once the items in section 3 have been approved by the parties.

 

5.	GRANT OF LICENSE; RESTRICTIONS

 

5.1.

Grant of License. ARGO hereby grants to LEVOIP an exclusive, sub licensable (to the extent specified in Section 5.2 below), transferable (to the extent set forth in Section 14.2) right and license to access, use, perform and display (publicly or otherwise) the Licensed Software in the Territory and for the Term of this Agreement (as defined in Section 13.1). The rights granted hereunder do not include the right of LEVOIP to have such rights exercised by a third party on LEVOIP’s behalf.

 

5.2.

Sublicense. To the extent necessary to deploy the Client Software to LEVOIP Customers, including PosteCom SpA and its affiliates, LEVOIP may sublicense the Client Software subject to the LEIP.TV rVue Program Standard Terms and Conditions and the LEIP.TV rVue End User License Agreement.

6.	ONGOING DELIVERABLES AND SERVICES

 

6.1.

Responsibilities of LEVOIP.

8.1.

ARGO’s Proprietary Rights. Except as otherwise set forth herein, as between ARGO and LEVOIP, ARGO own and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to ARGO’s Trademarks, the Licensed Software, including any portion(s) thereof and Updates thereto. LEVOIP shall have only those rights in and to ARGO’s Trademarks, the Licensed Software,and Updates thereto as are expressly granted to it under this Agreement.

 

14.8.

Relationship of the Parties. It is expressly understood that ARGO and LEVOIP intend by this Agreement to establish the relationship of independent contractors and do not intend to undertake the relationship of principal and agent or to create a joint venture or partnership between them or their respective successors in interests. Neither ARGO nor LEVOIP shall have any authority to create or assume, in the name or on behalf of the other party, any obligation, express or implied, nor to act or purport to act as the agent or the legally empowered representative of the other party hereto for any purpose whatsoever.

4.           Representations and Warranties of rVue. rVue represents and warrants as follows:

4.1           rVue has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby.

4.2           This Agreement has been duly executed and delivered by rVue and constitutes a valid and binding obligation enforceable against rVue in accordance with its terms.

5.           Indemnification.

5.1           By Argo. Argo agrees to protect, defend, indemnify and hold harmless rVue, its officers, directors, employees, agents, stockholders and affiliates and their respective successors and assigns, from, against and in respect of, and shall pay any and all losses, damages, charges, obligations, claims, encumbrances, deficiencies, costs or expenses (including reasonable legal fees and expenses) incident to any third party action, investigation, claim or proceeding (the forgoing being collectively referred to as “Losses”) suffered, sustained, incurred or required to be paid by such indemnified persons relating to, in connection with or resulting from (i) any representation or warranty of Argo in this Agreement being untrue or incorrect in any respect, including any claim by such third party which, [ILLEGIBLE] the truthfulness thereof, could constitute a breach of Argo’s representations or warranties hereunder; (ii) any breach or default of any covenant, agreement or commitment made by Argo in this Agreement; and (iii) any of the Excluded Liabilities.

5.2           By rVue. rVue agrees to protect, defend, indemnify and hold harmless Argo, its officers, directors, employees, agents, stockholders and affiliates and their respective successors and assigns, from, against and in respect of, and shall pay any and all Losses suffered, sustained, incurred or required to be paid by such indemnified persons relating to, in connection with or resulting from (i) any representation or warranty of rVue in this Agreement being untrue or incorrect in any respect, including [ILLEGIBLE] claim by such third party which, assuming the truthfulness thereof, could constitute a breach of rVue’s representations or warranties hereunder; (ii) any breach or default of any covenant, agreement or commitment made by rVue in this Agreement; and (iii) the Services Agreement or any Ancillary Agreement after the Assignment Date, except to the extent caused by any breach or default of any covenant, agreement or commitment made by Argo in the Argo Services Agreement.

