Memorandum of Understanding BETWEEN LIVE CURRENT MEDIA INC. AND BOARD OF CONTROL FOR CRICKET IN INDIA FOR DEVELOPMENT AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
Exhibit
10.1
____________________________________________________________________________________
Memorandum
of Understanding
____________________________________________________________________________________
BETWEEN
LIVE CURRENT MEDIA INC.
AND
BOARD
OF CONTROL FOR CRICKET IN INDIA
FOR
DEVELOPMENT
AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
1
CONTENTS
|
DEVELOPMENT
AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
|
1
|
|
1.
TERMS OF
UNDERSTANDING
|
1
|
|
2. CONFIDENTIALITY
& EXCLUSIVITY
|
6
|
|
3. CONTENT
AND SUPPORT FROM BCCI
|
6
|
|
4. OTHER
CONSIDERATIONS
|
9
|
|
5. FINAL
AGREEMENT
|
10
|
|
SCHEDULE
1
|
10
|
|
SCHEDULE
2
|
10
|
2
This
legally binding Memorandum of Understanding (“MOU”) is entered into on this
16th day
of April 2008.
BETWEEN
|
(1)
|
LIVE CURRENT
MEDIA Inc.,
having its
principal office at Suite 000, 000 Xxxxx Xx., Xxxxxxxxx, XX, XXXXXX, X0X
0X0 (hereinafter referred to as “Live Current Media”,
which expression shall, unless repugnant to the context thereof, mean and
include its successors and assigns) of the FIRST
PART;
|
AND
|
(2)
|
BOARD OF CONTROL FOR CRICKET IN
INDIA, a society registered under the Tamil Nadu Societies
Registration Act, 1860, having its principal office at Brabourne Stadium,
(North Stand), Veer Nariman Road, Churchgate, Mumbai 400020 (hereinafter
referred to as “BCCI”), which expression
shall, unless repugnant to the context thereof, mean and include its
successors and permitted assigns) of the LAST
PART.
|
WHEREAS
|
A.
|
BCCI
is desirous of promoting the game of cricket across India and other parts
of the globe and wishes to operate and maintain an official website for
BCCI.
|
|
B.
|
LIVE
CURRENT MEDIA has approached BCCI and expressed its willingness to fulfil
the aforesaid desires of BCCI of promotion of cricket by building and
operating "The BCCI Website” at its sole risk, costs and
consequences.
|
|
X.
|
XXXX
has agreed to authorise LIVE CURRENT MEDIA to , design, build, operate,
maintain and promote the BCCI Website as the official website of BCCI and
the sole website sanctioned as such by BCCI (hereinafter referred to as
“The BCCI
Website”).
|
|
D.
|
BCCI
has agreed to support LIVE CURRENT MEDIA in operating The BCCI Website in
the manner provided in this MOU.
|
BCCI and
LIVE CURRENT MEDIA are individually referred to as the “Party” and collectively
referred to as the “Parties”.
IT
IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
|
1.
|
TERMS
OF UNDERSTANDING
|
|
1.1.
|
LIVE
CURRENT MEDIA undertakes to design, build, operate, host and
maintain the BCCI Website in accordance with highest industry
standards, using its experience in developing engaging commercially
successful web properties, as well as its cutting-edge knowledge of
emerging Internet technologies and to promote the BCCI Website, all at its
sole risk as to costs and consequences in the manner provided in this MOU
and the Final Agreement to be entered into between LIVE CURRENT MEDIA and
BCCI as provided in Clause 5 of this MOU. Each Party will bare the risks
for the content and materials that they provide to “The BCCI Website” on
the terms set out in this MOU.
|
|
1.2.
|
LIVE
CURRENT MEDIA will provide hosting services in respect of the BCCI Website
in accordance with a service level agreement, which shall contain, inter
alia, minimum levels of technical support and site availability, such
service level agreement to be agreed between the Parties and included in
the Final Agreement.
|
3
|
1.3.
