Exhibit 10.3
MUSICGIANTS, INC.
VIDEO LICENSING AGREEMENT
______________________________________________
THIS VIDEO LICENSING AGREEMENT (this "AGREEMENT"), dated as of July 20,
2006 (the "EFFECTIVE DATE"), between NuTech Digital, Inc., a California
corporation, NuTech Digital, Inc. X.X. Xxx 000000 Xxxxxx, Xxxxxxxxxx 00000-0000
("NUTECH" or "PROVIDER") and MusicGiants, Inc., a Nevada corporation, with a
principal place of business at 000 Xxxxxxx Xxx, Xxxxx 000, Xxxxxxx Xxxxxxx, XX
00000 ("MUSICGIANTS" or "COMPANY") sets forth the rights, obligations, terms and
conditions for the sale and delivery of Provider's video content by the Company
to the Company's end-users, dealers, and affiliates.
RECITALS
A. THE COMPANY'S AUDIO & VIDEO DISTRIBUTION NETWORK. The Company sells
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audio and video content through its dealer base and through its online stores.
The Company's dealer base is comprised primarily of custom electronic design and
installation professionals. The Company's online stores include its browser
based store located at xxx.xxxxxxxxxxx.xxx, its online stores embedded in
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Microsoft's Windows Media Player 10 and 11, its store built into Microsoft's XP
Media Center Edition computer operating system, its online stores built into
numerous consumer electronics and computer manufacturer's audio and video
equipment ("MG MEDIASTORE"), and the online stores that the Company develops in
the future. All of the Company's distribution methods shall collectively be
hereinafter referred to as the "NETWORK".
B. PROVIDER'S SUPPLY OF VIDEO FOR DISTRIBUTION THROUGH THE NETWORK.
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Provider will supply the video content described in EXHIBIT A (hereinafter
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collectively referred to as the "TITLES", and individually as a "TITLE"), in
accordance with the terms below, for download (or preloading) and distribution
through the Network.
DEFINITIONS
1. DEFINITIONS.
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(a) "CLIP" means an up to thirty (30) second sample of a Title that is
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offered for sale hereunder.
(b) "TITLE" means the master audio and video recordings described on
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Exhibit A hereto.
(c) "END USER" means a purchaser of a Title from Company via the Network.
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(d) "FORMATTED FILE" means a file containing all elements (except for
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digital rights management protection) required to create a Title that is
formatted and delivered in the manner set forth on Exhibit B hereto, or as the
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parties may otherwise agree.
(e) "NETWORK" means the Company's browser based store located at
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xxx.xxxxxxxxxxx.xxx, its online stores embedded in Microsoft's Windows Media
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Player 10 and 11, its store built into Microsoft's XP Media Center Edition
computer operating system, its online stores built into numerous consumer
electronics and computer manufacturer's audio and video equipment ("MG
MEDIASTORE"), and any other online stores that the Company develops in the
future.
(f) "OTHER MATERIALS" means Clips, artwork, graphic images (e.g., cover
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artwork), artists' names, and other information or materials relating to a Title
that are provided by or on behalf of NUTECH for Company's use in accordance with
the terms and conditions hereunder.
(g) "PERSONAL COMPUTER" means a traditional personal computer designed for
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an individual user (i.e. a laptop or desktop computer) including Microsoft
Windows-based media servers and other non-Windows based media capable devices
that comply with the Security Solution requirements.
(h) "SECURITY SOLUTION" means the digital rights management and content
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protection system for Titles, as described on Exhibit C hereto (which may be
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modified pursuant to the parties' agreement).
(i) "TERRITORY" means the World; provided, however that in the event that
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NuTech does not control the exploitation rights to a particular Title for the
World as identified by NuTech to Company, then the Territory with respect to
such Title shall be limited to the geographic region(s) so identified by NuTech.
(j) "COMPANY'S SERVERS" means computer servers that at all times are
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covered by agreements between Company and specified third parties that are
approved by NuTech in writing. NuTech hereby approves VitalStream, Inc., and
RedSwoosh, Inc.
