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EXHIBIT 10.5
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered into on this third
(3rd) day of August, 2000 ("Effective Date") by and between International
eCommerce, Inc. ("IeC"), a Texas corporation, with principal offices at 1330
Post Oak Boulevard, Suite #1900, Houston, Texas, and MAX Internet
Communications, Inc., a Nevada corporation ("MAX"), with principal offices at
8115 Preston Road, Eighth Floor East, Dallas, Texas 75225.
BACKGROUND
MAX is in the business of developing, licensing and selling its
proprietary Internet communications technology, including the technology to
produce a television-based Internet set-top-box appliance providing video
teleconferencing, streaming audio and video, and with optional features to
include DVD and CD recording. IeC is in the business of selling consumer
electronic products such as the products produced by MAX.
In consideration of the mutual covenants contained herein, the parties
agree to the following terms and conditions, which set forth the rights, duties,
and obligations of the parties.
1. DEVELOPMENT OF THE PRODUCT
1.1 Joint Development. IeC and MAX shall each devote resources and
personnel required to develop a set-top-box product based upon
the current prototype manufactured by MAX as its "Video
Communication System (VCS)" that employs MAX's I.C. Live
technology for video streaming and related applications on an
integrated motherboard. The development shall proceed toward
creating a consumer electronic set-top device ready for resale
to wholesalers under the tentative name "NetForAll Plus" (the
"Product"). Product development efforts shall occur at MAX's
facilities in Dallas, Texas, although the parties may elect
jointly to lease space needed for development and testing of
the Product.
1.2 Specifications. The specifications for the Product are set
forth on attached Exhibit A. Such specifications shall be
incorporated into the Product. In addition, Exhibit A sets
forth the development milestones required in order to
re-engineer the Product to enable its production for the cost
set forth in Section 1.3.
1.3 Pricing. The end goal of the development efforts hereunder
shall be to create the Product's motherboard using MAX's
licensed technology and other licensed software, and to be
capable of manufacturing the Product for a cost not to exceed
$500.00 each.
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1.4 Management. Management of the development of the Product shall
be jointly controlled by IeC and MAX, and they shall seek to
reach concensus on all important decisions pertaining to the
development and implementation of the Product. In case of any
dispute between the Parties regarding management of
development, the parties agree that MAX shall cast the
decisive vote on the outcome of such dispute.
1.5 Funding. IeC agrees to fund all costs incurred by it in
performing its duties hereunder. MAX agrees to fund all costs
incurred by it in performing its duties hereunder, provided
that the first $2,000,000 of costs incurred by MAX to develop
the Product in accordance with the plans and milestones set
forth on Exhibit A shall be financed by IeC upon presentation
by MAX of monthly invoices. Such financing shall take the form
of purchases of MAX's restricted common stock at a price equal
to 125% of the average closing bid price of the stock on
Nasdaq for the last five trading days of each month during
which development efforts occur resulting in an invoice. Upon
the occurrence of each payment by IeC to MAX for the
development costs of the Product, MAX agrees to commence
preparations of and to file within 45 days after the second
month and last month of development a registration statement
with the Securities and Exchange Commission covering the
resale by IeC of the common stock securities.
1.6 Ownership. Upon completion of development of the Product, MAX
shall own all rights in and to the Product and shall have the
right to seek patent protection and other intellectual
property rights in and to the Product. IeC shall have the
rights in and to the Product that are defined in this
Agreement, but shall have no interest or residual rights to
the Product not specifically set forth herein.
2. LICENSE
2.1 Appointment. MAX hereby appoints IeC as the exclusive
distributor for the Product in the Territory, to resell the
Product to customers located within the Territory who are
providing the products for resale to merchants, wholesalers,
and retailers within the Territory, and directly to commercial
and noncommercial final users. The Territory shall consist of
all countries situated on the South American Continent, in
Central America, in the Caribbean Sea, and Mexico.
IeC's license shall also extend to the right to distribute other MAX
products employing MAX's video streaming technology and other applications as
they may apply to television Internet and interactive television appliances in
the Territory. Such license also shall extend to Product upgrades,
modifications, derivatives, and extensions. Such exclusivity appointed in this
section shall be subject to the provisions of Section 4.3.
2.2 Assignment. The license hereby granted to IeC is not
assignable, whether directly or indirectly by the transfer of
more than 25% of the voting stock of IeC, without the
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written consent of MAX. Such consent will not be unreasonably
withheld if MAX obtains reasonable assurance that the proposed
assignee is committed to and capable of performing the
obligations of IeC set forth herein.
2.3 Restrictions and Requirements.
2.3.1 Source Code Restrictions. IeC agrees not to
decompile, reverse engineer, disassemble, or
otherwise determine or attempt to derive source code
for the MAX proprietary technology or to create any
Derivative Works based upon the MAX proprietary
technology and agrees not to permit or authorize
anyone else to do so, except as expressly permitted
by MAX.
2.3.2 Third Party Terms. IeC understands that some of the
technology on which the Product is based has been
licensed from third party licensors. As such, IeC
agrees to comply with all terms and conditions listed
in Exhibit B that relate to the use of third party
licensors' technology or trademarks, and obtain the
necessary licenses required as set forth in Exhibit
B. MAX shall have the right to update Exhibit B from
time to time as reasonably necessary.
2.3.3 Distribution to Government Agencies. IeC agrees to
comply with and shall require its resellers to comply
with all applicable laws, rules and regulations to
preclude the acquisition of unlimited rights to
technical data, software and documentation provided
with the Product to a governmental agency, and ensure
the inclusion of the appropriate "Restricted Right"
or "Limited Rights" notices required by U.S.
Government agencies.
3. MANUFACTURING
3.1 Production by MAX. MAX shall have the first right and option
to manufacture and produce all copies of the motherboard for
the Product required by IeC for sale pursuant to the license
at a price equal to or less than 110% of the best price
offered by a third party producer. MAX shall exercise its
right of first refusal option within five (5) business days or
shall forfeit such right to manufacture.
3.2 Royalties. In the event MAX shall decline or forfeit its right
to manufacture the motherboard set forth in Section 3.1, and
IeC shall procure the Product from another source, IeC shall
pay to MAX per unit royalties. Such royalties shall be payable
in three installments of one-third of the royalty fee each,
with the first installment paid at the time of sale, the
second installment thirty (30) days after the date of sale,
and the third installment sixty (60) days after the date of
sale. The royalty rate shall depend upon the amount of sales
of the Product during each year of the term of this Agreement
(August 1 through July 31), and shall decline during such year
as the following sales rates are achieved:
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<TABLE>
<CAPTION>
Number of Product Royalty
Units per Year Rate per Unit
----------------- -------------
<S> <C>
1 - 99,999 $25.00
100,000 - 249,999 $22.50
250,000 - 499,999 $20.00
500,000 or more $17.50
</TABLE>
4. PURCHASE OBLIGATION
4.1 Initial Obligation. IeC irrevocably commits to selling a
minimum of 100,000 units of Product during the first twelve
(12) months after delivery of the first commercially
operational NetForAll Plus Product produced and developed
pursuant to this Agreement.
