Exhibit 10.24
LICENSE AGREEMENT
This Agreement is dated as of June 7, 1999 ("Agreement") and is entered into
by and between Xxxxx.xxx, 000 Xxxxxx Xx. Xxxxx X000, Xxxxx Xxxx, XX 00000
("Licensee") and Entertainment Boulevard, Inc., 0000 Xxx Xxx Xxxxxx Xxxxx
000, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000 ("EBLD").
1. CONTENT AND RECIPROCAL LINKS
EBLD distributes entertainment-related content, including streaming music
videos through a web site located at xxx.xxxxxx.xxx ("EBLD Site"). EBLD
hereby grants to Licensee a royalty-free, non-exclusive license to distribute
such content from the EBLD Site as is mutually agreed by the parties
("Content") on the Xxxxx.xxx web site, located at xxx.xxxxx.xxx ("Licensee
Site").
EBLD shall produce, host and serve a co-branded pop-up player or pop-up
players within the Licensee Site (hereinafter Collectively referred to as
"Co-Branded Player") for the distribution of the Content. The Co-Branded
Player is defined as a web page or web pages that contain both parties'
logos, trademarks, tradenames, service marks, and/or content as mutually
agreed upon.
Licensee shall include a link to the Co-Branded Player on the Licensee Site
in a mutually agreed upon place for the duration of the Term.
EBLD agrees that the Content shall not be defamatory or knowingly in breach
of any person's rights, including any intellectual property rights, privacy
or any other rights. Licensee shall have the right not to distribute the
Content, or any portion thereof, at any time if in the reasonable opinion of
Licensee any of the above conditions are breached and until EBLD has made the
requisite editorial changes.
Both parties shall have the right to sell and shall use best efforts to sell
advertising and sponsorships on the Co-Branded Player and shall split 50/50
all revenue received in connection therewith less any third party agency fees
or commissions actually paid in connections with such advertising and
sponsorships. Such advertising shall consist of any of the following: banner
ads, corporate sponsorships, audio, video, or audio/video ads which are
broadcast exclusively through the Co-Branded Player, or any other promotional
text, graphic, audio clip or combination of these which generates revenue in
exchange for broadcast over the Co-Branded Player. EBLD shall have the right
to approve all pricing schedules for such advertising. Such approval shall
not be unduly withheld, and EBLD shall respond to all requests for such
approval within three (3) business days. Should advertising generated by
Licensee conflict with advertising generated by EBLD, advertising generated
by EBLD shall take priority, but both parties shall make all possible efforts
to prevent such situation from occurring by informing each other of all
advertising campaigns as they occur.
Each party will account to the other and pay its share of revenue within
fifteen (15) days after the end of each calendar month. Along with such
payment, each party will furnish a written statement reflecting the number of
advertising impressions on, and number of visitors to, the Co-Branded Player
during the applicable month. Any such statement shall be deemed accepted
unless (i) the recipient notifies the sender in writing within eighteen
months (18) from the date of receipt of such statement setting forth specific
objections thereto and (ii) the recipient commences a lawsuit to contest such
statement within two (2) years from the date of receipt of such statement.
EBLD or EBLD's designated representative shall have the right, at Licensee's
usual place of business, during business hours and on reasonable notice to
Licensee (but in no event more than once annually), to examine and copy
(provided EBLD keeps such copies confidential and uses them solely in
connection with EBLD's audit rights hereunder, in any proceeding hereunder,
or in any necessary business disclosures to a third party subject to such
third party's agreement to retain such confidentiality) Licensee's books and
records to confirm the accuracy of any such statements not otherwise deemed
accepted. In the event that such audit reveals a discrepancy in the amounts
owed EBLD from what was actually paid, Licensee shall pay EBLD
the amount of such discrepancy. If such discrepancy is in excess of five
percent (5%) of the amounts actually paid to EBLD, Licensee shall reimburse
EBLD for the cost of such audit.
Conversely, Licensee or Licensee's designated representative shall have the
right, at EBLD's usual place of business, during business hours and on
reasonable notice to EBLD (but in no event more than once annually), to
examine and copy (provided Licensee keeps such copies confidential and uses
them solely in connection with Licensee's audit rights hereunder, in any
proceeding hereunder, or in any necessary business disclosures to a third
party subject to such third party's agreement to retain such confidentiality)
EBLD's books and records to confirm the accuracy of any such statements not
otherwise deemed accepted. In the event that such audit reveals a discrepancy
in the amounts owed Licensee from what was actually paid, EBLD shall pay
Licensee the amount of such discrepancy. If such discrepancy is in excess of
five percent (5%) of the amounts actually paid to Licensee, EBLD shall
reimburse Licensee for the cost of such audit.
EBLD and Licensee agree to explore other, non-Internet means of promoting
their Sites and brands.
2. REPRESENTATIONS AND WARRANTIES.
EBLD represents and warrants that it licenses the rights to the Content and
that it has the authority to enter into this Agreement and to fully perform
all of its obligations hereunder. EBLD represents and warrants that the grant
of rights to the Content herein, does not violate the rights of any third
parties and will adhere to applicable Federal, State and Local law and
regulation in the performance of its obligations hereunder. Licensee
represents and warrants that it has the authority to enter into this
Agreement and to fully perform its obligations hereunder, and that it will
adhere to applicable Federal, State and Local law and regulation in the
performance of such obligations.
