Exhibit 10.45
XXXX.XXX/XXXXXXXXXXXXX BOULEVARD
AGREEMENT
This is an agreement dated as of January 10th, 2000, between
Entertainment Boulevard, Inc. a Nevada corporation located at 00000 Xxxxxx
Xxxxxxxxx, Xxxxx X, Xxx Xxxxxxx, XX 00000 ("EBLD"), and Xxxx.xxx ("Akoo"), an
Illinois corporation, located 0000 X. Xxxxxx Xxx., Xxxxxxx Xxxx, XX 00000. In
consideration of the mutual premises and undertakings stated herein and
Exhibit A attached hereto and made a part hereof, the parties hereto agree as
follows (the "Agreement"):
1. TRADEMARKS
1.1 EBLD IDENTITIES ON AKOO SITE. EBLD hereby grants a
non-exclusive cost-free license (without the right of sublicense)
throughout the Term of this Agreement to Akoo to use the EBLD name and logo
and other proprietary identities of EBLD (collectively, "EBLD Xxxx(s)" in
connection with Akoo's website called "Xxxx.xxx" ("Xxxx.xxx") currently
located at xxxx://xxx.Xxxx.xxx, solely as stated in Exhibit A.
2. CONTENT
2.1 LICENSE. EBLD hereby grants a non-exclusive cost-free license
(without the right of sublicense) throughout the Term of this Agreement to
Akoo to use the certain content owned and/or controlled by EBLD, as described
on Exhibit A (collectively, "EBLD Content") in connection with Akoo, solely
as stated on Exhibit A.
2.2 CREATION OF CONTENT. Each party will be responsible for the
creation, development and publication of its respective Content. Neither
party will use the Content of each other's site in any way whatsoever
without the other party's prior approval.
2.3 QUALITY CONTROL. Each party agrees to maintain the quality of
the content of its site to at least the same level as has existed
heretofore. If either party, in its reasonable discretion, determines that
the content of the other party's site falls below this pre-existing standard
of quality and does not otherwise meet the editorial standards and quality
of its own site, that party will notify the other party to that effect in
writing giving specific details of the failure to meet such standards and
the party receiving that notice will remedy the deficiencies specified in
such notice within 30 days after the date of its receipt of that notice. If,
following such 30-day period, the quality of the applicable site has not
sufficiently improved, the party that gave the original notice may terminate
the Agreement effective immediately upon the receipt by the other party of
notice of termination.
2.4 LIMITATION OF RIGHTS. Each party's use of the other party's
Marks and Content, as well as the use of the any links described on Exhibit
A, is strictly limited to the uses stated in this Agreement. Neither party
acquires any rights in or to the other party's Marks and/or the goodwill
inherent therein by this Agreement or otherwise. All rights granted under
this Agreement, including the right to use the other party's Marks or
Content, or to link to the other party's Content shall revert to the granting
party upon termination.
3. FINANCIAL
3.1 PRODUCTION EXPENSES. Each party will be solely responsible for
its own expenses incurred in undertaking its rights and responsibilities under
this Agreement and otherwise in operating its website.
3.2 ADVERTISING
(a) RETAINED RIGHTS. Each party will have the right to
continue to transact advertising and promotional
programs for its own website, to retain all
advertising inventory, set all packaging and pricing,
and retain all revenue generated for any advertising
thereon. No such arrangements by a party can allow for
any third-party use of the other party's Marks or
Content without the prior written approval of that
other party. Notwithstanding the foregoing, the parties
hereby acknowledge and agree that EBLD shall have the
exclusive right to transact advertising and promotional
programs related to, to retain all advertising
inventory, set all packaging and pricing, and retain
all revenue generated by any advertising on any Players
developed pursuant to this Agreement. Notwithstanding
the foregoing, the parties hereby acknowledge and agree
that Akoo shall have the exclusive right to transact
advertising and promotional programs related to, to
retain all advertising inventory, set all packaging
and pricing, and retain all revenue generated by any
advertising on any co-branded pages developed pursuant
to this Agreement.
(b) ADVERTISING REFERRALS. Each party may, from time to
time, refer leads to the other party for advertising
relating to the co-branded Player or co-branded pages
developed pursuant to this Agreement. All referrals
will be confirmed in writing (via e-mail to
xxxx@xxxxxxxxxxxxxxxxx.xxx for EBLD or xxxxx@xxxx.xxx
for Akoo or such other e-mail addresses as the parties
may designate) to the other party within 24 hours
following the referral. The parties agree that the
referring party will receive a payment of 50% of the
proceeds (less sales commissions) of any advertising
relating to the co-branded Player or co-branded pages
sold by the party to whom the lead was referred.
Payments will be remitted to the referring party within
30 days following receipt by the other party.