|
LIVE
CURRENT MEDIA will further:
|
|
i)
|
maintain
the BCCI Website;
|
|
ii)
|
develop
and enhance the BCCI Website on an ongoing basis and the Parties shall
cooperate throughout the Term in connection with the
same;
|
|
iii)
|
manage
and coordinate the technical integration of all Internet based
applications and opportunities that are to be included within the BCCI
Website during the Term
|
each in
accordance with the core services to be set out in full in the Final
Agreement.
|
1.4.
|
BCCI
will facilitate and provide support to LIVE CURRENT MEDIA in building,
operating, maintaining and promoting the BCCI Website as outlined in
Clause 3 of this MOU and as otherwise may reasonably be requested by LIVE
CURRENT MEDIA from time to time.
|
|
1.5.
|
LIVE
CURRENT MEDIA will construct a web portal at XXXXXXX.XXX (the "XXXXXXX.XXX Portal") as
'the gateway to Indian Cricket', providing an integrated user experience
between it, the BCCI Website and the IPL Website. This does not
mean that non-Indian cricket content will not be placed on the XXXXXXX.XXX
Portal.
|
|
1.6.
|
LIVE
CURRENT MEDIA shall ensure that there will always be a substantive link to
the BCCI Website on the front page of the Live Current Media’s Xxxxxxx.xxx
website
|
|
1.7.
|
The
BCCI Website will be “powered by xxxxxxx.xxx” and this will be prominantly
displayed on the home page of the BCCI Website. There will
always be a substantive link to the Xxxxxxx.xxx Portal on the home page of
The BCCI Website.
|
|
1.8.
|
BCCI
shall:
|
|
i)
|
appoint
LIVE CURRENT MEDIA to design, build, host, operate, maintain and promote
the BCCI Website;
|
|
ii)
|
grant
LIVE CURRENT MEDIA the exclusive right to designate the BCCI Website as
the “Official Website of BCCI” or such other “official” designation as may
be agreed between the Parties from time to
time;
|
|
iii)
|
grant
to LIVE CURRENT MEDIA(a) the right to use BCCI content on the BCCI Website
(on an exclusive or non-exclusive basis as specified herein) and (b)
the licence set out in Clause 4.1 of this MOU;
and
|
|
iv)
|
promote
the BCCI Website and the Xxxxxxx.xxx Portal and provide LIVE CURRENT MEDIA
with the assistance set out herein
|
In each
case for a period commencing on execution of the Final Agreement and ending on
31 December 2018 (the “Term”)
4
|
1.9.
|
The
Parties agree that the renewal of the Final Agreement for a further term
of 10 years (“Renewal”) will be mutually agreed upon by the Parties with
discussions starting at least 180 days prior to the end of the Term and
subject to the following
conditions:
|
|
i)
|
LIVE
CURRENT MEDIA shall have the right of first and last refusal over the
Renewal to work as follows:
|
|
a)
|
LIVE
CURRENT MEDIA shall have the option to bid on the Renewal, which bid must
be irrevocable.
|
|
b)
|
If
Live current Media bid is not accepted, BCCI shall have the right to
solicit bids from other potential partners.
|
|
c)
|
Before
BCCI accepts any third party bid for the Renewal, LIVE CURRENT MEDIA will
have the right to match such third-party bid and shall be granted the
Renewal if it matches such bid.
|
|
d)
|
Throughout
this process, BCCI shall not reveal any information about the LIVE CURRENT
MEDIA bid in anyway whatsoever
|
|
ii)
|
If
the Parties do not agree on a Renewal for Live Current Media then the
following will occur:
|
|
a)
|
LIVE
CURRENT MEDIA will take ownership over the entire customer database as
built up on the BCCI Website over the TERM of the
agreement
|
|
b)
|
BCCI
shall pay LIVE CURRENT MEDIA 1.5 times the content production costs for
the BCCI Website that LIVE CURRENT MEDIA incurred during the original Term
of the Final Agreement (as specified in the financial statements and
agreed by the Parties)
|
|
c)
|
There
will be a 12 month transition period to the third party provider to ensure
the BCCI Website continues to function, with Live Current Media offering
all reasonable cooperation during this transition period to BCCI and such
third party provider. BCCI shall pay all pre-agreed costs
incurred by LIVE CURRENT MEDIA during this transition
period
|
|
d)
|
LIVE
CURRENT MEDIA will retain a non-exclusive right to make available on the
Internet the video and photo archives of the BCCI matches that occurred
during the Term, subject to the parties agreeing a term and a fair price
for the grant of these non-exclusive
rights.
