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EXHIBIT 10.22
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked [****], have been
separately filed with the commission.
WEB SITE DEVELOPMENT AGREEMENT
Agreement made as of the 18th day of June, 1997, by and between WBGO,
00 Xxxx Xxxxx, Xxxxxx, X.X. 00000 ("WBGO") and N2K INC., 00 Xxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000 ("N2K")
WHEREAS, WBGO is a radio station broadcasting a jazz format
within the Metropolitan New York/New Jersey vicinity, (the "Programming
Service"); and
WHEREAS, N2K is the designer and operator of Internet-based
information and transaction services, and engaged in providing content via its
online service, Jazz Central Station ("JCS"), which is available free to the
public through the Internet and commercial online services; and
WHEREAS, WBGO and N2K desire to establish and maintain a WEB
site within N2K's JCS (hereafter the "WEB SITE," as further defined in section
1(d) below), through which WBGO and N2K will provide to users of the Internet
and commercial on-line services (hereafter the "Internet" shall refer to the
Internet and commercial on-line services collectively), the retransmission of
certain portions of WBGO's over the air programming to such Internet users; and
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for good and other valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. RIGHTS GRANTED
(a) WBGO grants to N2K an exclusive license to (i) load and
store the computer files constituting the WEB SITE, on N2K's World Wide Web
server, (ii) make the computer files constituting the WEB SITE readily available
for transmission and, where applicable, downloading on demand to computers
connected to the Internet;
(b) WBGO grants to N2K a license to use its trademarks (the
"Marks") within the WEB SITE, and in any media for advertising and publicity and
in connection with WEB SITE and in promotional materials prepared in connection
with the WEB SITE (the "Promotional Materials"). WBGO agrees that the WEB SITE
will be the only web site through which the Programming Service will be
available and agrees to so indicate on its marketing materials and relevant
formal public communications
(c) WBGO grants N2K the exclusive right and license to
retransmit on-line those portions of WBGO's complete Programming Service which
is owned and/or controlled by WBGO (the "WBGO Programming Service"), to provide
said WBGO Programming Service
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(through "Streaming Audio" or equivalent technology) free to the public via its
online service, (the "Retransmission"). WBGO agrees that it will not make the
Programming Service available to any other Web site or on-line service. N2K
agrees that the Retransmission will be on a "live" or "real time" basis. For
avoidance of doubt, the WBGO Programming Service will not include certain
programs provided and controlled by third parties, such as National Public
Radio, where WBGO does not have authority to retransmit such programming and so
notifies N2K reasonably in advance. In each such instance where such programming
is not available for retransmission by N2K, WBGO agrees to cooperate with N2K in
obtaining suitable substitute programming material. In consideration of WBGO's
agreement not to grant a similar license for the retransmission of any or all of
WBGO's Programming Service, N2K agrees that it will not, during the term hereof,
contract with any other third party, operating a traditional jazz radio station,
to carry such station's program service within N2K's JCS. For avoidance of
doubt, the foregoing shall not be construed as prohibiting or in any way
limiting N2K from transmitting performances of jazz music in conjunction with or
without other multimedia and interactive content, through JCS or its other
on-line services.
(d) For purposes of this agreement the "WEB SITE" shall refer
to the World Wide Web site created pursuant to this Agreement and its
constituting data and program files, including without limitation, the User
Interface (as hereafter defined) formatted in HTML or any other programming
language, and produced for transmission over the Internet, as such site may be
updated from time to time. It is agreed that the WEB SITE shall constitute a
single "page" within JCS, containing the Retransmission and related text and/or
graphics, provided that at such time as the content on the WEB SITE reaches the
capacity of the single page, the WEB SITE shall be enlarged, subject to the
mutual approval of the parties hereto.
2. PERFORMANCE LICENSING:
N2K will notify ASCAP and BMI and any other necessary licensing
authority of its intention to carry WBGO's broadcast signal, will obtain any and
all licenses from these or other entities and will be responsible for any and
all fees and other responsibilities required for the Retransmission on JCS and
hereby indemnifies WBGO with respect to any claims arising from N2K's breach of
this warranty.