AGREEMENT
2. COMPANY'S RIGHTS AND APPOINTMENT.
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(a) Subject to all the terms and conditions herein, Provider hereby
appoints Company as a non-exclusive reseller of Titles to End Users located in
the Territory via the Network, and authorizes Company on a non-exclusive,
non-assignable, non-transferable basis in the Territory to:
(i) convert the Titles into a format for sale and delivery, and
allow End Users to purchase and then digitally download Titles to
Personal Computers, or other pre-approved devices;
(ii) offer Clips delivered by Company to End Users, on a
promotional basis on the Network, by streaming such Clips to End
Users from the Network;
(iii) display Other Materials to promote sales of Titles (a) on
the Network or (b) in other promotional communications to End
Users who have consented to such receipt, in each case, in at
least the same size and prominence as all other similar content
in each such location or communication;
(iv) allow End Users to download from the Network front-cover box
artwork relating to the Title for display on the End User's
Personal Computer when the Title is played, subject to any
restrictions or limitations that NuTech provides Company in
writing; and
(v) sell Titles as: (a) individual sound and video recordings on
a stand alone basis (unless otherwise instructed by NuTech) or
(b) a combination of sound and video recordings which is
identical in content, sequence and all other respects to a
"Video" (as such term is commonly understood in the industry)
then-currently being made commercially available by NuTech in
physical form.
(b) NuTech hereby grants to the Company a worldwide license to use,
publish, reproduce, broadcast, exhibit and display NuTech's name, trademarks,
service marks, trade names and names of the Titles and excerpts of the Titles
for use in marketing and promoting the Network, the Company's relationship with
NuTech created hereunder, and the Titles.
(c) Other than technical formatting changes for Titles that are reasonably
necessary for successful creation of an authorized Title or Clip, Company will
not edit, change or alter in any way any of the Titles or Other Materials
without NuTech's prior written consent.
(d) Without NuTech's prior written consent, Company may not take any
action, directly or indirectly, so as to imply an artist or NuTech endorsement
or artist or NuTech's commercial tie-in of any product or service, including
without limitation, the Network. Company shall comply with any usage guidelines
pertaining to the Titles or Other Materials that are provided to Company by or
on behalf of NuTech from time to time, including without limitation those
guidelines on Exhibit C hereto.
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(e) All rights not expressly granted to Company are expressly reserved to
NuTech. For the avoidance of doubt, NuTech is not restricted from sales (either
its own or via third parties) of Titles in the Territory by any means, medium or
method including, but not limited to those which may be deemed competitive with
Company.
(f) The Network shall not contain, and shall not frame, link to or
otherwise endorse any website that contains content or engages in activities
that (i) is or are unlawful, harmful, threatening, defamatory, obscene,
harassing or discriminatory; (ii) violate(s) or infringe(s) the rights of any
third party (including intellectual property, name and likeness and
privacy/publicity rights); (iii) depict(s) sexually explicit images, (iv)
promote(s) violence, discrimination, illegal activities, or alcohol or tobacco
products; and (v) is or are objectionable to NuTech based upon reasonable
grounds that NuTech may notify Company from time to time.
3. NUTECH'S RIGHTS AND OBLIGATIONS.
(a) NuTech shall use commercially reasonable efforts to deliver Titles to
Company in a timely manner. NuTech shall provide Titles, Other Materials and any
copyright notices in the manner set forth on Exhibit B hereto, or as the parties
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may otherwise agree. NuTech's content shall be encoded in a virtually
uncompressed format mutually agreed upon by the parties. NuTech hereby approves
Company's use of the Windows Media lossless audio codec and the Windows Media
Video-HD codec. NuTech shall deliver box art to Company in at least 800 x 800 by
300 dpi. NuTech shall deliver Titles to Company in DVD data form.
(b) NuTech may terminate Company's rights to use any Titles and/or all
associated Other Material at any time by notifying Company in writing. Company
shall cease to offer such materials on a prospective basis within two (2) days
following receipt of notice.
(c) As between NuTech and Company, NuTech shall be responsible for paying
all (i) royalties to artists and other persons resulting from Company's sales of
Titles hereunder, (ii) mechanical royalties payable solely in respect of the
reproduction of the musical compositions embodied in the Titles sold within the
Territory hereunder, and (iii) synchronization or public performance licenses
with respect to the underlying musical composition, and, (iv) payments that may
be required hereunder pursuant to American Federation of Musicians (AFM) and/or
American Federation of Television and Radio Artists (AFTRA) collective
bargaining agreements applicable to NuTech.
(d) Each party will designate a single contact person to address all
technical, marketing or other business issues (other than accounting as
contemplated by Exhibit C hereto) relating to this Agreement.
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4. MUSICGIANTS' OBLIGATIONS.