|
|
1.10.
|
In
consideration of the appointment of LIVE CURRENT MEDIA and the rights
granted to LIVE CURRENT MEDIA under this MOU and the Final Agreement, LIVE CURRENT MEDIA
will pay BCCI a fee amounting to
50% of all Revenues (as defined below) generated from the BCCI Website per
annum. Provided however, LIVE CURRENT MEDIA shall ensure that
the minimum fee paid to BCCI for each year of the BCCI Website shall be as
set out in the table below (each a “Minimum Annual Fee”). To
avoid any confusion, the payment made will be the greater of (i) the
Minimum Annual Fee (as set out below) and (ii) 50% of the Revenues for
that year ("Fee").
|
5
|
Minimum
Annual Fee to
|
|
|
BCCI
($ 000s)
|
|
|
Year
1 (2008)
|
US$ 2,500
|
|
Year
2 (2009)
|
US$ 3,000
|
|
Year
3 (2010)
|
US$ 3,000
|
|
Year
4 (2011)
|
US$ 3,000
|
|
Year
5 (2012)
|
US$ 3,000
|
|
Year
6 (2013)
|
US$ 3,000
|
|
Year
7 (2014)
|
US$ 3,000
|
|
Year
8 (2015)
|
US$ 3,000
|
|
Year
9 (2016)
|
US$ 3,000
|
|
Year
10 (2017)
|
US$ 3,500
|
|
Total
|
US$ 30,000
|
For the
purposes of this MOU:
“Revenues” shall include all
revenues generated from the BCCI Website and from any BCCI content, including
Merchandise Revenues (as defined below) but excluding for the avoidance of doubt
revenues generated from BCCI match ticket sales even where the website selling
tickets is accessed via a link on the BCCI Website, which revenues accrue
exclusively to BCCI and its official ticket partners. LIVE CURRENT
MEDIA may however negotiate an affiliate deal with the official ticket partners,
which shall be the subject of a separate agreement.
“Merchandise Revenues” shall
mean the revenues generated from sales of merchandise directly from the BCCI
Website calculated as follows:
Retail
price (excluding cost of delivery and any applicable taxes) minus wholesale
price = Merchandise Revenue.
|
1.11.
|
In
consideration of the rights granted to LIVE CURRENT MEDIA under this MOU
and the Final Agreement, LIVE CURRENT MEDIA
will pay BCCI a fee amounting to
5% of all Revenues (as defined above) generated from Live Current Media’s
Xxxxxxx.xxx website (or any replacement thereof) per annum. (Note: This 5%
is the same 5% referenced in the IPL MOU and is not
additive)
|
|
1.12.
|
All
amounts due under this MOU and the Final Agreement (including without
limitation the Minimum Annual Fee and any Additional Fees) must be paid by
LIVE CURRENT MEDIA free and clear of, and without, deductions based on any
currency control restrictions, import duties, or any sales, use, value
added or other taxes or withholdings of any nature
whatsoever. If LIVE CURRENT MEDIA is required to make any
deduction or withholding in respect of any taxes, imposts, duties or other
such charges in respect of any payment due under the
Final Agreement, LIVE CURRENT MEDIA shall gross up the relevant
amount to ensure that BCCI receives by the relevant payment date the full
cash amount that it would otherwise have been entitled to receive had no
such deduction or withholding been
made.
|
|
1.13.