4.2 Subsequent Purchases. IeC agrees to purchase during the same
twelve (12) month period described in Section 4.1 for an
additional 400,000 units of Product and each additional
contract year to maintain its exclusivity license appointment
pursuant to Section 2.1.
4.3 Consequence of Failure to Obtain Commitments. If IeC shall
fail to obtain the commitments described in Section 4.3, the
consequence of such failure shall be that IeC shall forfeit
its exclusive right to distribute any Products in the
Territory; provided however, IeC shall have the right to meet
its Commitment in Sections 4.1 and 4.3 by reserving the
remaining licenses to meet such Commitments at 25% of the
royalty rate. The remaining royalty right will be paid at the
time of the actual sale of the license.
5. PURCHASE ORDERS
5.1 IeC shall purchase the Products from MAX by means of Purchase
Orders in the form set forth on Exhibit C.
5.2 Under the terms of a Purchase Order, MAX will ship all orders
of the Product to IeC's distribution center, as set forth on
each individual purchase order, in compliance with the
following delivery schedule:
<TABLE>
<CAPTION>
Units Ordered Days to Delivery
------------- ----------------
<S> <C>
Up to 300 21
More than 300 30
</TABLE>
5.3 All shipments shall be D.D.P., unloaded upon delivery,
distribution center. Risk of loss shall pass to IeC at the
time Products are received at the distribution center. IeC
shall certify the time that Products are received at the
distribution center in
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commercially viable condition. Terms of payment shall be net
amount due thirty (30) days after received at the distribution
center. The parties' other burdens and obligations with
respect to delivery are governed by the Vienna Convention of
1980 (CISG), except for those for which the parties expressly
contract, notwithstanding the signatory status of the country
constituting the Territory.
5.4 To effect payment of invoices, IeC shall deliver to MAX an
international letter of credit or a check in the amount of
each invoice, in a form to comply with the International
Chamber of Commerce Uniform Custom and Practices for
Documentary Credits. Such letter of credit shall enable MAX to
draw thereon on or after thirty (30) days from the date of
shipment received at the distribution center.
5.5 Each Purchase Order shall clearly state the appropriate DVD
Code Number for the country for which copies of the Product
are intended. It is understood that the inclusion of a DVD
Code Number shall not operate to widen the scope of the
Territory.
5.6 All payments to MAX shall be payable in Dallas, Texas in
United States Dollars, and IeC and its customers shall bear
all risk of currency fluctuations. MAX will bear the risk of
inflation changes.
5.7 MAX shall reasonably inform IeC of the delivery status of any
units ordered.
6. DUTIES OF IeC
6.1 IeC shall, at its expense, exercise commercially reasonable
efforts to optimize the sales potential of the Products in the
Territory, including that IeC shall support, honor and perform
all commercially reasonable sales programs sponsored by MAX to
the extent they are appropriate in the Territory.
6.2 IeC shall train its sales and service personnel to be
sufficiently knowledgeable about the Product to provide its
use in the Territory.
6.3 IeC shall furnish MAX with monthly sales reports and
projections of monthly sales for the ensuing three months,
together with a long range forecast of sales for the following
nine months once a quarter.
6.4 IeC shall, at its expense, provide for the establishment of
its sales hierarchy in the Territory, and shall design and
translate in the dominant language of each country in the
Territory, the packaging materials and instructions for the
Product.
6.5 IeC shall not be restricted from distributing non-competing
products within the Territory manufactured by competing
companies.
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6.6 IeC shall provide technical support and maintenance plans to
retail users of the Product.
7. DUTIES OF MAX
7.1 MAX shall manufacture the Product in a good and workmanlike
manner in sufficient quantities to meet the delivery
requirements and schedule set forth in this Agreement.
7.2 MAX shall honor all warranty claims in accordance with the
warranty policy attached hereto as Exhibit D. EXCEPT FOR THE
WARRANTIES CONTAINED IN THE COMPANY'S WARRANTY POLICY, MAX
HEREBY DISCLAIMS ALL OTHER EXPRESS, STATUTORY AND IMPLIED
WARRANTIES APPLICABLE TO THE PRODUCTS AND OTHER ITEMS,
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES
APPLICABLE TO THE PRODUCTS AND OTHER ITEMS, INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
8. REPRESENTATIONS
Each party represents and warrants to the other as follows:
8.1 It has the corporate power and authority to enter into and
perform this Agreement.
8.2 This Agreement has been authorized and approved by all
necessary corporate actions.
8.3 This Agreement does not conflict with any other agreement or
instrument which either party or its property may be subject.
8.4 No government approval is required for the execution or
performance of this Agreement.
9. CONFIDENTIALITY
9.1 As used herein, the term "Confidential Information" means and
includes any and all of the following: All information or
materials furnished by one party to the other pursuant to this
Agreement, including technical data, customer lists,
manufacturing processes, analysis, compilations, studies, or
other documents or records prepared by either party or on
behalf, either party which contains or otherwise reflects or
are generated from such materials. The term Confidential
Information shall not include information which is (a) already
known by a recipient without an obligation of confidentiality
other than this Agreement, (b) publicly known or becomes known
through no unauthorized act of the receiving party, (c)
rightfully received by a receiving party from a third person
who is not subject to a confidentiality or fiduciary
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obligation with respect to such information, (d) is required
to be disclosed pursuant to a court order, a rule or a
regulation of a governmental agency, or (e) is independently
developed by a party.
9.2 IeC agrees that, during the term of this Agreement, and for a
period of five (5) years thereafter, without the prior written
consent of MAX, IeC will not, directly or indirectly, for its
own benefit or for the benefit of another, disclose or reveal
to any other person, firm, venture, corporation or other
business entity, any of the Confidential Information delivered
to it by MAX. IeC agrees to use all such information solely
for the purpose of performing its obligations under this
Agreement and to take all actions reasonably necessary or
appropriate to ensure that none of the employees, officers,
directors, partners, owners, agents or affiliates of IeC,
discloses or reveals Confidential Information delivered to it
by MAX in any manner whatsoever except on behalf of IeC and at
its discretion and under its control in the course of its
performance of its obligations under this Agreement and solely
in strict compliance with each of the limitations and other
provisions hereof. IeC will disclose Confidential Information
delivered to it by MAX only to those employees, agents or
affiliates who need to know such information in order to
enable IeC to comply with its obligations under this
Agreement.
9.3 MAX agrees that, during the term of this Agreement, and for a
period of five (5) years thereafter, without the prior written
consent of IeC, MAX will not, directly or indirectly, for its
own benefit or for the benefit of another, disclose or reveal
to any other person, firm, venture, corporation or other
business entity, any of the Confidential Information delivered
to it by IeC, including any information related to IeC's
clients and outlets. MAX agrees to use all such information
solely for the purposes of performing its obligations under
this Agreement and to take all actions reasonably necessary or
appropriate to ensure that none of the employees, officers,
directors, partners, owners, agents or affiliates of MAX
discloses or reveals Confidential Information delivered to it
by IeC in any manner whatsoever except on behalf of MAX and at
its discretion and under its control in the course of its
performance of its obligations under this Agreement and solely
in strict compliance with each of the limitations and other
provisions hereof. MAX will disclose Confidential Information
delivered to it by IeC only to those employees, agents or
affiliates who need to know such information in order to
enable MAX to comply with its obligations under this
Agreement.