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(a) Company will comply with all applicable laws, statutes, rules,
regulations, policies and reputable industry practice ("LAWS") in its
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performance of its obligations and exercise of its rights under this Agreement
and the operation of its business relating thereto. Company shall require all
End Users, prior to delivery of any Title or Other Materials hereunder, to agree
to "Terms of Use" that (i) govern how their (x) Personal Computer may transmit a
Title to a portable device or (y) Personal Computer or portable device may play
a Title, (ii) require End Users to comply with all applicable Laws in their use
of the Title and to protect NuTech's rights therein, and (iii) state that End
Users are not granted any commercial, sale, resale, reproduction, distribution
or promotional use rights for the Title, including any rights for uses that
require a synchronization or public performance license with respect to the
underlying musical composition. Company shall provide NuTech with its End User
"Terms of Use" agreement upon request and shall allow NuTech to revise
provisions pertaining to NuTech's rights and interests. Company shall, on a
regular basis, monitor End User activity to ensure compliance with such "Terms
of Use."
(b) Except as expressly assumed by NuTech hereunder, Company shall pay all
costs relating to the exercise of its rights under this Agreement, including
without limitation: (i) all promotional activities (including the creation,
display and use of Clips); (ii) all activities after Company receives any NuTech
Content, including hosting, and serving Titles; and (iii) application of the
Security Solution to the NuTech Titles.
(c) Company shall collect, bear and pay any and all taxes, duties and
customs of any kind, however designated, levied or based in any way anywhere in
the Territory upon the sale or resale of any products or services by Company,
including, for the avoidance of doubt and without limitation, all sales, use,
excise, purchase, value added or similar taxes (other than income taxes payable
by NuTech on monies earned by NuTech hereunder). Company shall execute any
documents NuTech may deem necessary or desirable to evidence Company's liability
for such taxes. If any claim is made against NuTech for such taxes, Company
shall promptly remit to NuTech such sums together with any penalties and
interest assessed.
(d) Company shall not release any Titles to any End User prior to the
release date designated by NuTech.
5. FINANCIAL TERMS.
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(a) Provider's Compensation. For each successful download of a Title
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purchased by a Network customer ("Successful Purchase"), MusicGiants shall pay
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NuTech the wholesale price set by NuTech in its sole discretion for such Title,
which such price may be modified by NuTech in its sole discretion at any time,
by sending an email to MusicGiants at Xxxx@xxxxxxxxxxx.xxx, or a written notice
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to: Xxxx Xxxxxxxx, President, MusicGiants, Inc., 000 Xxxxxxx Xxx, Xxxxx 000,
Xxxxxxx Xxxxxxx, Xxxxxx 00000 (or any later address provided by Company pursuant
to the notice provisions herein. The wholesale price modification shall take
effect fourteen days from the date such notice is received by Company.
(b) The current wholesale price shall be $1.49 for individual tracks and
$9.99 for complete DVDs.
(c) MusicGiants shall establish the retail price points of Titles in its
sole discretion. For the avoidance of doubt, subject to the right of NuTech to
determine wholesale pricing, Company is free to advertise, promote, and offer
for sale any Title hereunder at any retail price it determines.
(d) Within ten (10) days after each calendar month after the Effective
Date, Company will furnish to NuTech, together with the related payments,
statements showing: (i) the total number of Successful Purchases in the
applicable month and year-to-date, identified by each individual Title,
including by using a code or other designation assigned by NuTech (e.g., ISRC or
UPC) and the retail and wholesale price thereof, and (ii) any additional
information that NuTech requires to fulfill any third-party reporting or
auditing obligations.
All payments in Section 5 shall be in U.S. dollars and made by check,
wire or ACH. Payments made by check can be sent via regular mail to NuTech
Digital, Inc. X.X. Xxx 000000 Xxxxxx, Xxxxxxxxxx 00000-0000 Payments made
via wire or ACH should be sent to :
NuTech Digital, Inc.
US Bank
00000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
818/817-7229
818/789-3041
ABA Number:XXXXXXXXX
Account Number:XXXXXXXXXXXX
(e) Any past due amounts will bear interest daily until paid at a rate of
interest equal to the lesser of (i) the prime rate as published in The Wall
Street Journal on the payment due date plus two (2) percent or (ii) the maximum
rate of interest allowed by applicable law.