(c) CUSTOMER DATA. Akoo shall own and retain all right,
title and interest in all names, addresses and other
identifying information of users of Akoo, including,
without limitation, any co-branded pages developed
hereunder and EBLD will have no right to use any such
customer data.
3.3 PRODUCT SALES. EBLD will offer Player users the opportunity
to purchase products through EBLD's deal with XxxxxXxx.xxx
("CO") as follows:
(a) LINKS. The Player will include a button to link to
CO in a mutually agreed upon design.
(b) ORDER PROCESSING. CO will process product orders
placed by customers who follow these links from the
Player to the CO site. CO reserves the right to
reject orders that do not comply with any
requirements that CO periodically may establish. CO
will be responsible for all aspects of order
processing and fulfillment, including without
limitation: preparing order forms; processing
payments, cancellations, and returns; and handling
customer service, CO will track sales made to
customers who purchase products using the links from
the Player to the CO site and will send EBLD reports
summarizing this sales activity.
(c) CUSTOMER DATA. CO shall own and retain all right,
title and interest in all names, addresses and other
identifying information of users of XxxxxXxx.xxx.
(d) REFERRAL FEES. EBLD will pay Akoo referral fees on qualified
product sales to third parties. For a product sale to
generate a referral fee, the customer must follow a link
from the Player to the CO site; purchase a qualified
product using CO's automated ordering system; accept
delivery of the product at the shipping destination; and
remit full payment to CO. CO will not, however, pay
referral fees on any products that are added to a
customer's Shopping Cart after the customer has re-entered
CO's site (other than through a link from the Player), even
if the customer previously followed a link from the Player
to the CO site. Products that are entitled to earn referral
fees under the rules set forth above are hereinafter
referred to as "Qualifying Products."
(e) FEE SCHEDULE. Referral fees will be earned based on the sale
price of Qualifying Products (as defined above), according
to the fee schedule set forth below. As used below, "sale
price" means the sale price listed in CO's catalog, and
excludes costs for shipping, handling, gift-wrapping, and
taxes. The established base fee schedule is four percent
(4%) of the sale price for sales of Qualifying Products.
EBLD will pay referral fees on a quarterly basis.
Approximately thirty (30) days following the end of each
calendar quarter, EBLD will send Akoo a check for the
referral fees earned on Qualifying Products that were
shipped during that calendar quarter, less any taxes
withheld. However, if the fees payable to Akoo for any
calendar quarter are less than $100.00, those fees will be
held until the total amount due is at least $100.00 or
unitl this Agreement is terminated. If a product that
generated a referral fee is returned by the customer, the
corresponding fee will be deducted from the next payment.
If there is no subsequent payment, a xxxx for the fee will
be sent.
(f) POLICIES AND PRICING. Customers who buy products through CO
will be deemed to be CO's customers. Accordingly, all CO
rules, policies, and operating procedures concerning
customer orders, customer service, and product sales will
apply to those customers. CO will determine the prices to
be charged for products sold under this Program in
accordance with CO's pricing policies. Product prices and
availability may vary from time to time.
(g) PROMOTIONS AND INCENTIVES. During the Term of the Agreement,
CO will provide special promotions to EBLD users at least
six (6) times per year. These promotions will be mutually
agreed upon by EBLD and CO and will be provided to Akoo
users as well.
4. APPROVALS
4.1 PRIOR APPROVAL REQUIRED. All uses by either party of the other
party's Marks and Content and links to each other's Content must be submitted
to and approved by the other party prior to their use, with such approval not
to be unreasonably withheld. Failure to so seek and receive prior approval
will be grounds for immediate termination of this Agreement, and such
termination right will not constitute a waiver of any other rights available
to a party as a result thereof.
4.2 NO PUBLICITY WITHOUT CONSENT. Neither party will issue or
permit issuance of any press release regarding the other party or this
Agreement without prior coordination with and approval by the other party.
4.3 LINK TO XXXX.XXX. EBLD agrees to include a link to Xxxx.xxx
from the page on its Web site listing alliance partners.
5. TERM
5.1 TERM. This Agreement shall be effective as of the date of this
Agreement, and will continue for one (1) year (the "Term"). Both parties
shall have the right to terminate this Agreement upon thirty (30) days
written notice during the first three months of the Term.
5.2 EARLY TERMINATION. Each party shall have the right to
terminate this Agreement immediately on notice: (a) upon a breach of any
material obligation hereunder by the other party other than those specified
in section 4.1, if such breach is not cured within 30 days following the date
the breaching party receives notice from the non-breaching party describing
in reasonable detail the elements of such breach; (b) in the event the other
party becomes insolvent (I.E., unable to pay its debts in the ordinary course
as they come due); or (c) pursuant to sections 4.1 or 5.1 above.