9.4 Upon the earlier of (1) the written request of MAX or IeC, as
applicable, or (2) the expiration of the term of this
Agreement, a receiving party shall return all copies of such
Confidential Information delivered to it by the other party,
and all derivatives thereof, to the other party or, if
directed by the other party, shall cause to be destroyed all
copies of such Confidential Information and such derivatives,
and certify in writing to the other party that such
Confidential Information and derivatives have been destroyed.
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10. INTELLECTUAL PROPERTY RIGHTS
IeC acknowledges that MAX has valuable and exclusive rights to patents,
trademarks, trade names and copyrights relative to MAX's products. The parties
agree that IeC may propose one or more trade names for the Product for use in
the Territory. Such name shall be subject to MAX's approval and shall become the
intellectual property of NotForAll Plus if used. IeC shall have the same right
to use the additional names as it does the NotForAll Plus or successor
trademarks and trade names as set forth herein.
11. FORCE MAJEURE
In no event shall the parties be liable to each other for failure or
delay in the performance of any obligations contained in this Agreement or in
any purchase order accepted hereunder by MAX arising, directly or indirectly,
from acts of God, unforeseeable circumstances, acts (including delay or failure
to act) of any governmental authority (de jure or de facto), war (declared or
undeclared), riot, revolution, priorities, fires, floods, weather, strikes,
labor disputes, sabotage, epidemics, factory shutdowns or alternations,
embargoes, delays or shortages in transportation, delay or inability to obtain
or procure labor, manufacturing facilities or materials, or causes of any other
kind beyond the reasonable control of the hindered party.
12. INDEPENDENT CONTRACTOR
12.1 IeC is an independent contractor and is not the legal
representative or agent of MAX for any purpose.
12.2 MAX is an independent contractor and is not the legal
representative or agent of IeC for any purpose.
12.3 The Products sold by MAX pursuant to this Agreement shall be
purchased by IeC for its own account, payment to be made
within thirty (30) days, and the prices at which such Products
are resold by IeC shall be determined solely by IeC.
12.4 IeC has no Del Credere obligations to MAX.
13. SALES AND SIMILAR TAXES
The prices specified in each purchase order accepted by MAX hereunder
do not include any federal, state or local property, license, privilege,
business, occupation, stamp, documentary, transfer, sales, use, excise, gross
receipts, value added or other similar taxes which may or hereafter be
applicable to, measured by, or imposed upon:
a. The sale or transfer of the Products;
b. The value or use of the Products; or
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c. The performance of any services in this Agreement,
except as is required for IeC to fulfill its delivery
obligations, except as may be required pursuant to
MAX's shipping and delivery obligations under Vienna
Convention of 1980 (CISG).
14. DURATION AND TERMINATION
14.1 Unless earlier terminated in accordance with the
terms of this Agreement, this Agreement shall
commence as of the date of this Agreement and shall
remain in effect for a period ending July 31, 2003.
Such term shall be extended for each month that
development of the Product is not completed beyond
six months from the date hereof. This Agreement may
be renewed at the beginning of each year during the
term of this Agreement for an additional two (2)
years upon the written agreement of both parties
during the first month of the year. If either party
fails to agree in writing to such renewal, this
Agreement shall not be renewed and shall continue
only for the balance of the remaining term. For
purposes of this paragraph, a "year" shall be deemed
a twelve-month period ending July 31.
14.2 In addition to all other remedies provided by law, or
specified in the Agreement, MAX may, at its option,
terminate this Agreement, and any outstanding and
unperformed purchase orders previously accepted by
MAX hereunder, by mailing written notice of such
termination to IeC, upon the occurrence of any of the
following events:
(1) The insolvency of IeC;
(2) The filing of a voluntary or involuntary
petition in bankruptcy by, against or on
behalf of IeC;
(3) The appointment of a receiver or trustee for
all or substantially all of the property of
IeC;
(4) If IeC otherwise commits an act of
bankruptcy, or any bankruptcy
reorganization, debt arrangement or other
proceeding under any bankruptcy or
insolvency law, or any dissolution or
liquidation proceeding is instituted by,
against, or on behalf of IeC;
(5) The breach or failure of IeC to perform any
of the terms, conditions or covenants
contained in this Agreement; or
(6) The acquisition or control of IeC, directly
or indirectly, by a direct competitor of MAX
without the consent of MAX, which consent
shall not be unreasonably withheld.
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14.3 Upon expiration of this Agreement, or upon its
termination for any reason whatsoever, IeC shall
immediately cease using MAX's intellectual property.
MAX shall continue to honor and provide warranty
information to IeC.
14.4 MAX shall repurchase IeC's inventory of Products upon
expiration of this Agreement or upon its termination
for any reason, whatsoever, at prices which are the
same as those for which the inventory was originally
purchased by IeC, shipped by IeC E.X.W., no
assistance in loading. The foregoing price for the
returned inventory shall be paid by MAX to IeC by
means of an irrevocable sight letter of credit drawn
on a U.S. money center bank the date MAX receives the
inventory.
14.5 It is further agreed that MAX and IeC shall,
following the expiration of any termination of the
Agreement, continue to perform all purchase orders
accepted by MAX prior to the date of such
termination.
14.6 IeC will be allowed to complete any outstanding
purchase order commitments it may have outstanding at
the time of termination.
15. INSPECTION OF RECORDS, PRODUCTS AND OTHER ITEMS
During the term of this Agreement, IeC shall maintain a log
memorializing purchases and sales of Products (the "Log") at its principal
office. MAX, its employees and authorized representatives, shall be entitled
during business hours to inspect and copy all of IeC's Business Records and to
inspect Products wherever located.
16. AMENDMENTS
This Agreement sets forth the entire Agreement between the parties. All
previous oral and written agreements between the parties are hereby
terminated and neither party shall have any continuing obligation of any
kind thereunder. This Agreement may be changed, altered, or amended only by
an Agreement in writing signed by both parties. MAX shall have the right to
assign this Agreement without limitation. Subject to the foregoing
provisions, this Agreement shall be binding upon and inure to the benefit of
the successors, assigns and legal representatives of the parties hereto.
17. NOTICES
Except as otherwise provided in this Agreement, all writings, notices,
payments and reports required hereunder shall be sent by certified or
registered mail to the parties at their address specified in the preamble.
18. MISCELLANEOUS
18.1 Expenses. Each party to this Agreement shall bear its own
legal and accounting expenses in connection with the
transactions provided for herein. Each of the parties hereto
agrees to hold the other harmless from and against any
liability for broker's or finder's fees in connection with the
purchase and sale provided for herein arising
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out of the contracts, express or implied, which may be
asserted against the noncontracting parties.
