Exhibit 10.7
XXXXXXXX.XXX/XXXXXXXXXXXXX BOULEVARD
CO-MARKETING PARTNERSHIP AGREEMENT
This is an agreement dated as of July 21, 1999, between
Entertainment Boulevard, Inc., a Nevada corporation located at 0000 Xxx Xxx
Xxxxxx Xxxxx 000, Xxxxxx Xxx Xxx, XX 00000 ("EBLD"), and XxxxxXxx.xxx ("CO"),
a ______________ located at 000 X. Xxxxx Xxxxx, Xxxxx 000/000, Xxxxxxx Xxxxx,
XX 00000.
The parties desire to establish a business relationship with each
other and engage in a promotional partnership and certain marketing
activities as set forth below. 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 CO IDENTITIES ON EBLD SITE. CO hereby grants to EBLD a
non-exclusive, cost-free license (without the right of sublicense) throughout
the Term of this Agreement to use the XxxxxXxx.xxx name and logo and other
proprietary identities of CO (collectively, "CO Xxxx(s)") in connection with
the EBLD multimedia player (the "Player") which is displayed on XxxxxXxx.xxx
(defined below), solely as stated in Exhibit A.
1.2 EBLD IDENTITIES ON CO SITE. EBLD hereby grants a
non-exclusive cost-free license (without the right of sublicense) throughout
the Term of this Agreement to CO to use the EBLD name and logo and other
proprietary identities of EBLD (collectively, "EBLD Xxxx(s)") in connection
with CO's website called "XxxxxXxx.xxx," currently located at
xxxx://xxx.xxxxxxxx.xxx, solely as stated in Exhibit A.
2. CONTENT
2.1 LICENSE OF EBLD CONTENT. EBLD hereby grants a
non-exclusive cost-free license (without the right of sublicense) throughout
the Term of this Agreement to CO to use the certain content owned and/or
controlled by EBLD, as described on Exhibit A (collectively, "EBLD Content")
in connection with XxxxxXxx.xxx, solely as stated on Exhibit A. During the
term of this Agreement, CO will not (a) permit another entity, other than
EBLD, to broadcast streaming content that competes with the content served on
the Co-Branded Page on the Licensee Site, or (b) establish any direct
hypertext links between the Licensee Site and the site of an EBLD competitor.
2.2 CREATION OF CONTENT. Each party will be responsible for
the creation, development and publication of its respective Content. The
parties will consult regularly regarding creation of mutually beneficial
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.
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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 and set all packaging and
pricing for any advertising thereon and to retain all revenue it
receives related thereto. 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 (i) CO shall
have the exclusive right to transact advertising and promotional
programs related to, to retain all advertising inventory and set all
packaging and pricing for any advertising on and to retain all revenue
it receives related to any co-branded pages developed pursuant to this
Agreement; and (ii) EBLD shall have the exclusive right to transact
advertising and promotional programs related to, to retain all
advertising inventory and set all packaging and pricing for any
advertising on and to retain all revenue it receives related to the
Player.
(b) NO INTERSTITIALS. Neither party will transmit any
so-called "interstitial advertising" to users as they link from
XxxxxXxx.xxx to the Player or vice-versa.
(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. CO shall make this customer
information available to EBLD exclusively for EBLD's promotional
and e-commerce purposes. EBLD shall not release this customer data
information to any third party.
(d) BANNER AD DISCOUNT. EBLD agrees to provide CO with
discounted banner ad space on the EBLD site. This ad space is
contemplated to be approximately 120 pixels by 120 pixels. CO will be
offered banner ad space at $10.00 CPM. In addition, EBLD will
promote the launch of XxxxxXxx.xxx on the EBLD home page from
July 15th, 1999 through August 14th, 1999.
4. LINKS TO BUY PRODUCTS AT XXXXXXXX.XXX.
4.1 EBLD desires to offer EBLD site visitors the convenience of
buying products online, by merchandising these products on
the EBLD web site. EBLD will control the design and
placement of the products and associated merchandising
techniques on the EBLD web site, which will be linked to
CO's online catalog. CO will manage all aspects of order
processing and fulfillment for products sold through these
links.
4.2 LINKS ON THE EBLD SITE. EBLD may select one or more products
from the CO catalog to list on the EBLD site. For each
selected product, EBLD may display the title, cover art,
short description, review, or other reference. EBLD will be
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responsible for the content, style, and placement of these
references. EBLD will provide a special link from each
product reference on the EBLD site to the corresponding CO
online catalog entry. Each link will connect directly to a
single item's detail page in the CO online catalog, using a
special link format that CO will give to EBLD. EBLD may add
or delete products from the EBLD site at any time.
4.3 ORDER PROCESSING. CO will process product orders placed by
customers who follow special links from the EBLD site to the
CO site. CO reserve 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 special
links from the EBLD site to the CO site and will send EBLD
reports summarizing this sales activity. To permit accurate
tracking, reporting, and fee accrual, the special links
between the EBLD site and the CO site must be properly
formatted.
4.4 REFERRAL FEES. CO will pay EBLD referral fees on qualified
product sales to third parties. For a product sale to
generate a referral fee, the customer must follow a special
link (in a format specified by CO) from the EBLD site 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 special link
from the EBLD site), even if the customer previously
followed a link from the EBLD site 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."