3. ENGINEERING AND MAINTENANCE:
N2K shall (i) link the WEBSITE to N2K's databases and related services,
and (ii) operate the WEB SITE as heretofore described above. N2K shall store the
WEB SITE on its servers, and provide and maintain the technical systems through
which the WEB SITE shall be accessed via the Internet. N2K shall be solely
responsible for the operation of the WEB SITE and will bear the cost of the
aforementioned WEB SITE design and development, including, without limitation,
HTML formatting, software development and software licensing, subject to the
provisions of section 5(b) below.
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4. UPDATES AND TECHNICAL MAINTENANCE
During the term of this agreement, N2K agrees to perform the functions
described in Section 3 above, from time to time as it deems necessary, to update
and to maintain the WEB SITE in proper working order and to use the same or
substantially equivalent methods for delivery of Retransmission as the most
widely recognized and technically advanced. N2K will bear the costs incurred in
performing the aforementioned tasks subject to the provisions of section 5(b)
below.
5. BUDGET
(a) N2K agrees to allocate and spend approximately [****]
Dollars in one time costs (the "Development Expense") to design, produce and
provide initial maintenance to establish the WEB SITE and approximately [****]
Dollars during the term to maintain the WEB SITE (the "Maintenance Expense").
(b) In consideration for the costs to be incurred by N2K as
set forth in 5(a) above, the benefits to WBGO of the WEB SITE'S presence on JCS
and the other forms of promotion for WBGO to be provided by N2K, WBGO agrees to
provide, at no cost to N2K, a minimum of three hundred fifty (350) thirty second
(0:30) "Underwriting Announcements" during each year of the term hereof. (the
"Barter").
(c) Subject to any FCC or other applicable restrictions or
guidelines, WBGO will make such inventory of Barter (as set forth in 5(b) above)
available to N2K over the Term of this agreement, according to a schedule
mutually agreed upon by N2K and WBGO.
6. COPYRIGHTS, OWNERSHIP OF CONTENT
(a) N2K represents that it has or will have the rights to and WBGO
agrees that all of the following are and shall remain the sole and exclusive
property of N2K: (i) all the software code, created by N2K or licensed by it,
and used in the operation of the WEB SITE, including but not limited to the User
Interface of the WEB SITE, any works derived therefrom and the copyrights
therein; (ii) all content developed or produced by N2K and used in the WEB SITE
(including any content licensed by N2K from third parties), including but not
limited to the copyright in any such original content, and any works derived
therefrom, subject to the prior rights of third party licensors.
(b) N2K agrees that the Programming Service shall remain the sole and
exclusive property of WBGO.
7. OWNERSHIP OF TRADEMARKS
N2K hereby acknowledges that WBGO is the sole owner of the
Marks and of the
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respective goodwill and reputation symbolized thereby, and that nothing
contained herein shall constitute an assignment of the Marks or grant to N2K any
right, title or interest therein, except the right to use the Marks in
accordance with the terms of this Agreement.
8. TERM
(a) The term of the agreement shall be effective upon the execution of
the agreement and continue for a period extending two (2) years from the launch
date of the WEB SITE. The agreement shall automatically renew for additional one
(1) year terms unless either party gives written notice of termination no less
than sixty (60) days prior to the expiration of the current term or any
subsequent renewal term.
(b) Either party may terminate this Agreement at any time upon sixty
(60) days written notice of material breach of the other party, unless the
breaching party remedies the breach within such notice period.
(c) This agreement shall terminate automatically in the event that (i)
WBGO no longer offers its Programming Service or (ii) N2K no longer operates JCS
or an comparable on-line program service.
9. MARKETING & RELATED REQUIREMENTS
a) WBGO agrees that during the Term hereof, it will:
(i) provide and maintain, at WBGO's sole expense, a hyperlink
between WBGO's own web site (the "WBGO site") and the WEB SITE in order to
enable N2K to retransmit the Programming Service with such link, prominently
displayed on the home page and/or each section featured on the WBGO site.
(ii) provide, at no cost to N2K, editorial and/or advertising
space in WBGO's monthly program guide for the promotion of Jazz Central Station.