5.3 EVENTS UPON TERMINATION. Upon the expiration or termination of
this Agreement for any reason, both parties shall immediately remove all
links to the other party's Content and website(s) and cease all use of the
other party's Marks and any and all use of any kind whatsoever of the other
party's Content.
5.4 SURVIVAL. Sections 2.4, 4.2, 7 and 8 will survive the
termination or expiration of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
Each party to this Agreement represents and warrants to the other
that: (a) such party has all necessary right, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder; (b) the execution of this Agreement by such party and its
performance of its obligations hereunder do not and will not violate
any agreement by which such party is bound; (c) such party has (and
will have throughout the Term) all necessary rights in and to its
Marks, content links and Content described in this Agreement to allow
it to make those indicia and materials available to the other party
and users of that party's website as contemplated by this Agreement
without violating the rights of any third party; and (d) it has (and
will have throughout the Term) all necessary rights in and to all
underlying technology (including both hardware and software) utilized
in connection with its website and all such underlying technology does
not infringe on any patent, copyright, trademark, trade secret or
other intellectual property or proprietary right of any third party.
7. INDEMNIFICATION
7.1 MUTUAL INDEMNIFICATION. Each party hereby agrees to indemnify
and hold harmless the other party, its parent and subsidiary companies
and their respective officers, agents, directors, employees and
authorized representatives from and against any costs, losses,
liabilities and expenses, including court costs, reasonable expenses
and reasonable attorney's fees that any of them may suffer, incur or
be subjected to by reason of any legal action, arbitration or other
claim by a third party arising out of or as a result of a breach of
the indemnifying party's representations and warranties made
hereunder, the operations of the indemnifying party's website as
authorized by this Agreement or otherwise, any allegations that the
use of the indemnifying party's Marks, Content, links and/or content on
its violates any intellectual property rights of any third party, any
allegation that any content on its website is defamatory or violates
any privacy or publicity rights of any third party, and/or any of its
other obligations under this Agreement.
7.2 INDEMNIFICATION PROCEDURES. If either party entitled to
indemnification hereunder (an "Indemnified Party") makes an
indemnification request to the other, the Indemnified Party shall
permit the other party (the "Indemnifying Party") to control the
defense, disposition or settlement of the matter at its own expense;
provided that the Indemnifying Party shall not, without the consent
of the Indemnified Party enter into any settlement or agree to any
disposition that imposes an obligation on the Indemnified Party that
is not wholly discharged or dischargeable by the Indemnifying Party, or
imposes any conditions or obligations on the Indemnified Party other
than the payment of monies that are readily measurable for purposes of
determining the monetary indemnification or reimbursement obligations
of Indemnifying Party. The Indemnified Party shall notify Indemnifying
Party promptly of any claim for which Indemnifying Party is responsible
and shall cooperate with Indemnifying Party in every commercially
reasonable way to facilitate defense of any such claim; provided that
the Indemnified Party's failure to notify Indemnifying Party shall
not diminish Indemnifying Party's obligations under this Section except
to the extent that Indemnifying Party is materially prejudiced as a
result of such failure. An Indemnified Party shall at all times have
the option to participate in any matter or litigation through counsel
of its own selection and at its own expense.
8. CONFIDENTIALITY. The parties acknowledge that, in the course of their
dealings hereunder, each may acquire information about the other, its
business activities and operations, its technical information and its
trade secrets, all of which are proprietary and confidential (the
"Confidential Information"). Each party agrees that the terms of this
Agreement shall be deemed the Confidential Information of each party.
During the Term of this Agreement (including any Extension Terms) and
for a period of two (2) years after the expiration or termination of
last Extension Term, each party hereby agrees that: (i) all
Confidential Information shall remain the exclusive property of the
disclosing party; (ii) it shall maintain, and shall use prudent
methods to cause its employees, agents and its Affiliates to maintain,
the confidentiality and secrecy of the Confidential Information; (iii)
it shall use prudent methods to ensure that its employees, agents and
its Affiliates do not copy, publish, disclose to others or use (other
than pursuant to the terms hereof) the Confidential Information; and
(iv) it shall return or destroy all copies of Confidential Information
upon request of the other party. Notwithstanding the foregoing,
Confidential Information shall not include any information to the
extent that it: (i) is or becomes a part of the public domain through
no act or omission on the part of the receiving party; (ii) is
disclosed to third parties by the disclosing party without similar
restriction on such third parties; (iii) is in the receiving party's
possession without the receiving party's actual or constructive
knowledge of an obligation of confidentiality with respect thereto, at
or prior to the time of disclosure under this Agreement; (iv) is
disclosed to the receiving party by a third party having no obligation
of confidentiality with respect thereto; (v) is independently
developed by the receiving party without reference to the disclosing
party's Confidential Information; or (vi) is released from
confidential treatment by written consent of the disclosing party.