4.5 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 eight percent
(8%) of the sale price for sales of Qualifying Products. In
addition, CO will pay EBLD a one-time bounty of ten dollars
($10) for each new XxxxxXxx.xxx customer that arrives from
the EBLD sites.
4.6 FEE PAYMENT. CO will pay referral fees on a quarterly basis.
Approximately 45 days following the end of each calendar
quarter, CO will send EBLD a check for the referral fees
earned on Qualifying Products that were shipped during that
quarter, less any taxes withheld. However, if the fees
payable to EBLD 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 until 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.
4.7 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.
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4.8 PROMOTIONS AND INCENTIVES. During the Term of the Agreement,
CO will offer special promotions to EBLD users at least six
(6) times per year. These promotions will be mutually agreed
upon. EBLD will integrate a link to Buy at XxxxxXxx.xxx
within the EBLD sites and in the pop-up video players EBLD
co-brands with third parties. EBLD shall provide links to
CO's Top 10 in music and movies on the home pages of Vidnet
and Screen Clips respectively.
4.9 EXCLUSIVITY. During the term of this Agreement, EBLD will
not (a) permit another entity, other than CO, to sell or
distribute music, movies, and games (in each case whether in
audio, video, electronic or other format) on or in
connection with the EBLD web sites, (b) establish any
direct hypertext links between the EBLD web site and a CO
Competitor. The term "Competitor" as used herein means (a)
any of the entities listed in EXHIBIT B, or (b) any
individual, corporation, corporate division, World Wide Web
or other online site or any other entity or service that
either derives more than ten percent (10%) of its annual
gross revenues from the sale of music or movie products or
is primarily known as a seller of movie and/or music
products (in each case whether in audio, video, electronic
or other format).
5. APPROVALS
5.1 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.
5.2 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.
6. TERM
6.1 TERM. When executed by the parties, this Agreement is
effective as of the date specified above and shall continue for two (2) years
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.
6.2 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 section 4.1 above.
6.3 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.
6.4 SURVIVAL. Sections 2.4, 5.2, 7, and 8 will survive the
termination or expiration of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
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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 (including, without limitation, the
Player) 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 (including, without limitation, the Player) 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.
8. INDEMNIFICATION
8.1 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 (including, without limitation the Player) 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 website (including, without limitation, the Player)
violates any intellectual property rights of any third party, any
allegation that any content on its website (including, without
limitation, the Player) is defamatory or violates any privacy or
publicity rights of any third party, and/or any of its other
obligations under this Agreement.
8.2 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.
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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.
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.
9.8 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 Page 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 Page disclosed to EBLD, its officers, directors,
employees and/or agents shall be treated as confidential.
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ACKNOWLEDGED AND AGREED ACKNOWLEDGED AND AGREED
ENTERTAINMENT BOULEVARD, INC. XXXXXXXX.XXX
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------ --------------------------------
Name: XXXXXXX XXXXX Name: XXXXXXX XXXXXXX
---------------------------- ------------------------------
Title: CEO Title: CEO
--------------------------- -----------------------------
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EXHIBIT A - DESCRIPTION OF LICENSED CONTENT
1. CO-BRANDED VIDNET/XXXXXXXX.XXX POP-UP MUSIC VIDEO PLAYER
EBLD agrees to create and host a pop-up music video player for CO, defined as
a `pop-up' web page which includes embedded music videos, navigation links,
and an advertisement.
CO agrees to link to the Pop-Up Player a) on the music section of the CO web
site (CheckOutMusic), b) on the CO home page, and c) on XxxxxXxx.xxx artist
pages which will contain links to respective videos by mutually agreed upon
artists.
The links will open the co-branded Vidnet/XxxxxXxx.xxx pop-up player, with
streaming content and player pages served by EBLD. The pop-up player will
contain both parties' logos, trademarks, tradenames, service marks, and/or
content as mutually agreed upon. The videos will be available in 28k, 56k,
100k, and 300k transfer rates.
The Pop-Up Player will include one or more play-list based music channels.
Additionally, it will provide a mechanism for users to choose specific music
video clips.
2. CO-BRANDED SCREEN CLIPS/XXXXXXXX.XXX POP-UP MOVIE TRAILER PLAYER
EBLD agrees to create a pop-up music video player for CO, defined as a
`pop-up' web page which includes embedded movie trailers, navigation links,
and an advertisement.
CO agrees to link to the Pop-Up Player a) on the movie section of the CO web
site (CheckOutMovies), and b) on the CO home page.
The links will open the co-branded Screen Clips/XxxxxXxx.xxx pop-up player,
with streaming content and player pages served by EBLD. The pop-up player
will contain both parties' logos, trademarks, tradenames, service marks,
and/or content as mutually agreed upon. The movie trailers will be available
in 28k, 56k, 100k, and 300k transfer rates.
The Pop-Up Player will be in a design to be mutually agreed upon. It may
include one or more play-list based channels. Additionally, it will provide a
mechanism for users to choose specific movie trailers of mutually agreed upon
DVDs and videos for sale on XxxxxXxx.xxx.
EXHIBIT B - LIST OF XXXXXXXX.XXX COMPETITORS
As used in this Agreement, "Competitors" includes (without limitation) the
following entities, their affiliated, successors and spin-offs, and each
person or entity doing business under their respective brand names or any
variation thereof (whether or not co-branded):