(f) Company will maintain and preserve in its principal place of business,
during the Term and for at least one (1) year thereafter, complete and accurate
records relating to its obligations hereunder. NuTech may select an independent
firm to audit such records once a year (or more often, if justified under the
circumstances) during reasonable business hours and upon reasonable notice.
NuTech shall pay the cost of such audit, unless it reveals an underpayment of
10% or more of any payment obligations, in which case Company shall, without
limitation of other rights and remedies, promptly pay such underpayment,
together with specified interest thereon, and reimburse NuTech for all
reasonable costs of the audit, including without limitation, accountants' fees
and attorneys' fees.
6. INTELLECTUAL PROPERTY RIGHTS.
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The parties acknowledge and agree that any proprietary property, including
any copyrights, trademarks, service marks, patents or other intellectual
property, that has been or will be provided by either party to the other party
shall remain the sole and exclusive property of the providing party. Each of the
parties will take such action (including signature and assistance in preparation
of documents or the giving of testimony) as may be requested by the providing
party to confirm such providing party's intellectual property rights and
ownership of any intellectual property.
7. DISCLAIMERS.
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NuTech acknowledges and agrees that as with any on-line interaction and
electronic communication, there is an inherent risk involved in transmitting any
information by means of the Internet. The Company does not and cannot guarantee
that its system is free from hackers or viruses or that content provided by
providers to the Network will not be stolen or otherwise surreptitiously
obtained. Except for claims, damages, losses or expenses arising out of or
resulting from the Company's gross negligence in complying with the terms,
conditions, procedures or specifications of DRM or such other security
technology selected and implemented by the Company or from the Company's breach
of this Agreement, the Company specifically disclaims, and is not responsible or
liable for (A) any claims, damages, losses or expenses arising out of or
resulting from any conversion, piracy, infections or contamination ofNuTech's
Titles; (B) any claims, damages, losses or expenses arising out of or resulting
from delays, inaccuracies, errors, or omissions in theNetwork or with respect to
any Titles contained on the Network; (C) any claims, damages, losses or expenses
arising out of or resulting from any claim brought by a third party of
infringement of any intellectual property right of any kind or nature.
8. PROVIDER WARRANTY AND INDEMNIFICATION.
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NuTech represents and warrants thatNuTech has all necessary right, title
and interest in and to, or alternatively, has the right to license, distribute,
and sublicense, any Titles that NuTech supplies to the Network, the Company or
the Network's customers.NuTech represents, warrants and covenants that any
metadata provided by NuTech for the Titles will be complete and accurate and
will conform to all of the Company's parameters for metadata and Content
Specifications. NuTech agrees to hold harmless the Company for any claims,
damages, losses or expenses (including reasonable attorneys fees) arising out of
or resulting from NuTech's breach of this Section. In addition, NuTech agrees to
hold harmless the Company for any claims, damages, losses or expenses arising
out of or resulting from Titles supplied by NuTech to the Company, the Network
or the Network's customers, or any inaccuracy, misstatement, controversy,
violation of law, or governmental investigation related to Titles supplied by
NuTech to the Company, the Network or the Network's customers.
9. REPRESENTATIONS AND WARRANTIES.
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Each party represents and warrants that it has the right, power and
authority to enter into this Agreement and to fully perform its obligations
hereunder.
10. INDEMNIFICATION.
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(a) NUTECH will defend at its expense, indemnify, and hold harmless
Company and its affiliates and their respective directors, officers, employees,
agents and representatives ("Related Parties") from any loss, liability, damage,
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award, settlement, judgment, fee, cost or expense (including reasonable
attorneys' fees and costs of suit) ("Losses") arising out of or relating to any
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third-party claim, allegation, action, demand, proceeding or suit ("Action")
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against any of them that arises out of or relates to (i) any breach by NuTech of
this Agreement or its warranties, representations, covenants and undertakings
hereunder; or (ii) any claim that Company's use of the Titles or Other Materials
as explicitly authorized by this Agreement infringes the intellectual property
rights of a third party.
(b) Company will defend at its expense, indemnify and hold harmless NuTech
and its affiliates and their respective Related Parties from any Losses arising
out of or relating to any third-party Action against any of them that arises out
of or relates to (i) any breach by Company of this Agreement or its warranties,
representations, covenants and undertakings hereunder; (ii) Company's operation
of its business, including, but not limited to that such operations shall not
violate or infringe upon the intellectual property rights of a third party; or
(iii) any claim that Company's use of the Title or Other Materials, other than
as explicitly authorized by this Agreement, infringes the intellectual property
rights of a third party.