|
LIVE
CURRENT MEDIA shall have the option to prepay some or all of the Minimum
Annual Fees at anytime during the Term of the agreement. The
amount to be prepaid will be calculated using an annual discount rate of
12.5%. Prepayment will have the following
impacts:
|
|
i)
|
The
required Bank Guarantee as set out in 1.14 will be reduced by the
proportion of the Minimum Annual Fee that has been prepaid. So
for example if 100% of the Minimum Annual Fees are prepaid then the Bank
Guarantee requirement goes away. If 50% of the
Minimum Annual Fees are prepayed then the required amount of
the Bank Guarantee shall be reduced by
50%
|
6
|
ii)
|
The
revenue share as set out in 1.10 will remain however LIVE CURRENT MEDIA
will receive credit for the Minimum Annual Fee repayment. So
for example if LIVE CURRENT MEDIA prepays all of the Minimum Annual Fee
and the Minimum Annual Fee was due to be $3 million in the year then the
revenue share will commence after $6 million in revenues and shall be
50/50 at that point. If for example LIVE CURRENT MEDIA had
prepayed 50% of the Minimum Annual Fees and the Minimum Annual Fee was due
to be $2 million in the year then the first $1 million would be paid to
BCCI, the next $3 million would go to LIVE CURRENT MEDIA and then the
revenue share shall commence at the 50/50 level for all incremental
revenues.
|
|
1.14.
|
It
shall be a condition of this MOU and the Final Agreement that, for the
purpose of securing Live Current Media’s obligation to pay the Minimum
Annual Fee, LIVE CURRENT MEDIA shall deliver to BCCI an irrevocable and
unconditional Bank Guarantee (in a format and from a bank agreed with
BCCI) on a rolling basis to guarantee the Minimum Annual Fee for one year
on an on-going basis in respect of the season and by the due dates set out
below:
|
|
i)
|
Bank
Guarantee for Year 1 in the amount of [the aggregate total Minimum Annual
Fees for Year 1] within 7 days of execution of the Final Agreement and the
Bank Guarantees for subsequent year’s Minimum Annual Fees shall be
delivered to BCCI by no later than 31 December of the year preceding the
year covered by the guarantee (so the Bank Guarantee for Year 2 (2009
season) shall be delivered by no later than 31 December
2008.
|
|
ii)
|
For
the avoidance of doubt, it shall be Live Current Media’s responsibility to
ensure that at any given time in the Term there is a valid, effective and
binding Bank Guarantee in place guaranteeing one year of the Minimum
Annual Fee.
|
|
1.15.
|
Listed
below are the key deliverables:
|
|
i)
|
The
Parties will set up a joint committee (“Facilitation
Committee”), which will comprise of such number of LIVE CURRENT
MEDIA representatives and BCCI representatives as may be agreed upon by
the Parties. The Facilitation Committee will be chaired by a nominee of
the BCCI or such other person as agreed between the Parties. It
is agreed that the chair of the Facilitation Committee shall not have a
casting vote on any issue.
|
|
ii)
|
The
payment schedule set out in clause 1.10 and detailed in Schedule 2 may be
subject to review by the Facilitation Committee from time to time, but it
is accepted that the payment schedule may only be varied with the written
agreement of both Parties.
|
|
iii)
|
All
costs and expenses including travel, stay and other incidental and related
costs/fees payable in relation to the BCCI Website shall be borne by the
party incurring the expenses. Each party shall bear their own respective
costs in relation to the drawing up of the MOU and the Final Agreement
with respect to the BCCI Website.
|
|
iv)
|
LIVE
CURRENT MEDIA shall bear all losses, liabilities, risks, etc. of
whatsoever nature that may be suffered in relation to the BCCI Website and
the LIVE CURRENT MEDIA Portal, save where such losses, liabilities, risks,
etc. (a) relate to content that has been provided to LIVE CURRENT MEDIA by
(or on behalf of) BCCI (unless the content is altered or amended by LIVE
CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for the purpose it
was provided) or (b) are otherwise attributable to any breach by BCCI of
this MOU) or (b) are otherwise attributable to any act or omission of
BCCI. BCCI shall not in any manner be liable, subject to or held
responsible for, and LIVE
CURRENT MEDIA shall indemnify BCCI against, any costs,
expenses, losses, liabilities, risks, suffered by BCCI in relation to
content contained on the BCCI Website, except for content that has been
provided by (or on behalf of) BCCI for use on the same (unless the content
is altered or amended by LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA
other than for the purpose it was provided) and/or in the event of gross
misconduct or otherwise due to any breach of this MOU by
BCCI.