18.2 Waivers. The failure of any party to act to enforce rights
hereunder shall not be deemed a waiver and shall not preclude
enforcement of any rights hereunder. No waiver of any term or
provision of this Agreement on the part of a party shall be
effective for any purpose whatsoever unless such waiver is in
writing and signed by such party.
18.3 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
INTERPRETED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAWS.
18.4 Venue. THE PARTIES AGREE THAT ANY DISPUTE REGARDING THIS
AGREEMENT SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF
THE TEXAS STATE COURTS IN AND FOR DALLAS COUNTY, TEXAS, UNITED
STATES OF AMERICA, AND THE PARTIES AGREE TO SUBMIT TO THE
PERSONAL AND EXCLUSIVE JURISDICTION AND VENUE OF THESE COURTS.
18.5 No Benefit to Others. The representations, warranties,
covenants, and agreements contained in this Agreement are for
the sole benefit of the parties hereto and their respective
successors, permitted assigns, heirs, executors,
administrators, and legal representatives, and shall not be
construed as conferring and are not intended to confer any
rights on any other persons.
18.6 Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or
future laws effective during the term hereof, such provision
shall be fully severable. This Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu
of such illegal, invalid or unenforceable provision, there
shall be added automatically as a party of this Agreement a
provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable.
18.7 Indemnity. MAX will indemnify and hold harmless IeC for any
and all claims relating to breach of MAX's warranty and strict
liability or breach of warranty related to products liability
law of any jurisdiction in which the goods may land in the
stream of commerce.
18.8 Limitation of Liability. IN NO EVENT SHALL MAX OR IEC BE
LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE
OR DATA,
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INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF THEY HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY), OR FOR ANY CLAIM AGAINST THEM BY ANY THIRD
PARTY. IN NO EVENT WILL MAX OR ITS SUPPLIERS BE LIABLE FOR (A)
ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY IEC,
ANY AGENT OF IEC TO PERFORM AS SPECIFIED HEREIN EXCEPT AS, AND
TO THE EXTENT, OTHERWISE EXPRESSLY PROVIDED HEREIN; OR (C) ANY
USE OF THE PRODUCT OR THE DOCUMENTATION OR THE RESULTS OR
INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF THE
PRODUCT. THE REMEDIES PROVIDED HEREIN ARE SOLE AND EXCLUSIVE
REMEDIES.
18.9 No Partnership. Nothing contained in this Agreement shall
constitute or be deemed to constitute a partnership between
the parties.
18.10 Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to affect the
construction or interpretation of this Agreement.
18.11 Construction. Any alleged uncertainty or ambiguity in this
Agreement shall not be construed for or against a part based
on attribution of drafting to such party.
18.12 General Conduct. IeC agrees (i) to conduct business in a
manner that reflects favorably at all times on the Product and
the good name, goodwill and reputation of MAX; (ii) to avoid
deception, misleading or unethical practices that are or might
be detrimental to MAX or the public, including, but not
limited to, disparagement of MAX or its products, and
acceptance or payment of bribes, kickbacks or secret profits;
(iii) to make no representations, warranties or guarantees to
End Users or to the trade with respect to the specifications,
features or capabilities of the Product other than those made
by MAX; and (iv) not to publish or use (or cooperate in the
publication or use of) any misleading or deceptive advertising
material.
18.13 Compliance with Laws; Approvals. IeC shall comply with all
applicable laws in performing its duties hereunder and in any
dealings with the Product, including, but not limited to, laws
relating to antitrust and fair business practices. MAX shall
advise IeC of any laws or other regulatory requirements in
force in the territories in which IeC sells the Product that
relate to the Product, including, but not limited to, laws
relating to labeling, health or safety and other issues
related to localization of the Product. IeC shall be
responsible for obtaining any governmental approvals or
registrations necessary for the effectiveness of this
Agreement and the arrangements contemplated herein, and shall
use its best efforts to obtain such approvals promptly.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have duly executed, or through their duly authorized officers, have duly
executed this Agreement, effective as of the date first above written.
MAX INTERNET COMMUNICATIONS, INC.
By: /s/ DONALD G. MCLELLAN
-------------------------------------
Donald G. McLellan, Vice President
INTERNATIONAL eCOMMERCE, INC.
By: /s/ FELIX MORENO
-------------------------------------
Felix Moreno, Chief Executive Officer
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EXHIBIT A
MAXCONFERENCE SPECIFICATIONS
o H.323 VIDEOPHONE (NETMEETING) OVER HIGH-SPEED IP CONNECTION, LAN OR WAN
-minimum utilization of system resources maximizes audio/video quality
-multiple audio channel capability makes possible concurrent multimedia
applications
-application sharing and collaborating of any Windows application
o o H.324 VIDEOPHONE OVER POTS (PLAIN OLD TELEPHONE SERVICE) ANALOG
PHONE LINES
o H.263/H.261 video compression
o G.723.1 speech compression at 6.3 or 5.3 kbps
o Acoustic echo cancellation
o Voice-first calling and receiving
o Remote and local video window viewing
o V.80 modem support for synchronous data over an asynchronous
interface
o V.8 multifunction modem operation mode determination
o Cypress Research Megaphone videophone application
o Video compression & decompression and audio synchronization
processed on board, freeing up Pentium(TM) and PCI bus
o Full range of baud rate and parity support on DTE interface with
memory to memory interface, by-passing serial interface
bottlenecks (UART replaced by high speed PCI bus memory-to-memory
transfer at more than double standard UART speed for a maximum
DATA throughput of 230 kb/sec)
SVGA GRAPHICS SPECIFICATIONS
THE MPACT-1 MEDIA PROCESSOR PROVIDES FULLY ACCELERATED VGA AND SVGA
COMPATIBILITY FOR BOTH DOS AND WINDOWS 95 APPLICATIONS. THE RESULT IS BLAZING
DISPLAY PERFORMANCE, WITH NEW SCREENS AND PICTURES BROUGHT UP ALMOST
INSTANTANEOUSLY, DELIVERING FLICKER-FREE PHOTOGRAPHIC-QUALITY IMAGES WITH
MILLIONS OF COLORS.