(c) The indemnified party will promptly notify the indemnifying party in
writing of any indemnifiable claim and promptly tender its defense to the
indemnifying party. Any delay in such notice will not relieve the indemnifying
party from its obligations to the extent it is not prejudiced thereby. The
indemnified party will cooperate with the indemnifying party at the indemnifying
party's expense. The indemnifying party may not settle any indemnified claim in
a manner that adversely affects the indemnified party without its consent (which
shall not be unreasonably withheld or delayed). The indemnified party may
participate in its defense with counsel of its own choice at its own expense.
(d) Except with respect to Sections 9 and 10, neither party will be liable
to the other party for special, indirect, consequential, exemplary, punitive or
incidental damages (including lost profits or goodwill, business interruption
and the like) relating to this Agreement, even if it has been advised of the
possibility of such damages. in no event will Nutech's total liability for a
dispute relating to this Agreement exceed the wholesale proceeds paid or payable
to Nutech by Company under this Agreement, other than claims brought by third
parties for alleged infringement.
11. TERM AND TERMINATION. The term of this Agreement will begin on the
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Effective Date and will end on the third anniversary thereof ("Term"). This
Agreement will automatically renew on each anniversary date of the Effective
Date unless previously terminated in accordance with this Section.
(a) NuTech may terminate this Agreement, effective upon written notice to
Company, if Company (i) fails to comply with the payment obligations and fails
to cure same within ten (10) days after written notice.
(b) Each party may terminate this Agreement, effective upon written notice
to the other party, if the other party: (i) materially breaches any of the
provisions of this Agreement and fails to cure same within thirty (30) days
after written notice; or (ii) is unable to pay its debts when due, makes any
assignment for the benefit of creditors, files any petition under the bankruptcy
or insolvency laws, has a receiver or trustee to be appointed for its business
or property not removed within 60 days, or is adjudicated bankrupt or insolvent.
(c) Upon any expiration or termination of this Agreement, (i) Company shall
immediately cease using, distributing, reproducing, transmitting, displaying,
selling or offering to sell Titles and hosting, displaying or using Other
Materials and shall, at NuTech's option, promptly destroy or return all
materials pertaining to Titles or Other Materials, including all copies thereof,
that are in Company's possession or subject to its control.
(d) The Company may terminate this Agreement immediately upon the Company's
determination that the Titles or Provider may expose the Company to liability or
may devalue the goodwill or reputation of the Company or the Company's other
content providers. In addition, the Company reserves the right to immediately
withdraw any Title from promotion, download or distribution for any reason in
its absolute discretion or to impose limitations related to the same.
(e) Sections 9 and 10 shall survive the termination of this Agreement and
remain in force.
12. ENTIRE AGREEMENT. The foregoing, including, without limitation, the terms
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defined for purposes of the Agreement in the recitals to this Agreement, along
with all written and mutually executed attachments, exhibits and appendixes, and
any confidentiality agreement entered into between the parties, constitutes the
entire agreement between the parties on the subject matters hereof and thereof,
and all oral or other written communications that have taken place between the
parties on this subject are superseded and replaced by the terms stated herein.
This Agreement may only be modified, amended, added to or deleted from by a
writing signed by both parties hereto.
13. LIMITATION OF LIABILITY AND REMEDIES.
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(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
THE COMPANY OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR FOR
BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE COMPANY'S
PERFORMANCE HEREUNDER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
14. CONFIDENTIALITY AND SECURITY.
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(a) Company shall use reasonable best efforts to prevent any unauthorized
copying of the NuTech Titles, and Other Materials, including without limitation,
by implementation of the Security Solution. If Company becomes aware of any
infringement or misuse of Titles or Other Materials, it shall promptly notify
NuTech and fully cooperate with NuTech to remedy same, at Company's expense. An
End User may only download Titles when such End User is logged onto his or her
account, using a unique user name and password. Company agrees that any digital
computer file copy of Titles or Other Materials shall (i) reside only on a
network server, workstation or equivalent device owned or controlled by Company
and (ii) be encrypted. Company shall restrict access to all physical or tangible
copies of Titles or Other Materials solely to essential personnel who are
informed of and accept the terms of this Agreement and shall store such items or
any hardware or media embodying them in a secure location. If any security
breaches occur in connection with this Agreement, the parties shall promptly
consult with each other and all applicable third parties and shall cooperate in
all appropriate remedial actions. If a security breach that is system-wide,
material or otherwise adverse to NuTech occurs, NuTech may suspend Company's
rights under Section 2(a) until cure is affected.