9. GENERAL
9.1 COSTS. Each party shall be responsible for all costs and
expenses incurred by it in connection with the performance of its
obligations under this Agreement.
9.2 ASSIGNMENT. None of the rights and obligations of the parties
to this Agreement may be assigned by either party, except (a) to the
transferee of substantially all of the business operations of such
party (whether by asset sale, stock sale, merger or otherwise) or (b)
to any entity that is controlled by, or is under common control with,
such party.
EXHIBIT A - DESCRIPTION OF LICENSED CONTENT
A. CO-BRANDED MUSIC VIDEO INDEX PAGE
a) This video index page will be hosted by Akoo and will be promoted from
the Xxxx.xxx homepage. EBLD will provide indexing information for
selections of its music video library in digital format so that Akoo
can include the information in its database in a searchable format with
links to the co-branded Player.
b) Includes links to Akoo's top ten music videos, updated weekly or
bi-weekly.
c) Links open co-branded Entertainment Boulevard Music/Akoo Music Video
Player, with streaming content and Player pages served by EBLD.
d) Player shall include embedded music videos, navigation links, and an
advertisement as well as any additional content to be mutually agreed
upon. The Player shall contain both parties' logos. The videos will be
available in 28k, 56k, 80k, and 300k transfer rates or through any
mutually agreed upon technology that becomes available during the Term.
B. CO-BRANDED MOVIE TRAILER INDEX PAGE
a) This movie trailer index page will be hosted by Akoo and will be
promoted from the Xxxx.xxx homepage. EBLD will provide indexing
information for its entire movie trailer library in digital format so
that Akoo can include the information in its database in a searchable
format with links to the co-branded Player.
b) Links open co-branded Entertainment Boulevard Movies/Akoo Movie
Trailer Player, with streaming content and Player pages served by EBLD.
c) Player shall include embedded movie trailers, navigation links, and an
advertisement as well as any additional content to be mutually agreed
upon. The Player will contain both parties' logos. The Content will be
available in 28k, 56k, 80k, and 300k transfer rates or through any
mutually agreed upon technology that becomes available during the Term.
d) Page and/or Player includes links to Entertainment Boulevard Movies'
subsections: Coming Soon, Now Playing, and On Video.
EXHIBIT B
AKOO ADVERTISING GUIDELINES
EBLD shall not place any ads on the co-branded player from the following:
1) Web sites or companies promoting or selling sexually explicit
materials; or
2) The following competitors of Xxxx.xxx:
a) Streamsearch
b) Xxxxx.Xxx
c) Channelseek
d) Xxxx.xxx
e) Streambox
f) Global Streams
g) Xxxxxxxxx.xxx
h) Sonicbox
i) Kerbango
Xxxx.xxx reserves the right to update this list on a monthly basis.
EXHIBIT C
COMPETITORS
1. Xxxxxx.xxx
2. XxxXX.Xxx/Xxxxx.Xxx/XxxxxxxXxxxx.xxx
3. Xxxxxxxx.xxx/xxx.xxx/xxx.xxx
4. Xxxxxxxxx.xxx
5. Xxxx.xxx
9.3 RELATIONSHIP OF PARTIES. This Agreement does not create a joint
venture, partnership or principal/agent relationship between the parties
hereto, nor imposes upon either party any obligations for any losses,
debts or other obligations incurred by the other party except as
expressly set forth herein.
9.4 ENTIRE AGREEMENT. This Agreement states the entire agreement
between the parties with respect to its subject matter and supersedes
any prior oral or written agreements. This Agreement may not be amended
except in writing signed by both parties.
9.5 APPLICABLE LAW. This Agreement will be construed according to
the laws of the State of California, without regard to principles of
conflicts of law.
9.6 INVALIDITY OF PROVISIONS. If any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, in whole or in
part, then the parties will be relieved of all obligations arising under
such provision, but only to the extent that it is illegal, unenforceable,
or void, it being the intent and agreement of the parties that this
Agreement be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its
intent or, if that is not possible, by substituting therefor another
provision that is legal and enforceable and achieves the same objectives.
9.7 NOTICE. Any notice due by one party to the other will be given
to the address listed above and marked to the attention of the signatory
specified below, unless a party hereafter designates a successor address
or contact person. All notices will be transmitted by private courier or
facsimile transmission, and will be deemed given as of the date of a
written courier's receipt or electronic facsimile confirmation report.
ACKNOWLEDGED AND AGREED ACKNOWLEDGED AND AGREED
ENTERTAINMENT BOULEVARD, INC. AKOO, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
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Title: CEO Title: V.P. Business Development
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