o 106M ZD Winmarks at 1024-by-768 Resolution, 8-bit color
o Performance in top tier of graphics cards (based on Ziff-Davis
Winmark '97)
o Full DOS and Windows(R) 95 GUI acceleration through Microsoft GDI
and DirectDraw(TM) APIs
o NTSC/PAL full graphics desktop output
o Programmable flicker filter/chroma filter
o Dual NTSC/PAL & VGA same-image display
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<PAGE> 15
o TV Tuner support
o NTSC field capture at up to 30 fields per second
o Video scaling and motion compensation
o VGA register level compatibility and Super VGA graphics modes
o Non-interlaced screen resolution:
o 1280 x 1024 x 16-bit color @ 60-85 Hz
o 1024 x 768 x 24-bit color @ 60-85 Hz
o 800 x 600 x 24-bit color @ 60-120 Hz
o 640 x 480 x 24-bit color @ 60-144 Hz
o Full Bit BLT acceleration engine including transparent BLTs,
device bitmaps, full 256 ternary ROPs and pattern buffering
o Full GUI acceleration of 2-point line draws, trapezoidal and
polygon fills
o Fully accelerated YUV conversion, scaling, filtering, clipping
and hardware cursor
o Full text acceleration engine
o Full hardware and BIOS support for VESA Display Power Management
Signaling (DPMS) monitor power savings modes
o Integration with Mpact industry standard sound card emulation for
legacy DOS multimedia titles
o Display CPL support with control panel for 2D refresh rate
MAXVIDEO SPECIFICATIONS
SUPPORTS INTERNATIONAL STANDARDS FOR MPEG-1 AND MPEG-2 VIDEO, AUDIO AND SYSTEM
DECODING, ALONG WITH MPEG-1 ENCODING FOR HOME VIDEO EDITING. MAX i.c.LIVE'S
HARDWARE ACCELERATION OF MPEG-1 VIDEO YIELDS LASERDISK-QUALITY VIEWING. RIDE THE
NEXT WAVE OF ADVANCED MULTIMEDIA WITH MAX i.c.LIVE'S HOME MOVIE EDITING: A
COMPLETE SOLUTION FOR CAPTURING AND DIGITALLY EDITING HIGH-QUALITY VIDEO FROM
CAMCORDERS AND VCRS, INCLUDING DIGITAL SPECIAL EFFECTS! SAVE A PROJECT AS AN
MPEG FILE ON DISK, OR PRINT TO VIDEOTAPE
o Full support for OpenMPEG command set and Microsoft Windows 95
ActiveMovie APIs
o Real-time Digital Versatile Disk (DVD) decode (fully-compliant
MPEG-2 video plus Dolby Digital AC-3 audio)
o Real-time MPEG-1 video Decode @ 30 fps, 18-bit color,
SIF 352 x 240 (fully-compliant ISO/IEC 11172-1, 11172-2, and
11172-3 layer 2)
15
<PAGE> 16
o System layer time stamp based video/audio synchronization
o Fully accelerated color space conversion, bilinear interpolation
and filtering, at full screen and full speed
o Full-screen or video in a window
o Crisp synchronization with MAX i.c. Live Windows 95 graphics
output
o Fully accelerated Video CD playback (White Book-compliant version
2.0) with track selection, skipping and sequencing
o Real-time MPEG-1 SIF 1 frame encoding @ 30 frames per second
o Non-real-time MPEG-1 IBP frames encoding
o Patented hardware motion estimation, image processing
o PAL/NTSC video input and output
VIDEO EDITING WITH REALTIME MPEG COMPRESSION
o Real-time audio/video capture from camcorder, VCR or TV Tuner
o AVI Editable MPEG multiplexing
o MPEG-1 I-frame encoding SIF (352x240) @ 30 frames per second
(full TV screen)
o MPEG-1 Audio Layer II with selectable bitrate and sample rate
o NTSC video input and output
o Asymetrix Digital Video Producer audio/video editing application
o Video and audio editing with special effects
o 2D and 3D title overlay
o Output to a variety of formats, including .mpg, NTSC or VCR tape
16
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DVD SPECIFICATIONS
MAX i.c.LIVE'S MPEG-2 VIDEO SUPPORT, COUPLED WITH ITS ABILITY TO DECODE DOLBY
DIGITAL AC-3(TM) LETS USERS EXPERIENCE EVEN HIGHER QUALITY MOVIES, EDUCATIONAL
TITLES AND MORE WITH THE NEW DVD (DIGITAL VERSATILE DISK) FORMAT.
HOME THEATER-QUALITY VIDEO
o Fully compliant MPEG-2 video playback, Main Profile at Main Level
o Full-screen (720 x 480) 30 frames per second @ maximum DVD bit
rate of 9.8 Mbits/sec
o VBR (variable bit rate) and CBR (constant bit rate)
o IEEE 1180-compliant Inverse Discrete Cosine Transform (IDCT) to
ensure crisp picture quality with minimal noise
o Exact motion compensation for artifact-free playback
o NTSC (525/60) TV video output
o Scalable video window
o 16:9 wide screen display
o 4:3 letterbox display
o Pan & Scan display
o Still-picture MPEG-2 I-frame display
o Component S-Video output
o Digital YUV video output via feature connector to external
graphics chips
o MPEG-1 playback
o Video CD 2.0 playback
HOME THEATER-QUALITY AUDIO
o AVsync technology: real-time synchronization between audio and
video
o Dolby Digital (AC-3) 6-channel decode
o SRS TruSurround 2-channel analog output with spatialization
effects
o Dolby ProLogic Surround Sound-encoded 2-channel analog output
o Digital audio output (S/PDIF)
o 64 kbps to 448 kbps data rate
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<PAGE> 18
o Audio CD playback
COMPLETE DVD FEATURE SUPPORT
o CSS (Content Scrambling System) license for playback of encrypted
content
o Complete, intuitive Entertainment Center player application from
Software Dynamics
o Up to 32 sub-picture streams for subtitles, menus, and animation
o MCI command support for DVD-ROM
o Full-screen, run-length-encoded bitmaps up to 4 contrast values
and 4 colors per pixel
o Multi-language support for video scenes, audio tracks, subtitle
tracks, and menus
o Multi-story, multi-rating support (automatic "seamless" branching
of video)
o Multi-camera-angle support
o Parental lock
o Fast forward, rewind, and search to title, chapter or track
o Frame by frame advance
o Still picture
o Macrovision analog copy protection support
o Regional lockout support
o Windows 95 OSR 2.1 support
o MicroUDF format support
WAVETABLE AUDIO SPECIFICATIONS
PROVIDING THE RICHEST SET OF AUDIO FEATURES AVAILABLE TODAY, THE MPACT-1 MEDIA
PROCESSOR SUPPORTS CURRENT STANDARDS AS WELL AS THE LATEST BREAKTHROUGHS IN PC
AUDIO, INCLUDING 3D ENHANCED AND 3D POSITIONAL SOUND. IN ADDITION, THE MPACT-1
MEDIA PROCESSOR BRINGS DOLBY DIGITAL AC-3 TO THE PC MARKET FOR THE FIRST TIME.