(b) Each party shall not disclose any non-public, confidential or
proprietary information of the other party (including the terms of this
Agreement and any confidential information concerning the other party's
business, finances, plans, customers, technology and products) that it learns in
connection with this Agreement ("Confidential Information") to anyone other than
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its employees (or professional advisors bound by confidentiality obligations)
who need to know same to perform hereunder or as may be necessary to support
third party royalty or audit obligations. Neither party shall use the other
party's Confidential Information, except as required to perform hereunder.
Confidential Information shall not include any information which (i) is or
becomes publicly known other than from a breach of this Agreement, (ii) is
independently developed or obtained by the receiving party from another
legitimate source; or (iii) is required to be disclosed by law, regulation,
court order, legal process, or rules of any nationally recognized stock
exchange, provided that the receiving party shall promptly inform the disclosing
party of any such requirement and cooperate with any attempt to procure a
protective order or similar treatment. Neither party shall make or issue any
public statement or press release regarding this Agreement or its subject matter
without the prior written approval of the other party.
15. MISCELLANEOUS.
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(a) ASSIGNMENT. MusicGiants may not assign, sublicense, pledge, mortgage or
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otherwise encumber this Agreement (or as applicable, the Titles or Other
Materials), in whole or in part, without the prior written consent of NuTech in
its sole discretion. For the avoidance of doubt, a merger, change of control,
reorganization or stock sale of Company shall not be deemed an "assignment"
requiring such consent, so long as Company is the surviving entity.
(b) SEVERABILITY. If any provision of this Agreement is found to be invalid
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or limited in its force, it will be enforced to the maximum extent of the law
and the remainder of the Agreement will continue in force.
(c) WAIVER. No waiver of any term of this Agreement will be effective
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unless executed in writing by the party charged therewith or will excuse the
performance of any acts other than those specifically referred to therein.
(d) CONFLICT OF PROVISIONS. If a conflict exists between the body of this
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Agreement and any schedule, exhibit, or attachment, the body of the Agreement
will prevail.
(e) PERSONAL JURISDICTION, VENUE AND CHOICE OF LAW. THIS AGREEMENT WILL BE
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DEEMED TO HAVE BEEN MADE IN LOS ANGELES, CALIFORNIA, REGARDLESS OF THE ORDER IN
WHICH THE SIGNATURES OF THE PARTIES WILL BE AFFIXED HERETO. THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA. EACH OF THE PARTIES AGREES THAT ANY AND ALL ACTIONS
AND PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT, SUBJECT TO
SECTION 10(H) HEREOF, WILL BE LITIGATED IN COURTS HAVING SITUS IN LOS ANGELES,
CALIFORNIA. EACH OF THE PARTIES CONSENTS TO THE JURISDICTION OF AND AGREES THAT
VENUE IS EXCLUSIVELY PLACED IN ANY STATE COURT LOCATED WITHIN SAN FRANCISCO,
CALIFORNIA.
(f) AUTHORIZED REPRESENTATIVE. This Agreement and any other document,
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agreement, instrument or amendment hereto or thereto is not valid or in effect
unless executed by an authorized officer of the Company and NuTech.
(g) INDEPENDENT CONTRACTORS. NuTech and Company are independent
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contractors, and shall not be deemed partners, franchisees, agents or joint
venturers of each other. Neither party will have any right or authority to
obligate or bind the other party in any manner whatsoever.
(h) NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement shall confer
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upon any person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, and no person (including End
Users) shall be deemed a third party beneficiary under or by reason of this
Agreement.
(i) COUNTERPARTS. This Agreement may be executed in counterparts, each of
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which shall be deemed an original and both of which together shall constitute
one and the same document.
(j) REMEDIES. The rights and remedies of the parties provided under this
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Agreement are cumulative and in addition to any other rights and remedies of the
parties at law or equity.
(k) HEADINGS. The titles used in this Agreement are for convenience only
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and are not to be considered in construing or interpreting the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective offices thereunto duly authorized.