N2K will create the text and/or artwork associated with such space each month,
at its sole expense.
(iii) use its best efforts to provide N2K with the opportunity
to insert promotional materials, such as flyers or cards, in WBGO's regular
mailer. N2K will bear the expense of such inserts or, if applicable, reimburse
WBGO its actual expense in providing this service to N2K. All inserts must
contain the WBGO logo or written reference to WBGO.
(b) N2K agrees that during the Term hereof it will:
(i) provide marketing and promotion of the WBGO Retransmission
through its various music related web sites and third party media, including
such publications as JazzTimes and Jazz Educators Journal and through on-line
advertising opportunities.
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(ii) prominently display the WBGO logo on the splash page
and/or home page of JCS.
(iii) maintain JCS as a site on the World Wide Web that offers
a comparable level of performance and functionality as offered on the date of
execution of this Agreement and, to the extent commercially reasonable, will
continue to integrate common features of functionality as comparable websites
and will provide the appropriate facilities to reasonably accommodate the then
current user demand for the Retransmissions.
10. ADVERTISING
(a) N2K shall own all right, title and interest in and to the
advertising and promotion spaces within the WEB SITE and shall have the
exclusive right to sell promotions, advertisements, links, pointers or similar
services or rights on or through the WEB SITE (the "Advertising Inventory"),
subject to the approval of WBGO.
(b) N2K shall pay WBGO [****] percent of all Net Advertising
Revenues. "Net Advertising Revenues" shall mean the Advertising Revenues
remaining, after first deducting any applicable sales and/or agency fees.
"Advertising Revenues" shall mean the amounts collected by N2K derived from the
purchase of Advertising Inventory, less N2K's administration fee of [****]
percent of gross advertising revenues.
(c) WBGO shall have the right to use up to [****] percent of
the total advertising inventory of the WEB SITE, at their sole discretion and at
no cost for uses related to the promotion of WBGO, provided that suitable
artwork is supplied to N2K for appropriate placement.
(d) WBGO and N2K shall each have the right to use up to [****]
percent of the unsold and otherwise unallocated Advertising Inventory, at no
cost and at their sole discretion, respectively. Prior to any such use by WBGO,
WBGO shall confirm with N2K that the particular WEB SITE advertising space has
not already been sold for the time period in question. N2K will use its best
efforts to notify WBGO in a reasonable and timely manner, of the unallocated
Advertising Inventory.
11. USAGE DATA
(a) N2K will own any and all of its user information and usage
data, including but not limited to specific user information obtained by N2K
from computer system servers operated by or for N2K by third parties or
otherwise from the operation of JCS (collectively, the "N2K Usage Data").
(b) N2K agrees to pursue reasonable efforts to collect and
provide WBGO on a reasonable frequency, subject to N2K's technical
capabilities, N2K Usage Data in the
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following forms: (i) the number of user requests for the Retransmission; (ii)
the number of "clicks" on the WBGO logo on the JCS "splash" page; and (iii) the
number of clicks on the link to xxxx.xxx from the JCS/WBGO (WEB SITE) page.
12. FORCE MAJEURE
Neither party shall be liable to the other or deemed to be in breach
hereunder for non-performance or delays due to fire, boycott, lock-out, war,
labor or civil disturbance, riots, acts of God, insurrection, government orders
or regulations, or any other cause beyond the reasonable control of the party
delayed or prevented from performing.
13. RELATIONSHIP OF THE PARTIES
This agreement does not constitute a partnership, joint venture,
agency, employee/employer, or any other similar relationship between the parties
hereto. Further, neither party is authorized to waive any right, or assume or
create any contract or obligation of any kind in the name of, or on behalf of,
the other or to make any statement that it has the authority to do so.
14. WARRANTY AND INDEMNITY
(a) Subject to N2K obtaining licenses required pursuant to
Section 2 above, WBGO warrants and represents that the Retransmission will in no
way violate any existing copyright, either in whole or in part, that use by N2K,
as provided herein, will not infringe upon the rights of any third party and
that the WBGO Programming Service contains no matter which will be libelous.