5.3           Procedure. For purposes of this Section 5, the party entitled to indemnification shall be known as the “Indemnified Party” and the party required to indemnify shall be known as the “Other Party.” In the event that the Other Party shall be obligated to the Indemnified Party pursuant to [ILLEGIBLE] Section 5 or in the event that a suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Other Party may become obligated to the Indemnified Party hereunder, the Indemnified Party shall give prompt written notice to the Other Party of the occurrence of such event; provided, however, that the failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Other Party shall have been actually and materially prejudiced as a result of such failure. The Other Party shall defend, contest or otherwise protect against any such suit, action, investigation, claim or proceeding at the Other Party’s own cost and expense. The Indemnified Party shall have the right but not the obligation to participate at its own expense in the defense thereof by counsel of its own choice. In the event that the Other Party fails timely to defend, [ILLEGIBLE] or otherwise protect against any such suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right to defend, contest or otherwise protect against the same and may make any compromise or settlement thereof, the Other Party shall be bound by the actions taken by the Indemnified Party and the Indemnified Party shall be entitled to recover the entire Loss resulting [ILLEGIBLE] from the Other Party, including reasonable legal fees and expenses, disbursements and all [ILLEGIBLE] paid as a result of such suit, action, investigation, claim or proceeding or compromise or settlement thereof. No claim or proceeding may be paid, settled or otherwise compromised by the Other Party without the consent of the Indemnified Party (which consent may be withheld in the sole discretion of the Indemnified Party) if such payment, settlement or other disposition requires payment or other participation from the Indemnified Party, involves an admission of wrongdoing by the Indemnified Party, or purports to limit the activities of, or otherwise restricts in any way, any Indemnified Party.

6.           Miscellaneous.

6.1           The parties have agreed that the validity, construction, operation and effect of any and all of the terms and provisions of this Agreement shall be determined and enforced in accordance with the laws of the State of New York (without regard to the principles of conflict laws that would result in the application of the laws of any other jurisdiction). Any legal action or proceeding with respect to this Agreement or any matter related thereto will be brought exclusively in the courts of the State of New York venued in New York County or of the United States for the Southern District of New York venued in New York County. By execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of [ILLEGIBLE] courts and irrevocably waives any objection which such party may now or hereafter have [ILLEGIBLE] such jurisdiction.

6.2           All notices, requests or other communications required or permitted hereunder shall be given in writing by hand delivery; overnight courier; registered mail; certified mail, return receipt requested, postage prepaid; and any copy of any such notice, request or other communication may be sent by facsimile to the party to receive the same at its respective address set forth below, or at such other address as may from time to time be designated by such party to the others in accordance with this Section 6.2:

All such notices and communication hereunder shall be deemed given when received, as [ILLEGIBLE] by the acknowledgment of receipt issued with respect thereto by the applicable postal authorities or the signed acknowledgment of receipt of the person to whom such notice or communication shall have been addressed. Nothing contained in this Section 6.2 shall be deemed to constitute consent to the manner and address for service of process in connection with any legal proceeding (including but not limited to litigation arising out of or in connection with this Agreement), which services shall be effected as required by applicable law.

6.3           This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede any previous or contemporaneous agreements, written or oral, [ILLEGIBLE] the parties with respect to such subject matter. This Agreement may be amended only by a written instrument executed by the parties.

 

6.4           The parties shall execute and deliver such other instruments and take such other actions as may be reasonably necessary to give effect to the transactions contemplated hereby.

6.5           The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Agreement.

6.6           This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which taken together shall constitute one and the same agreement.

6.7           In the event of any dispute or action regarding this Agreement, the non-prevailing party in such dispute or action shall pay on demand all reasonable costs and expenses of the prevailing party, including attorneys’ fees.

6.8           If any provision of this Agreement shall be declared void or unenforceable by any Judicial or administrative authority the validity of any other provision and of the entire Agreement shall not be affected thereby.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.