MUSICGIANTS, INC.: NUTECH DIGITAL, INC.:
/s/ Xxxx Xxxxxxxx /s/ Xxx Xxxxxx
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Authorized Signature Authorized Signature
Xxxx Xxxxxxxx Xxx Xxxxxx
----------------------------- ------------------------------
Printed Name Printed Name
President President
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Title Title
August 24, 2006 August 24, 2006
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Date Date
EXHIBIT A
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TITLES
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Classical
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1 Beethoven Brahms
2 Chopin Beethoven
3 Classic Hour at Emerald Hall
4 Dubussy Xxxxx Xxxxxx
5 Xxxxx Xxxxxx Xxxxx Saint-Seens
6 Xxxxx Xxxxxxx Mozart
7 Highlights of Vienna Symphonies Vol. 1
8 Highlights of Vienna Symphonies Vol. 2
9 Highlights of Vienna Symphonies Vol. 3
10 Hilard Ensemble-di Lasso & Ockeghem
11 Xxxxxx Xxxxxxx
12 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxx signs Famous Xxxxx
14 Mozart Xxxxxxxx
15 Xxxxxxxx Chopin Xxxxxxxx
16 Xxxxxx Xxxxxx
17 Xxxxx Xxxxx meets Xxxxxxx Xxxxxx
Ballet
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1 Tchaikovsky-Swan Lake
Other
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1. D12 Live in Chicago (P/A)
2 Xxx Xxx-Live in Anaheim
3 Old Dirty Bastard
4 RZA
5 Who Wanna Battle?
6 Sailboat Voyage
7 Xxxx Xxxx (Broadcast Version)
8 Xxxx Xxxx (P/A)
9 Kool & The Gang (2 Disc DVD)
10 Xxxxxx Xxxxx-Live in Chicago
EXHIBIT B
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CONTENT SPECIFICATIONS AND INSTRUCTIONS
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CONTENT SPECIFICATIONS AND INSTRUCTIONS
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Recommended Settings for Encoding (To be updated from time to time):
Resolution 1080p
Video bit rate VBR
Audio bit rate VBR Stereo/Multichannel
Combined bit rate 5000 to 20000 kbps
Video Format Windows Media 10 HD
Audio Format Windows Media Audio lossless
Frame Rate 24 or 30 fps depending on the source material
Key Frame Interval 1 Key Frame per 10 seconds
Acceptable Settings:
- Windows Media 8 or Windows Media 9
- Constant Bit Rate or Variable Bit Rate
METADATA PARAMETERS
-------------------
Content Provider Name: __________
Preview Available: (Yes/No)
Availability Start (date/time)
Availability End (date/time)
Content Info
------------
Title __________
Rating (Rating System)
Genre(s) __________
Language __________
Date of first release __________
Actors (If applicable)
Director (If applicable)
Description __________
Key Words __________
Related Content ID(s) __________
Content Identity
----------------
Content ID __________
Group ID __________
Group Name __________
Group Order __________
Content Provider Name __________
Preview Availability
--------------------
Preview Available __________
Preview ID __________
Artwork
-------
Large Graphic ID __________
Small Graphic ID __________
Icon Graphic ID __________
Guide Display
-------------
Availability Start (date/time)
Availability End (date/time)
File Info
---------
Resolution 1080p
Video bit rate kilobits per second
Audio bit rate kilobits per second
Combined bit rate kilobits per second
Video Format Windows Media 10 HD
Audio Format Windows Media Audio Lossless
Frame Rate 24, 25 (PAL) or 30 fps depending
on the source material
Key Frame Rate Frames per Key Frame
Length hours:minutes:seconds
File Size Bytes
Copyright __________
Business Logic
User Licensing Rules __________
RE-INSTALLS: To handle customer support issues (e.g., End Users who upgrade
their operating systems or have hard-drive crashes), customer service agents may
in their reasonable discretion permit one (1) re-install, in the event of a bona
fide hard-drive crash.
SECURITY SOLUTION
-----------------
PHYSICAL SECURITY: The equipment hosted by Company for use with Titles is
located in a physically secure facility, which requires restricted badge access.
The infrastructure (hosts, network equipment, etc.) hosting the NuTech data is
located in a locked cage-type environment. Company's access policy is restricted
to authorized operations personnel. These rooms are monitored through the use of
security cameras.
NETWORK SECURITY: Company employs and will continue to employ industry standard
network security protocols.
HOST SECURITY: Company employs and will continue to employ industry standard
host security protocols.
CRYPTOGRAPHY: All Titles is protected by Windows Media DRM solution, version 9.0
or later.