|
7
|
v)
|
BCCI
shall bear all losses, liabilities, risks, etc. of whatsoever nature that
may be suffered in relation to content provided by it or on its behalf to
LIVE CURRENT MEDIA for use on the BCCI Website unless the content is
altered or amended by LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA
other than for the purpose it was provided. LIVE CURRENT MEDIA shall not
any in manner be liable, subject to or held responsible for, and BCCI
shall indemnify LIVE CURRENT MEDIA against, any costs, expenses, losses,
liabilities, risks, suffered by LIVE CURRENT MEDIA in relation to content
contained on the BCCI Website that has been provided to LIVE CURRENT MEDIA
by (or on behalf of) BBCI (unless the content is altered or amended
by LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for the
purpose it was
provided).
|
|
vi)
|
LIVE
CURRENT MEDIA shall submit annual statements of the income, expenditure
and the Bank Account relating to the BCCI Website and (as applicable) the
income of the LIVE CURRENT MEDIA Xxxxxxx.xxx Portal arising from BCCI
content to the Facilitation Committee by no later than 31
January for the preceding Year of the Term and the books of accounts shall
not be finalized without the same being audited by independent auditors
appointed jointly by BCCI and Live Current Media, at Live Current Media’s
cost if any. All such books of accounts shall be safely
maintained by LIVE CURRENT MEDIA for 6 years after expiry or earlier
termination of this MOU or the Final Agreement, whichever is
later.
|
|
vii)
|
LIVE
CURRENT MEDIA shall provide BCCI with regular reports on the building of
the BCCI Website, and in any event not less than twice per annum. BCCI
may, at its discretion, review the progress and plans on the BCCI Website
rollout and it is agreed that the BCCI Website shall only be
launched/promoted/operated after prior written approval of BCCI (not
to be unreasonably withheld or delayed).
|
|
viii)
|
The
following rollout schedule is currently
anticipated:
|
|
|
ix)
|
It
shall be a condition of this MOU and the Final Agreement that LIVE CURRENT
MEDIA shall pay BCCI the Fee as
follows:
|
|
a)
|
For
the initial three years, Live Current Media will pay the Minimum Annual
Fee on a quarterly basis. For the avoidance of doubt this
payment will occur within 30 days of the quarterly
timetable. The initial quarterly payment will be due October
1st
2008. After the first three years the Minimum Annual Fee will
be paid on a bi-annual basis. Schedule 2 details the payment
amounts and timing over the Term of the
agreement.
|
|
b)
|
LIVE
CURRENT MEDIA will make a further payment to BCCI of any additional share
of the Revenues that is due to BCCI in excess of the Minimum Annual Fee
(“Additional Fee”) within 60 days of the acceptance of the annual audited
financial statements should there be an adjustment.
|
8
|
c)
|
Time
shall be of the essence of all payments of the Minimum Annual Fee and any
Additional Fee and if LIVE CURRENT MEDIA fails to pay any amount due under
this MOU and the Final Agreement by the relevant due date, BCCI shall be
entitled but not obliged to charge LIVE CURRENT MEDIA interest on the
overdue amount from the due date up to the date of actual payment at the
rate of 12.0% per annum
|
|
|
x)
|
LIVE
CURRENT MEDIA will manage, co-ordinate and execute all aspects of the BCCI
Website rollout including funding and cash flow management subject to the
provisions of this MOU.
|
|
|
xi)
|
LIVE
CURRENT MEDIA must obtain the prior written approval of BCCI for the
domain name used for the BCCI Website and for every use of the BCCI logo
and every use of names and/or logos of any BCCI sponsors, partners or
franchises.
|
|
|
xii)
|
LIVE
CURRENT MEDIA shall provide the editorial content for the BCCI Website and
shall ensure that BCCI will have the right, through its representatives on
the Facilitation Committee or otherwise, to participate in the editorial
process and review the content of the BCCI Website from time to time prior
to publication. LIVE CURRENT MEDIA will not include content on the BCCI
Website and will remove content from the BCCI Website based on any
reasonable requests from BCCI.
