CONFIDENTIAL
DIGITAL BITCASTING CORPORATION/ENTERTAINMENT BOULEVARD, INC
STRATEGIC ALLIANCE AGREEMENT
[BITCASTING LOGO]
This is an Agreement between, Digital Bitcasting Corp. ("Bitcasting") 00
Xxxxxxxx Xx., Xxxxx XX 00000, XXX, a Delaware corporation and Entertainment
Boulevard Inc ("EBlvd"), 0000 Xxx Xxx Xxx, Xxxxx 000, Xxxxxx Xxx Xxx, XX 00000,
XXX, a corporation incorporated in the State of Nevada under which Bitcasting
and EBlvd ("Companies") in exchange for promises contained herein desire to
establish a Strategic Alliance.
I. OVERVIEW
EBlvd and Bitcasting desire to work together to leverage the respective
strengths of EBlvd's content, content partners, strategic & technical alliances
("EBlvd Partners") and Bitcasting's MPEG encoding and G2 client-server plug-in
that enables the G2 platform to stream MPEG-1, MPEG-2 and MP3 content ("G2
Upgrade") as well as Bitcasting's Customer, Infrastructure, Backbone and
End-Point Provider Partnerships ("Bitcasting Partners").
II. TERM
This Agreement shall commence as of the Effective Date, and continue thereafter
for a period of (1) year ("Term"), unless terminated earlier as provided herein
or unless a specific clause defines a different term, as in Section IV(b).
Thereafter, this Agreement may be renewed for subsequent one-year terms by
written agreement of the parties. Neither party shall have any right or
obligation to renew this Agreement.
III. STRATEGIC ALLIANCE
In exchange for the Conditions detailed below Bitcasting will provide the
following to EBlvd:
(a) Preferred Partner discounts of twenty-five-percent (25%) on Bitcasting G2
Upgrade licensed for the benefit of Eblvd
(b) Exclusive licensing rights to the G2 Upgrade solely for the Internet
distribution of music video and movie trailer content ("Content") at data
rates of five-hundred kilobits (500Kbps) and higher.
(c) Referral of potential customers and partners that express interest in EBlvd
content ("Interested Customer") to EBlvd.
Bitcasting/EBlvd Strategic Alliance Agreement - 2/6
(d) Preferred placement of EBlvd logo with link and media on Bitcasting's own
WWW media samples page.
(e) Inclusion of EBlvd logo and link on Bitcasting's own WWW Partner page.
(f) Recognition and display of EBlvd content and logo at trade show booth when
Bitcasting is exhibitor.
(g) Joint Press release, within 30 days of this Agreement, detailing Strategic
Alliance and EBlvd's streaming media activities using Bitcasting
technologies.
In exchange for the Conditions detailed below EBlvd will provide the following
to Bitcasting:
(h) Referral of potential customers and partners that express interest in
Bitcasting technology ("Interested Customer") to Bitcasting.
(i) Preferred placement of "Broadband Powered by Bitcasting" logo with link on
Vidnet and Screen Clips WWW home page.
(j) Inclusion of Bitcasting's logo and link on EBlvd's own WWW Partner page.
(k) Recognition and display of Bitcasting logo at trade show booth when EBlvd
is exhibitor.
(l) Referral to Bitcasting as Broadband Technology Partner is all EBlvd public
relation efforts dealing with broadband arena using RealSystem G2(TM)
architecture.
(m) Joint press release, within 30 days of this Agreement, detailing Strategic
Alliance and EBlvd's streaming media activities using Bitcasting
technologies.
IV. PAYMENT TERMS & CONDITIONS
(a) The Agreement shall become effective only if executed by the Companies on or
before July 23, 1999, 5:00 PM EST
(b) Exclusive Bitcasting licensing rights to EBlvd, as defined in section III(b)
shall be granted for a period of six (6) months, commencing sixty (60 days) upon
execution of the Agreement, at the rate of eighteen-thousand-dollars
($18,000.00) per month. Funds are not refundable except for Termination as
defined in section VI. Total amount of one-hundred-eight-thousand-dollars
($108,000.00) must be wired to Bitcasting bank account as per Section V on or
before July 23, 1999, 5:00 PM EST.