3. TRADEMARK OWNERSHIP AND LICENSE.
EBLD and Licensee will retain all right, title and interest in and to their
respective trademarks, service marks and trade names worldwide, subject to
limited cross-licenses necessary to perform this Agreement. Neither party
shall alter the other party's respective trademarks or other intellectual
property without the other party's express written consent. All references to
the other party's intellectual property shall include the appropriate
trademark, copyright or other legal notices, and shall be subject to the
other party's prior written approval.
4. TERM.
This Agreement shall continue for one (1) year from the last date of
execution of this Agreement. The Term shall be automatically renewed for
additional one (1) year increments unless either party notifies the other at
least thirty (30) days prior to the expiration of the then-current Term that
it does not wish to renew the Term of the Agreement.
5. TERMINATION.
Either party may terminate this Agreement if the other party breaches the
Agreement and the breach remains uncured for thirty (30) days (or, if such
breach is not susceptible to cure within thirty (30) days, the breaching
party must initiate steps to cure the breach within said thirty (30) day
period and continue its efforts to cure such breach), unless such breach is
caused by the alteration of a party's trademark or other intellectual
property, or failure to obtain an approval as required in this Agreement, in
which case the breaching party shall have, upon notice, two (2) business days
in which to cure. Either party may terminate this Agreement if the other
party is the subject of a bankruptcy filing which is not dismissed within
sixty (60) days. Either party may terminate this Agreement on thirty (30)
days advance written notice to the other party. This
Agreement shall terminate with no further obligations between the parties
except the confidentiality obligation set out in Paragraph 6 below and the
obligation contained in the next sentence of this Paragraph 5, if either the
Licensee's Site or EBLD Site is removed from the Web and/or ceases operation
for a period of more than two (2) consecutive weeks. Upon any termination,
each party (i) will account to and pay the other party its share of revenues
for all periods prior to the date of termination within thirty (30) days of
termination and (ii) will promptly return to the other party any materials
containing the Content. In addition, Paragraphs 2, 6, 7, 9 and 10 shall
survive termination of this Agreement.
6. CONFIDENTIALITY.
The terms and conditions of this Agreement shall be strictly confidential.
All information about the development of the EBLD Site and the development
and launch of the Co-Branded Player disclosed to Licensee, its officers,
directors, employees and/or agents shall be treated as confidential. All
information about the development of the Licensee Site and the development
and launch of the Co-Branded Player disclosed to EBLD, its officers,
directors, employees and/or agents shall be treated as confidential. Such
confidentiality is of the essence to this Agreement.
7. INDEMNITY.
Each party will indemnify the other, its parent, subsidiary and affiliated
companies, their employees, officers, directors and agents from third party
claims, losses, causes of action, costs (including reasonable attorney's
fees) arising from the breach of any warranty, representation or covenant in
the Agreement.
8. LIMITATION ON WARRANTY.
Neither party makes any warranty regarding the quality of their goods and
services. Neither party makes any warranty that all errors or failures in
their respective sites will be corrected. The parties expressly disclaim all
warranties of merchantability or fitness for a particular purpose. Beyond the
warranties contained in this paragraph, the parties do not warrant that their
sites are error-free or that operation of their sites will be secure or
uninterrupted.
9. LIMITATION ON LIABILITY.
In no event will either party be liable for any representation or warranty
made to any end user or third party by the other party, or any agent of the
other party. In no even will either party be liable for failure of its
network or support services. These limitations shall survive and apply
notwithstanding the validity of the limited remedies provided for in this
agreement. Except for liability for indemnity, neither party shall have
liability for any damages other than direct damages.
10. DISPUTE RESOLUTION.
Disputes about trademarks, service marks, trade names and confidentiality may
be resolved in court. All other disputes arising out of this Agreement shall
be resolved through mediation and then binding arbitration in accordance with
the rules and procedures of the American Arbitration Association, to take
place in the County of Los Angeles, California.
11. GENERAL.
Neither party may assign or otherwise transfer this Agreement without the
other party's prior written consent. The parties hereto are neither partners
nor joint venturers hereunder, and neither party shall have the power or
authority to bind or obligate the other in any way. This Agreement may not be
modified and none of its terms may be waived, except in writing signed by
both parties. This Agreement shall not be binding until fully executed and
delivered to each of the parties hereto. Neither party's failure or delay to
enforce any rights hereunder shall be
considered a waiver of such rights or a modification of this Agreement. This
Agreement shall be governed by and interpreted in accord with the laws of the
State of California applicable to agreements entered into and to be performed
wholly in California. The parties hereby consent to the exclusive
jurisdiction of any State or Federal court empowered to enforce this
Agreement in the State of California, County of Los Angeles, and the parties
waive any objection thereto on the basis of personal jurisdiction or venue.
This Agreement constitutes the entire understanding between the parties with
respect to the subject matter of this Agreement ad supersedes all prior
agreements.
AGREED TO AND ACCEPTED BY:
XXXXX.XXX ENTERTAINMENT BOULEVARD, INC.
By: /s/ Xxxx Sos By: /s/ Xxxxxxx Xxxxx
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Name: Xxxx Sos Name: Xxxxxxx Xxxxx
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Title: Vice President Title: CEO
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Date: 6/3/99 Date: 6/7/99
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