Agreement
EX-10.9 11 dex109.htm MARKETING AGREEMENT, DATED DECEMBER 29, 2009-HUNGAMA DIGITAL MEDIA ENTERTAINMENT Marketing Agreement, dated December 29, 2009-Hungama Digital Media Entertainment
Exhibit 10.9
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
Agreement
This Agreement is entered on this 31st day of March, 2009 (the “Effective Date”), by and between
Hungama Digital Media Entertainment Pvt. Ltd., a Company incorporated under the Companies Act 1956 and having its registered office at F-1, Laxmi Woollen Mills, Shakti Mills Lane, Off. Dr. E. Moses Road, Mahalaxmi, Mumbai – 400 011 (hereinafter referred to as “Hungama”) on the First Part
And
Vringo Inc., a Delaware corporation having its registered office at 85 5 th Avenue 6th Floor New York, NY 10003 (hereinafter referred to as the “Vringo”) on the Second Part.
WHEREAS Hungama is engaged in the business of digital entertainment and marketing of various value added services across the globe.
WHEREAS Vringo is the owner of and has the right in the video ringtone sharing service.
WHEREAS Hungama wishes to engage Vringo in business relationship whereby Hungama will offer a version of Vringo’s video ringtone sharing service to its customers in India on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Definitions
“Intellectual Property Rights” means, with respect to any data, device, or other asset of any kind, all copyright, patent, trade secret, moral, termination, authorship and other proprietary rights relating to any such data, device, object code, source code or other asset including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such data, device, object code, source code or other asset.
“Marks” means any and all trademarks, trade names, service marks or logos owned or licensed by either party.
“Promotional Materials” shall mean all marketing, advertising, and promotional materials in all media, created or developed by or on behalf of one of the parties relating to or associated with this Agreement.
The License – Vringo hereby assigns to the Licensee the rights to market the Vringo service in the Territoryin a manner to be mutually agreed upon by the parties from time to time.
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| I. | Vringo’s Obligations: Vringo shall |
| a. | make available to Hungama’s customers a version or versions of the Vringo video ringtone sharing service (the “Service”). The Service shall be hosted and fully provided by Vringo. Vringo will integrate with Hungama’s billing system to bill users. |
| II. | Hungama’s Obligations: Hungama shall: |
| a. | Provide video ringtone content for the service (the “Content”) |
| b. | Provide Vringo with access to Hungama’s billing API and support Vringo in integrating the said API |
| c. | Market the Vringo Service to its customers in India. The marketing shall include the activities listed in Exhibit A and other activities to be agreed upon by the parties from time to time. |
| III. | Timing: The parties shall use commercially reasonable efforts to stick to the project and initial launch plan detailed in Exhibit B. |
| IV. | Revenue Share, Fees, Reports, Audit Rights: |
| a. | Users shall be charged for purchasing Content by Hungama. The customers will be billed for such purchases on their carrier/mobile bill. Alternatively, the parties may agree on a subscription model for the Service. Hungama shall pay Vringo *** of the net revenue received from the carriers for said purchases and/or subscription. Net Revenue = Gross Revenue less taxes. |
| b. | Download Data will be made available to Vringo within 10 working days of such data being received by the Licensee, but no later than 3 months from the start of each month. Hungama shall provide a complete account of all downloads of the Content on a quarterly basis and settle the accounts on a quarterly basis; Hungama shall pay to Vringo within 30 days of the payments received by Hungama from the Operators. |
| c. | Once every six (6) months during the Term of this Agreement, and for six (6) months following the term, Vringo may cause an independent auditor reasonably satisfactory to Hungama to inspect Hungama’s relevant books and records at Hungama’s offices to verify the accuracy of Hungama’s calculation of gross revenue; provided that reasonable advance notice of 15 days is given, the inspection does not unreasonably interfere with Hungama’s business activities and provided that the auditor signs Hungama’s standard confidentiality agreement before conducting the audit. Hungama shall promptly make any underpayments revealed by said audit. Such audit shall be at Vringo’s expense; however, if the audit reveals underpayments in excess of five percent (5%) of the fees owed for the period covered by the applicable audit, Hungama shall pay the reasonable cost of such audit. |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| d. | Except as otherwise specifically provided in this Agreement, each party shall be responsible for all costs and expenses relating to the performance of its obligations hereunder. |
| V. | Proprietary Rights, Grant of License |
| a. | Ownership of Intellectual Property. As between the parties, each party shall own and retain all right, title and interest, including without limitation, all Intellectual Property Rights owned by such party, in and to such party’s intellectual property, content, Marks and Promotional Materials. Neither party shall make any claim to the contrary. Each party agrees to reasonably assist the other party in the prosecution of any copyright infringement action or other litigation pertaining to the rights to the other party’s materials or intellectual property. |
| b. | Proprietary Notices. The parties shall not remove, obscure or alter the other party’s copyright notice or the Marks from approved materials provided to each party. |
| c. | Marks. Each party hereby grants the other party during the Term a non-exclusive non-transferable license to use said party’s Marks for the sole purpose of fulfilling its obligations under this Agreement and in marketing materials and presentations. In using each other’s Marks hereunder, each party acknowledges and agrees that: (i) the other party’s Marks shall remain the sole property of the other party; (ii) nothing in this Agreement shall confer in either party any right of ownership in the other party’s Marks; and (iii) neither party shall at any time contest the validity of the other party’s Marks. Except as specifically provided in this Agreement, neither party shall have the right to use any Mark of the other party, or to refer to the other party directly or indirectly, in connection with any product, promotion or publication without the prior written approval of such other party. Each party hereto agrees that upon termination of this Agreement all rights granted to the other party in relation to the other party’s Marks shall immediately terminate and revert to the respective owning or licensor party. |
| VI. | Term: |
| a. | Term. This Agreement shall become effective upon execution hereof by both parties (“Effective Date”) and, subject to termination as provided below, shall continue for twelve (12) months from the Launch Date (the “Initial Term”). |