(c) Total amount of forty-thousand-dollars ($40,000.00) for all hardware
enabling G2 Upgrade, as described in Bitcasting Quote #LICMICM4071599, must be
wired to Bitcasting bank account as per Section V on or before July 23, 1999,
5:00 PM EST.
(d) Total amount of fifteen-thousand-forty-four-dollars ($15,044.00) for server
software license enabling G2 Upgrade, as described in Bitcasting Quote
#LICMICM4071599, is payable on NET30 terms.
(e) Bitcasting Referrals - If Bitcasting customer or prospect acquires a license
to the content, or generates advertising or e-commerce revenues paid to EBlvd,
EBlvd shall pay Bitcasting a
Bitcasting/EBlvd Strategic Alliance Agreement - 3/6
commission of 10% of the all gross revenues invoiced from such Interested
Customer for a period of 12 months.
(i) EBlvd will provide Bitcasting with a written report by the 20th
day of each month for the preceding calendar month setting forth (a)
names and addresses of customer; (b) description of product(s) or
service(s) sold; (c) price of service(s) sold; (d) gross revenue
receivable by EBlvd (whether or not actually collected); (e) the amount
due to Bitcasting pursuant to Section V(e.). The report shall be
accompanied by payment due. The amount of payment shall be based on
sales invoiced by EBlvd, whether or not the revenue is actually
collected. The payment shall be due and payable to Bitcasting within
thirty (30) days after EBlvd has invoiced its customer for such
product(s) or service(s).
(f) EBlvd Referrals - If EBlvd customer or prospect acquires a license to
the Bitcasting G2 Upgrade, Bitcasting shall pay EBlvd a commission of 10% of
the gross revenues from the licensing of the G2 Upgrade invoiced from such
Interested Customer for a period of 12 months.
(i) Bitcasting will provide EBlvd with a written report by the 20th day
of each month for the preceding calendar month setting forth (a) names
and addresses of customer; (b) description of product(s) or service(s)
sold; (c) price of service(s) sold; (d) gross revenue receivable by
Bitcasting (whether or not actually collected); (e) the amount due to
EBlvd pursuant to Section V(e.). The report shall be accompanied by
payment due. The amount of payment shall be based on sales invoiced by
Bitcasting, whether or not the revenue is actually collected. The
payment shall be due and payable to EBlvd within thirty (30) days after
Bitcasting has invoiced its customer for such product(s) or service(s).
(g) Books and Records - The Companies shall each keep books and accounts
with respect to the amounts due and the calculations required to be made
under Section IV (e)(i) and (f)(i). Upon Bitcasting's or EBlvd's reasonable
written request, and no more than once per year of the Term, the Companies,
as the case may be, may audit and inspect all such books of account, through
an independent third party auditor and during normal business hours, provided
that such auditor shall undertake in writing to protect the confidentiality
of the business data and records of the Companies, as the case may be. The
cost of any such audit shall be paid by the party conducting the audit;
provided, however, that in the event a party initiates an audit of the other
party under this Section IV(g) and it is finally determined that the amount
reported and paid by the other party pursuant to Section IV (e)(i) and (f)(i)
for the period(s) audited is, in the aggregate, less than ninety-five per
cent (95%) of the amount actually due, then the audited party, shall pay the
reasonable costs and expenses of said audit. If any such audit reveals an
underpayment of fees due, the audited party shall make any corresponding
payment within thirty (30) days. An underpayment shall be subject to interest
of one-and-one-half percent (1.5%) per month or the maximum allowed by law,
whichever is less. The Companies will each maintain their books and records
applicable to each reporting period for at least three (3) years following
the close of such period.