THE RESULT IS THE MOST ADVANCED AUDIO IN THE INDUSTRY AT ANY PRICE. REMEMBER
WHEN YOU TRADED IN YOUR TAPE DECK FOR A CD PLAYER? THAT IS THE KIND OF
TRANSFORMATION YOUR PC WILL UNDERGO WITH MPACT AUDIO WITH FEATURES SUCH AS SRS
3D AUDIO AND THE ADVANCED FORTE(TM) WAVETABLE SYNTHESIZER.
o High-quality DOS and Windows 95 audio through WAVE, MIDI, and
Microsoft DirectSound(TM)
o MPEG-1 (Layers 1 and 2) audio decode
o 3-D audio enhancement through SRS
18
<PAGE> 19
o MAX Forte(TM) Wavetable synthesizer
o 32 simultaneous voices
o General MIDI standard compatibility with 128 original
instruments and 60 drums, 7 additional Roland GS and
Yamaha XG drum kits, and 4 MB ILIO (Synclavier(R))
sample library
o complex envelopes and filters
o Powerful effects processor, with reverb
o Precise audio control through support for key layering,
velocity switching, variable keyboard scaling for
alternate tunings, sharpness of attack and speed of
decay
o Up to 8 simultaneous play and record channels with different
formats and frequencies re sampled up to 48 kHz, with 36-bit
internal precision
o Hardware dithered rounding of quantization noise
o Industry standard sound card compatibility (FM synthesis, General
MIDI)
o Mpact Audio Process Manager (XAPM) for minimizing synchronization
overhead between audio tasks
o Industry standard joystick with MIDI
o Industry standard MIDI port
o Midisoft Audio Rack application for audio playback, record and
mixing control
HOME THEATER-QUALITY AUDIO
o AVsync technology: real-time synchronization between audio and
video
o Dolby Digital (AC-3) 6-channel decode
o SRS TruSurround 2-channel analog output with spatialization
effects
o Dolby ProLogic Surround Sound-encoded 2-channel analog output
o Digital audio output (S/PDIF)
o 64 kbps to 448 kbps data rate
o Audio CD playback
TELEPHONY SPECIFICATIONS
MAX i.c.Live's DSVD MODEM/TELEPHONY RELIABLY PROVIDES FAST INDUSTRY-STANDARD
MODEM CONNECTIONS TO ONLINE SERVICES, FAX RESOURCES, AND THE INTERNET. IT ALSO
INCLUDES VOICEMAIL WITH MULTIPLE MAILBOXES, CALLER ID, DISTINCTIVE RING, AND
SPEAKERPHONE WITH ADAPTIVE ECHO CANCELLATION.
19
<PAGE> 20
o Full Windows 95 support for Microsoft Unimodem V, TAPI and VCOMM
APIs
o DSVD capability for simultaneous Data/Voice transmission
o Distinctive Ring support for automatic switching between
Voice/FAX/DAtA on a single phone line
o DOS box modem support
o Full duplex speakerphone
o Data modulation up to V.34 bis (33,600 bits per second)
o V.32 bis support (14400, 12000, 9600, 7200 bps)
o V.22 bis support (2400, 1200 bps), Bell 212A and Bell 103
o V.42 bis data compression and V.42/MNP 2-4 error correction
o V.80 compliance
o Fax modulation up to V.17 (14,400 bps) in answer and originate
modes, full fax Class 1 (TIA-578), 2, and 2.0 (TIA-592) command
set implementation
o Data automoding
o DTMF generation, dial tone and busy detection, ring detection and
auto answer
o V.14 async to sync conversion and RS-232 interface support
o Full range of baud rate and parity support on DTE interface with
memory to memory interface, bypassing serial interface
bottlenecks (UART replaced by high speed PCI bus memory-to-memory
transfer at more than double standard UART speed for a maximum
DATA throughput of 230KB/SEC)
THE MAX i.c.Live SOLUTION BRINGS THE POWER OF A CORPORATE PHONE AND VOICEMAIL
SYSTEM TO YOUR PC, PROVIDING SUCH FEATURES AS SPEAKERPHONE WITH ADAPTIVE ECHO
CANCELLATION, ANSWERING MACHINE, VOICE MAIL WITH MULTIPLE MAIL BOXES, CALLER ID
AND MORE.
o Full support for Windows 95 TAPI and VCOMM APIs, plus AT + V
(TIA-695) command set
o V.80 support for video conferencing.
o Adaptive full-duplex speakerphone with acoustic echo cancellation
o Answering machine/voicemail functionality
o Outgoing and incoming message support
o Concurrent DTMF detection
o Call progress detection
20
<PAGE> 21
o IMA ADPCM voice compression/decompression
o Caller ID support
o Distinctive Ring support for automatic switching between
Voice/Fax/Data on a single phone line.
21
<PAGE> 22
THIRD PARTY RESTRICTIONS AND REQUIREMENTS
MAX provides a logo program. This optional service includes Dolby Digital
AC-3(R) Certification, and Macrovision(R) pre-certification. A full description
of this service is in the "Mpact Logo Process" document, which is part of the
Production Pak product from MAX. If User does not utilize this service, USer
assumes all responsibility for certification from Dolby Laboratories and
Macrovision. MAX will notify such companies that software utilizing their
respective technologies has been provided to User.
The following third party restrictions and requirements apply to the Mpact
Mediaware. User shall have the right to update this Exhibit from time to time as
necessary. User agrees to comply with the restrictions and requirements set
forth below.
V.42 BIS
If User wishes to include V.42 BIS capability in the modem component of the
Mpact Mediaware, User must obtain the following licenses:
<TABLE>
<CAPTION>
LICENSOR COMMENTS
--------------------------------------------------------------------------------
<S> <C>
IBM User is required to sign an IBM license agreement and pay a
one-time $20,000 license fee to IBM. A copy of this agreement
will be provided by MAX upon User's request.
--------------------------------------------------------------------------------
</TABLE>
AUDIO
User must obtain the following licenses and abide by the following restrictions
when using these features:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
LICENSOR COMMENTS
--------------------------------------------------------------------------------
<S> <C>
SRS User must sign the attached SRS logo usage license.
--------------------------------------------------------------------------------
</TABLE>
DVD
If User is licensing the DVD module from MAX, User must obtain the following
licenses and abide by the following restrictions:
<TABLE>
<CAPTION>
LICENSOR COMMENTS
--------------------------------------------------------------------------------
<S> <C>
Region Control User may only ship region specific Mpact Mediaware into
the region(s) for which it was intended.
--------------------------------------------------------------------------------
MEI If User is manufacturing Mpact boards, User should enter into a
CSS license with MEI. If User is purchasing Mpact boards from
third parties, User should purchase boards from CSS licensees.
--------------------------------------------------------------------------------
</TABLE>
22
<PAGE> 23
<TABLE>
<CAPTION>
<S> <C>
--------------------------------------------------------------------------------
Dolby User may utilize the Mpact Logo program to obtain Dolby Digital
AC-3 Certification. For this program User submits
pre-production samples. Alternatively, User may submit Hardware
Product(s) directly to Dolby Labs for certification.
--------------------------------------------------------------------------------
SRS See above.
--------------------------------------------------------------------------------
Macrovision If the Hardware Product contains an analog output, User must
enter into a license Agreement with Macrovision. User may
utilize the Mpact Logo program to obtain Macrovision
pre-certification. For this program User submits pre-production
samples to MAX. Alternatively, User may submit Hardware Product
directly to Macrovision for certification.