| b. | Renewal. This Agreement shall automatically renew for successive twelve month terms, unless either party provides written notice of termination at least thirty (30) days prior to the expiration of the Initial Term or any renewal term. The Initial Term and any and all renewal terms are collectively referred to as the “Term.” |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| c. | Termination for Convenience. Either party may terminate this Agreement for any reason upon 60 days written notice to the other party. |
| d. | Termination for Insolvency. Either party hereto may, at its option, upon five (5) days written notice, terminate this Agreement should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization, or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs. |
| e. | Termination for Default. In the event that either party commits a material breach of its obligations hereunder, the other party may, at its option, terminate this Agreement by written notice of termination specifying such material breach; provided, however, that if such default is subject to cure, then such notice shall be subject to a twenty (20) day cure period from the date thereof, and if the defaulting party cures such default prior to expiration of such period, termination shall not take place. |
| f. | Survival of Termination. The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any such expiration, termination or cancellation. |
| VII. | Representations and Warranties, Indemnity: |
| a. | Representations and Warranties. Each party represents and warrants to the other that it has the full power and authority to enter into this Agreement, to grant the rights granted herein and to perform its obligations hereunder. |
| b. | Indemnity. Each party shall indemnify, defend and hold harmless the other party and its parents, subsidiaries, affiliates and their directors, officers, employees, agents and subcontractors against all third-party claims or actions, and any liabilities, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees) related thereto, to the extent same arise out of any breach or alleged breach of such party’s representations or warranties contained in this Agreement or in the case of Vringo, any virus, worm, or other contaminating or destructive feature contained in the Service. |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| VIII. | Confidentiality: |
| a. | Confidentiality. Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to certain information and materials concerning the other party’s business, plans, customers, code and products that are confidential and of substantial value to such party (referred to in this Section as “Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties. The terms of this Agreement shall be deemed to be Confidential Information. Each party agrees to maintain all Confidential Information received from the other, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party. Each party further agrees to use the Confidential Information only for the purpose of performing this Agreement. No Confidential Information shall be deemed confidential unless so marked if given in writing, or, if given orally, identified as confidential orally prior to disclosure, or information which by its nature or the nature of the circumstances surrounding disclosure should reasonably be understood to be confidential. |
| b. | Exclusions. The parties’ obligations under the paragraph above shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; or (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party who is lawfully in possession of such Confidential Information without restriction. Whenever requested by a disclosing party, a receiving party shall immediately return to the disclosing party all manifestations of the Confidential Information or, at the disclosing party’s option, shall destroy all such Confidential Information as the disclosing party may designate (excluding this Agreement). The receiving party’s obligation of confidentiality shall survive this Agreement for a period of one (1) year from the date of its termination and thereafter shall terminate and be of no further force or effect. Nothing herein shall prohibit a party from complying with a lawful and binding order of any court, administrative agency or other governmental entity relating to Confidential Information. |
| IX. | Press Release: Each party shall have the right to issue a press release regarding the relationship between the parties. |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| X. | Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. FURTHER, NEITHER PARTY’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT (EXCEPT FOR AMOUNTS PAYABLE HEREUNDER) SHALL EXCEED THE TOTAL AMOUNTS PAYABLE TO VRINGO UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS SECTION 9 SHALL NOT APPLY TO ANY AMOUNTS PAYABLE BY AN INDEMNIFYING PARTY PURSUANT TO EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT. |
| XI. | General Provisions: |
| a. | Definitions. The definitions contained in Exhibit A to this Agreement, which is incorporated herein and made a part hereof, shall apply to the interpretation of this Agreement. |
| b. | Force Majeure. Neither party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided, however, that either party may terminate this Agreement upon written notice to the other party in the event such failure to perform continues unremedied for a period of thirty (30) days. |
| c. | Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. |
| d. | Notice. Any notice or other communication to be given under this Agreement shall be in writing and signed by or on behalf of the party giving it and may be served by leaving it or sending it by fax, delivering it by hand or sending it by first class post |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
| e. | No Waiver. The failure of either party to require or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance. |
| f. | Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the subject matter hereof. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the duly authorized representatives of both parties. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. |
| g. | Assignment. Neither party shall assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent to a parent or commonly controlled entity or to any person or entity, which acquires or succeeds to all or substantially all of such party’s business assets. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. |
| h. | Partial Invalidity. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. |
| i. | Applicable Law. All disputes arising under this Agreement shall be finally settled under the rules of conciliation and arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. Arbitration if any shall take place in London, Great Britain and shall be held in the English Language |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
In Witness Whereof, the parties hereto have executed this Agreement as of the day and year first above written.
| Hungama Digital Media Entertainment Pvt. Ltd., | Vringo Inc. | |||||||
| By: | /s/ Rohan Deshpande | By: | /s/ Steven Glanz | |||||
| Name: Rohan Deshpande | Name: Steven Glanz | |||||||
| Title: Associate Director - Technology | Title: SVP, Business Development | |||||||
| Date: 13-May-2009 | Date: May 19, 2009 | |||||||
Exhibit A
Hungama Marketing Initiatives
| • | Integration on carrier portals |
| • | Integration on Hungama off deck site |
| • | SMS marketing campaigns |
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CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH “***”
Exhibit B
Project and Initial Launch Plan
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