Bitcasting/EBlvd Strategic Alliance Agreement - 4/6
V. WIRE INFORMATION
Bank Name = BankBoston, 000 Xxxxxxx Xxxxxx, Xxxxxx Xx. 00000, XXX
Routing number = 0000-0000-0
Account number = 749-54841
Account Name = Digital Bitcasting
Corp., 00 Xxxxxxxx Xxxxxx, Xxxxx, Xx 00000, XXX
VI. TERMINATION BY EITHER PARTY
Either party in the event of any of the following may terminate this Agreement:
(a) either party may terminate this Agreement if the other
party fails to perform any material term or condition of this
Agreement, which shall constitute a default of this Agreement, and such
default has not been corrected within thirty (30) days of written
notice from the non-breaching party. The right of either party to
terminate hereunder shall not be affected in any way by its waiver of
or failure to take action with respect to any previous default or
(b) either party may terminate this Agreement immediately
upon 60 days written notice if the other party (i) makes a general
assignment for the benefit of creditors; (ii) institutes proceedings
to be adjudicated a voluntary bankrupt, or consent to the filing of
a petition of bankruptcy against it; (iii) is adjudicated by a court
of competent jurisdiction as being bankrupt or insolvent; (iv) seeks
reorganization under any bankruptcy act, or consent to the filing of
a petition seeking such reorganization; or (v) has 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.
VII. CONFIDENTIALITY
All discussions regarding the Agreement shall be subject to the Non-Disclosure
Agreement between the parties dated May 21, 1999 ("NDA").
IIX. INTELLECTUAL PROPERTY LICENSES
Nothing in this Agreement is intended to constitute a license from one party to
the other to any hardware or software intellectual property.
IX. ANNOUNCEMENTS
Prior to the execution of the Agreement by the parties, neither party shall make
any public announcement about the subject matter or existence of the Agreement
or the parties' discussions in connection with this Agreement unless the other
party has consented in writing to the text of
Bitcasting/EBlvd Strategic Alliance Agreement - 5/6
the intended announcement (including without limitation the exact context for
the use of any quote the other party has provided). Either of the parties may at
any time make announcements which are required by applicable law, regulatory
bodies, or stock exchange or stock association rules, so long as the party so
required to make the announcement, promptly upon learning of such a requirement,
notifies the other party of the requirement, discusses with the other party the
exact wording of any required announcement, and takes into account in good faith
such other party's comments on such exact wording.
X. COSTS AND EXPENSES:
Each of the parties agrees to pay all costs and expenses it incurs in connection
with this Agreement and the negotiation of the Agreement.
XI. JURISDICTION
The laws of Massachusetts shall govern this Agreement.
XII. INDEMNITY
EBlvd acknowledges that it holds rights to distribute music video and movie
trailer content and agrees to indemnify, except with respect any claim of
infringement with respect to the MPEG, defend and hold Bitcasting and its
directors, officers, agents, employees and representatives harmless from and
against all actions, claims, demands, suits, losses, liabilities, damages,
settlements, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses and expenses of investigation) in connection with
any third party claim that the original material created by Bitcasting and
included in the Bitcasting Products infringes any U.S. trademark, U.S. service
xxxx, issued U.S. patent, U.S. copyright, or misappropriates any U.S. trade
secret .
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL OR PUNITIVE DAMAGE OR LOSS OF ANY NATURE (E.G.,
DAMAGE TO PROPERTY, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS, LOSS
OF USE, LOST OR DAMAGED FILES OR DATA, INJURY TO PERSON, OR ANY CLAIMS OF THOSE
NOT A PARTY TO THE AGREEMENT) WHICH MAY ARISE IN CONNECTION WITH THE USE,
ADAPTATION, MERGER, INCORPORATION, DISTRIBUTION, INSTALLATION, REMOVAL OR
SUPPORT OF THE LICENSED SOFTWARE AND/OR THE PARTNER PRODUCTS PURSUANT TO THIS
AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN WARRANTY, CONTRACT,
NEGLIGENCE, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. BECAUSE SOME
STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR
Bitcasting/EBlvd Strategic Alliance Agreement - 6/6
INCIDENTAL, DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY, AND THE PARTIES MAY
ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
Digital Bitcasting Corp. Entertainment Boulevard, Inc
/s/ J. Xxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxx
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J. Xxxxx Xxxxxxxxx Xxxxxxx Xxxxx
President President
Dated: July 23, 1999 Dated: July 23, 1999
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