|
|
|
xiii)
|
LIVE
CURRENT MEDIA shall comply with the reasonable instructions of BCCI in
relation to the placement of official BCCI commercial partners’ names
and/or logos (including without limitation those of the BCCI title sponsor
and other official sponsors) it being acknowledged by BCCI that such
instructions shall not materially detrimentally affect the ability
of to maximise revenues generated by advertising and
sponsorship on the same.
|
|
2.
|
CONFIDENTIALITY
& EXCLUSIVITY
|
|
2.1.
|
The
Parties agree that “Confidential Information” shall mean confidential
information in whatever form disclosed by one Party to the other pursuant
to or in connection with this MOU, and shall include, but not be limited
to, the terms and conditions of this MOU and any drafts hereof, the Final
Agreement and any drafts thereof, any correspondence relating to this MOU
and/or the Final Agreement, concepts, trade-secrets, modules, rollout
plans, know-how, techniques, processes, schematics, contracts, financial
information, sales and marketing
plans.
|
|
2.2.
|
Neither
Party shall disclose (or permit or cause its employees, agents or
representatives to disclose), Confidential Information disclosed to it
(including information disclosed during audit) by the other Party, to any
other person, without the prior written consent of the other Party to whom
the duty of confidentiality is owed, Except That either Party may disclose
any such Confidential Information: (a) if and to the extent required by
Law or for the purpose of any judicial proceedings; (b) if and to the
extent required by regulatory or governmental body to which that party is
subject, only to the extent that such requirement has the force of law;
(c) to its professional advisers (which shall include in the case of BCCI
IMG), auditors and bankers, and its (or its Affiliates') employees, agents
or representatives; (d) if and to the extent the information is or has
come into the public domain through no fault of that Party; and (e) if and
to the extent the other Party has given prior written consent to the
disclosure.
|
|
2.3.
|
The
restrictions contained in 2.2 shall continue to apply after the expiry or
termination of the Final Agreement without limit in time. For
the avoidance of doubt, neither Party shall make or authorise any
announcement concerning this Agreement save as separately and expressly
agreed in writing by the other Party or as otherwise required by Law.
Either party shall be entitled to any and all remedies available at law or
in equity, including injunctive relief, in the event of any breach of such
commitment to confidentiality
|
9
|
2.4.
|
At
expiry of this MOU or the Final Agreement or on earlier termination, each
Party shall return to the other Party or destroy (at the other Party's
election) Confidential Information disclosed to it by such other
Party.
|
|
2.5.
|
BCCI
undertakes that it will not authorise any third party to call its website
the “Official Website of the BCCI” or similar official website designation
or grant to any third party the right to exploit in a website the
exclusive BCCI content granted to LIVE CURRENT MEDIA as listed at Schedule
1 hereto. BCCI also undertakes that it will not itself exploit
in a website the BCCI content granted to LIVE CURRENT MEDIA as listed at
Schedule 1 hereto. The spirit of the agreement being that there
will be one official, comprehensive BCCI Website and that it will be
developed, operated, maintained and promoted by LIVE CURRENT
MEDIA.
|
|
2.6.
|
BCCI
undertakes that it will not promote, market, advertise or endorse any
similar or competitive websites or websites devoted to cricket
coverage.
|
|
3.
|
CONTENT
AND SUPPORT FROM BCCI
|
There are
two key areas of the BCCI Website and the Xxxxxxx.xxx Portal where BCCI
will actively provide support to Live Current Media:
|
3.1.
|
Promotion,
Advertising and Marketing Support
|
For the
purposes of Section 3.1, the “URL of The BCCI Website” shall mean either (this
clause holds across each of the communications vehices referenced
below):
|
1.
|
The
BCCI logo and the URL of The BCCI Website with a “powered by xxxxxxx.xxx”
tag line or,
|
|
2.
|
The
BCCI logo and the URL of The BCCI Website 67% of the time and the
xxxxxxx.xxx logo 33% of the time
|
The
determination of whether definition 1 or 2 is used (by communication vehicle) is
at the discretion of BCCI.