--------------------------------------------------------------------------------
DVD User is responsible for obtaining licenses for all DVD
Patents related patents excluding SRS and Dolby that are applicable to
Mpact mediaware or the combination of Mpact mediaware with User
hardware. Such patents include, without limitation, Mpeg-2
patents. In addition, User is responsible for licensing all
patents related to Hardware Products and patents infringed when
Mpact Mediaware is combined with Hardware Products.
--------------------------------------------------------------------------------
</TABLE>
MAX can provide contact information or more detailed information upon request.
MAX will not ship Mpact Mediaware to User until User has secured the licenses
set forth above.
(THIS LOGO USAGE AGREEMENT IS APPLICABLE ONLY TO PARTIES PURCHASING AND
USING MAX'S MULTI-FUNCTION COMPUTER PROCESSING SOLUTION HAVING TRUSURROUND
TECHNOLOGY AND APPLIES ONLY TO PRODUCTS INCORPORATING SUCH SOLUTION)
TRADEMARK OWNER: SRS LABS INCORPORATED, 2909 DAIMLER STREET, SANTA ANA, CA 92705
(714-442-1070)
PURCHASER:
-------------------------------------- ------------------------
SIGNATURE
In order to use the trademarks of SRS Labs in connection with the sale of
audio products incorporating the MAX multi-function solution with
TRUSURROUND audio by SRS Labs, (collectively "MPACT TS"), the purchaser or
licensee of the MPACT TS identified above ("Purchaser") agrees to adhere to
the logo usage requirements of SRS Labs as described herein. As long as
such requirements are met, SRS Labs grants Purchaser a limited, personal,
non-transferable, non-exclusive, royalty-free license to use the trademark
configuration identified below to mark packaging, advertising and
collateral material for advertising, promoting, and distributing
Purchaser's products incorporating the MPACT TS solution.
11. I. LOGO FORMAT AND USAGE REQUIREMENTS
A. Purchaser agrees to use only the following trademark
configuration to identify SRS Labs' TRUSURROUND technology:
[TRUESURROUND(TM) WITH SRS(R) LOGO]
B. Whenever products of Purchaser are marked with the configuration
above, proper notice shall also be placed near the trademarks
stating the following:" ", and are
trademarks of SRS Labs, Inc."
23
<PAGE> 24
C. Purchaser agrees not to use any of SRS Labs' trademarks on any
audio products which (1) do not incorporate the MPACT TS
solution, or (2) which incorporate the MPACT TS solution that has
been modified in a way which affects its standard audio
processing. By using any of SRS Labs' trademarks, Purchaser
agrees to the logo usage requirements described herein and
acknowledges that its products containing SRS Labs' trademarks
will be subject to review and evaluation. In the event Purchaser
fails to comply with these requirements and improperly uses SRS
Labs' trademarks on its products, SRS Labs may immediately revoke
the right to use such trademarks on Purchaser's products.
D. Purchaser agrees that it will not file any application in any
country for registration of the trademarks shown in the
configuration above in Section I.A., or any mark, symbol, or
phrase, in any language, which is similar to or likely to be
confused with such trademarks or associated with SRS Labs.
II. LIMITATIONS OF LOGO USAGE
A. Neither this document nor the purchase of the MPACT TS solution
grants Purchaser the right to permanently affix the SRS Labs
trademarks DIRECTLY to the products of Purchaser, except for any
marking already existing as part of the MPACT TS. To obtain such
right, Purchaser is required to obtain a separate license
directly from SRS Labs and is encouraged to contact SRS Labs to
do so. (see http://www.srslabs.com).
B. The duration of this Agreement shall remain in effect for as long
as Purchaser is selling products incorporating the MPACT TS
solution, or until earlier terminated by SRS Labs for Purchaser
default.
C. This Logo Usage Agreement is not assignable or transferable by
Purchaser without the express written consent of SRS Labs. In the
event that any provision hereof is found invalid or unenforceable
pursuant to judicial decree or decision, the remainder of this
Agreement shall remain valid and enforceable. The terms of this
Agreement shall be construed and interpreted under the laws of
the state of California, U.S.A.
TRADEMARKS & TRADEMARK USAGE GUIDELINES
MAX Trademarks.
The following words and logos are trademarks of MAX, Inc. in the United
States and/or other countries:
"Mpact(TM)
24
<PAGE> 25
Logo Usage.
1. User may use the MAX logo (above on left) and the Mpact logo (above in
middle) in connection with Hardware Products subject to the provisions
of Section 2.5 and this Exhibit D.
2. Only Hardware Products that have been certified through MAX's Mpact
Logo program (as described in the MAX document "Mpact Logo Process")
may use the "Certified for Mpact" logo (above on right). Upon
qualifying a Hardware Product under MAX's Mpact Logo Process, User may
use the "Certified for Mpact" logo solely in connection with such
Hardware Product. Use of the "Certified for Mpact" logo under any
other circumstances is expressly prohibited.
3. MAX will provide artwork to User for the MAX logos, and User shall use
such artwork without modification, including using the same form,
size, typeface, and color. User's product logo must be larger than the
MAX logos and must be displayed in a manner clearly indicating that
the Product is a User product and not a MAX product. User's product
packaging and literature must clearly specify the version of Mpact
Mediaware for which the Hardware Product has been certified.
Third Party Licensor Trademarks [MPACT! LOGOS]
No license is granted by MAX to User to use the trademarks, service marks,
tradenames, or logos of any Third Party Licensor. User may obtain such
licenses directly from such third parties as set forth in Exhibit C.
Trademark Usage Guidelines
1. User must submit a reasonable number of Products, including all
packaging and documentation to MAX to allow MAX to determine whether
Products comply with MAX's Trademark Usage Guidelines and the
Replication Guidelines set forth in Exhibit I. If necessary, MAX shall
have the right to provide such Products to its Third Party Licensors
to allow such Third Party Licensors to determine whether such samples
comply with such Third Party Licensor's trademark usage guidelines.
All samples shall be submitted to MAX at least thirty (30) days in
advance of distribution to User's Users. MAX may require User to
submit new samples in the event MAX reasonably believes the product
design or quality has materially changed. Materials should include:
artwork for the packaging of all Products showing the location and use
of the MAX logos and Trademarks, and draft copies of documentation
using Trademarks, including proper trademark acknowledgments.
25
<PAGE> 26
2. User shall submit copies of all marketing materials that use a MAX
Trademark to MAX for prior written approval. Such materials shall be
submitted sufficiently far enough in advance of the publication date
to ensure that errors can be corrected prior to publication.
3. All representations by User of MAX's Trademarks shall be exact
replicas of those used by MAX or shall be used in accordance with
these Trademark usage guidelines.
4. User shall make such changes as MAX shall reasonably request to
protect the value of MAX Trademarks used by User or User shall not use
such Trademarks.