(b) Each party represents and warrants to the other that : (i)
such party has the full corporate right, power and authority to enter into this
Agreement, to grant the licenses granted hereunder and to perform the acts
required of it hereunder; (ii) the execution of this Agreement by such party ,
and the performance by such party of its obligations and duties hereunder, do
not and will not violate any agreement to which such party is a party or by
which it is otherwise bound; (iii) when executed and delivered by such party,
this Agreement will constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms; and (iv)
such party acknowledges that the other party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
(c) Any and all other representations and warranties of any
kind whatsoever, express or implied, regarding the operation of the WEB SITE, or
either party's performance under the Agreement, including representations and
warranties as to the operation, functionality, lack of interruption or resources
of the WEB SITE, are expressly excluded. Without limiting the foregoing, each
party disclaims any implied warranties of merchantability and fitness for a
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particular purpose. Except for the indemnification obligations established by
Sections 14(a) and (b), neither party shall be liable for any consequential,
incidental, indirect, economic, special, exemplary or punitive damages incurred
by the other party, such as, but not limited to, loss of revenue or anticipated
profits or lost business, even if the other party has advised that such damages
are possible as a result of any breach of warranty.
(d) Subject to the limitations set forth in 14(c) above, each
party hereto shall defend and indemnify the other from all damages, costs and
expenses including attorney's fees, as well as any claim, suit, loss or damage
as a result of a breach of the above warranties and representations.
15. NOTICES
All notices, approvals, or documents which either party hereto is
required to deliver to the other party shall be in writing and shall be
personally delivered or telegraphed or faxed (with telephonic confirmation of
receipt) or mailed by Express Mail or comparable overnight courier, to such
party at the address set forth at the top of this agreement. A copy of notices
to N2K shall simultaneously be sent to Xxxxxx X. Xxxxxx, Esq., 000 Xxxx 00xx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, X.X. 00000.
16. MISCELLANEOUS
(a) This agreement constitutes and contains the entire
agreement between the parties with respect to the subject matter hereof and
supersede any prior contemporaneous agreements, oral or in writing. The
paragraph headings used in this Agreement are for convenience only and shall
have no legal effect whatsoever.
(b) This agreement may not be changed, modified, amended or
supplemented, except in writing signed by a duly authorized representative of
each party.
(c) No waiver by either party of any term or condition of this
agreement, whether by conduct or otherwise, in any one or more instance, shall
be deemed a further or continuing waiver of any such term or condition, or a
waiver of any other term or condition, or a waiver of any other term or
condition in this agreement.
(d) If any provision of this agreement is found to be invalid
by any court, (pursuant to Section 16(g) below) having competent jurisdiction,
the invalidity of such provision shall not effect the validity of the remaining
provisions hereof.
(e) Each party represents that all necessary approvals and
consents have been obtained for entry into this agreement. Each of the parties
acknowledges and agrees that the other has not made any representations,
warranties or agreements of any kind, except as may be expressly set forth
herein.
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(f) This agreement is binding upon and shall inure to the
benefit of the parties, their successors, trustees and assigns.
(g) Regardless of the place of physical execution, this
agreement shall be governed by and construed in accordance with the laws of the
State of New York, as applicable to agreements executed and performed within
that state, and any disputes or controversies arising hereunder shall be subject
to the jurisdiction of Courts of the State of New York or of the U.S. Federal
District Court for the Southern District of New York. Any process in any action
or proceeding arising under or relating to this Agreement may, among other
methods, be served by delivering or mailing the same by registered or certified
mail, directed to either party at the address first written above or such other
address as you designate by notice to the other party as provided herein. Any
such delivery or mail service shall be deemed to have the same force and effect
as personal service within the State of New York.
(h) This agreement may be executed in any number of separate
counterparts, each of which shall be deemed to be an original, but which
together shall continue one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this agreement on the day and year
first above written.
XXXX X0X Inc.
By /s/Xxxxxx Xxxxxx 6/18/97 By /s/ X.X. Xxxxx
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Xxxxxx Xxxxxx X.X. Xxxxx
General Manager Sr. VP & General Manager
N2K Entertainment
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