5. The following rules apply to the use of MAX Trademarks in written
materials:
a) The "Mpact" trademark should always be used as an adjective
and be followed by the word "mediaware" or "processor". It
should never be used as a noun or verb, nor should prefixes
or suffixes be attached.
b) In the trademark "Mpact", the "M" should always be
capitalized, the other letters should always be lowercase
and the "(TM)" symbol should be used.
c) "MAX" should be used without abbreviation. In the registered
trademark "MAX", the "C" and "R" should always be
capitalized, the other letters should always be lowercase
and the "(R)" symbol should be used.
d) The first usage of trademarks in materials should be
followed by a "(TM)" or "(R)", as applicable, and a "*" or
other designation for a footnote. A footnote stating that
"Mpact is a trademark, and MAX is a registered trademark, of
MAX, Inc." must be included.
6. User agrees not to register any MAX trademarks or trade names without
MAX's prior written consent, and agrees not to register any
confusingly similar trademarks or trade names.
7. All usage of MAX trademarks shall inure to MAX's benefit.
8. Upon written notice by MAX, User shall immediately suspend use of
MAX's trademarks and trade names if the quality of User's Hardware
Products is deemed to be inferior by MAX.
[MPACT! LOGOS]
26
<PAGE> 27
EXHIBIT C
<TABLE>
<CAPTION>
Purchase Order
--------------
<S> <C>
(Customer Information / Letterhead) Purchase Order No.
DATE ISSUED:
BUYER:
Ship Via:
Date Wanted:
Terms:
VENDOR SHIP TO (if different than above)
------ -------
MAX Internet Communications, Inc.
8115 Preston Road
Eighth Floor - East Tower
Dallas, TX 75225
Telephone 214-691-0055
Fax 214-691-6618
--------------------------------------------------------------------------------
Please enter our order for the following materials and services, subject to
standard terms and conditions. Date wanted is the requested delivery date at
customer.
Our order number must appear on all invoices and correspondence.
Only one P.O. number per invoice.
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
QTY ORDERED ITEM DESCRIPTION UNIT PRICE EXTENSION
----------- ------------------------------------------- ---------- ----------
<S> <C> <C> <C>
----------- ------------------------------------------- ---------- ----------
Subtotal
Shipping and Handling
Tax
----------
Total $
----------
</TABLE>
----------------------------------------------
Authorized Signature Date
27
<PAGE> 28
EXHIBIT D
--------------------------------------------------------------------------------
i.c. LIVE LIMITED WARRANTY
One Year Limited Warranty
MAX Internet Communications, Inc. warrants this product against defects in
material and workmanship under normal use for one (1) year from the date of
original retail purchase. MAX Internet Communications, Inc., at it's option,
will at no charge either repair the product (with new or reconditioned parts) or
replace it (with a new or reconditioned product) or refund the purchase price of
the product during the warranty period. Repaired/replacement products are
warranted for either 90 days or the remainder of the original warranty period,
whichever is longer. This warranty extends to the original end-user only.
What This Warranty Does Not Cover
This warranty does not cover: (a) installation or service of the product; (b)
conditions resulting from consumer damage such as improper maintenance or
misuse, abuse, accident or alteration; (c) exposed parts that are scratched or
damaged due to normal use; (c) product rented to others.
This warranty applies only to hardware and software products manufactured by or
for MAX Internet Communications, Inc. and identified by the MAX Internet
Communications, Inc. trademark, trade name or product identification logo
affixed to them.
No warranty is made as to coverage availability or grade of service provided by
the telephone line carrier.
General Provisions
This warranty sets forth our responsibilities regarding this product. Repair or
replacement or refund of the purchase price, at MAX Internet Communications,
Inc.'s option, is your exclusive remedy. THIS WARRANTY IS GIVEN IN LIEU OF ALL
OTHER EXPRESS WARRANTIES. IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
LIMITED TO THE DURATION OF THIS LIMITED WARRANTY. IN NO EVENT SHALL MAX Internet
Communications, Inc. BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASED PRICE OF
THE PRODUCT, FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS,
LOST PROFITS OR SAVINGS, OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OR INABILITY TO USE SUCH PRODUCT, TO THE FULL EXTENT SUCH
MAY BE DISCLAIMED BY LAW. WITHOUT LIMITING THE FOREGOING, MAX INTERNET
COMMUNICATIONS, INC. SHALL HAVE NO LIABILITY FOR ANY DATA STORED IN OR USED WITH
THE PRODUCT, INCLUDING THE RECOVER COSTS OF SUCH DATA OR PROGRAMS.
--------------------------------------------------------------------------------
508-9909
<TABLE>
<S> <C> <C>
[MAX i.c. Live LOGO]
Warranty Registration Card
In order to activate your one (3) year limited product
warranty, within 30 days of original purchase you must either
o Register online at http://www.maxic.com/support.htm
o Complete and mail in this card to us
Once we receive your registration, you will be signed up to
receive a username and password to the protected Comprehensive Technical
Support area of our website.
Hardware ID# - - -
-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
(Find this number by clicking on the "i.c. Live" in your system tray after
Mediaware Installation.)
First Name: Last Name: MAIL THIS CARD TO:
-------------------- --------------- MAX INTERNET COMMUNICATIONS, INC.
Email Address: 8115 PRESTON ROAD
--------------------------------------------- EIGHTH FLOOR - EAST TOWER
Phone #: Fax #: DALLAS, TEXAS 75225
---------------------- --------------------
Company Name:
--------------------------------------------
Street Address: City/State/Zip:
-------------------------------------- -------------------------------------
Where did you purchase i.c. Live
-------------------------------------------------------------------------
</TABLE>
28
<PAGE> 29
--------------------------------------------------------------------------------
State Law Rights
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO
THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. This warranty gives
you specific legal rights, and you may also have other rights which vary from
state to state.
Provincial Law Rights
SOME PROVINCIAL LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES OR THE EXCLUSION OR LIMITATION OF WARRANTY COVERAGE IN CERTAIN
SITUATIONS, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS CONTAINED IN THIS
LIMITED WARRANTY MAY NOT APPLY TO YOU. This warranty gives you specific rights,
and you may have other rights, which vary from province to province.
HOW TO USE MAX INTERNET COMMUNICATIONS, INC.'S LIMITED WARRANTY SERVICE
To take advantage of this warranty, you must do the following:
o Contact MAX Internet Communications, Inc. by dialing the appropriate phone
number for product repairs/returns as listed in the "Service and Support"
Card included with i.c. Live
o If it is determined that your product requires service, you will be issued
a Return Authorization Number (RMA).
o Pack the defective product securely for shipping. Include only the part(s)
that are defective.
o To ensure prompt service, please include a letter indicating the specific
cause for returning the product(s).
Ship the defective product(s), copy of original purchase invoice, with RMA
number to:
MAX Internet Communications, Inc.
12917 Valley Branch Lane
Farmers Branch, TX 75234
Attention: RMA #
o Make certain that your RMA number is displayed prominently on the outside
of the shipping box.
o This warranty is void if the product is damaged in transit. Please insure
your shipment.
--------------------------------------------------------------------------------
508-9909
MAX INTERNET COMMUNICATIONS, INC.
8115 PRESTON ROAD
EIGHTH FLOOR- EAST TOWER
DALLAS, TEXAS 75225
29