10
|
i)
|
BCCI
acknowledges and recognises that LIVE CURRENT MEDIA will be the designer,
developer, promoter and operator of the BCCI Website. Further, BCCI
acknowledges and recognises that LIVE CURRENT MEDIA will consequently have
the right to publicise the BCCI Website and use BCCI’s name in connection
with the same. BCCI shall itself, and shall procure that its
franchisees, sponsors and other partners also publicise/promote the BCCI
Website, including by way of links from their respective sites to the BCCI
Website .
|
|
ii)
|
BCCI
will participate in a reasonable number of press conferences, PR launches
and other promotional mechanisms to jointly launch and promote throughout
the Term the BCCI Website both in India and globally. The times
and locations of such mechanisms shall be agreed by the Parties acting
reasonably and in good faith. At a minimum a senior member of
BCCI will be available at least 8 times during the year for press
conferences or to be quoted in press
releases.
|
|
iii)
|
BCCI
will use its reasonable endeavours to display the URL of the BCCI Website
on all BCCI press releases, official announcements and all other official
correspondence, in all relevant formats, including digital and
print. In any case such reasonable endevours will constitute in
excess of 80% of such
communications.
|
|
iv)
|
BCCI
will insert (wherever reasonably practicable but not less than 80% of the
time) the URL of the BCCI Website in the world feed of BCCI matches and
shall require its Broadcast Partners not to remove the same from their
transmissions of the matches, it being acknowledged that such insertion
shall at all times be subject to local broadcasting laws and
regulations. “Broadcast Partners”
means the entities to which BCCI has licensed or may license from time to
time the exclusive right to exhibit, transmit or otherwise make available
audio and audio-visual coverage of BCCI matches (including interviews,
awards and ceremonies around the matches) and player auctions via all
media (subject to limited retained rights) it being acknowledged that at
the time of this MOU Neo Sports is the Broadcast Partner, but that this is
subject to change from time to time, and that the term “Broadcast
Partners” shall also include the entities to which such Broadcast Partners
sub-license some or all of the
rights.
|
|
v)
|
BCCI
will set aside a portion of the ticker space on the world feed of BCCI
matches to promote the BCCI Website and URL or contests that are being
housed on the BCCI Website. At a minimum such material will be
shown 4 times per over.
|
|
vi)
|
BCCI
will endeavour to include the URL of the BCCI Website in all Print and
Billboard Advertisements and will at a minimum include the URL in at least
80% of such communications.
|
|
vii)
|
BCCI
will endeavour to include the URL of The BCCI Website in all television
advertisements that BCCI purchases and/or runs in ad-breaks and other
television advertising communications purchased by BCCI and will at a
minimum include the URL in at least 80% of such communications.
|
|
viii)
|
BCCI
will use its reasonable endeavours to display the URL of the BCCI Website
during all live and press covered events, including but not limited to
press conferences, award ceremonies, player auctions and cricket matches
in a manner to be determined by BCCI (acting reasonably).
|
|
ix)
|
BCCI
agrees that up to 50% of the total screen space available on the BCCI
Website may be used for advertisements and sponsor
promotions.
|
11
|
x)
|
Representatives
of LIVE CURRENT MEDIA will be granted resonable stadium access to
undertake in-stadium promotional and marketing activities on behalf of the
BCCI Website.
|
|
xi)
|
LIVE
CURRENT MEDIA acknowledges and accepts that BCCI Sponsors are entitled
to:
|
|
a)
|
To
be identified as official sponsors on the BCCI Website, subject to the
terms of clause 1.14(xii) above, the location and manner of this mention
will be determined by the Parties (acting reasonably). However,
the location or type of these mentions shall not materially detract from
the BCCI Website’s revenue potential (e.g. the sponsorship mention will
not be on “prime” real estate unless determined by LIVE CURRENT
MEDIA)
|
|
b)
|
A
right of first refusal on sponsorship space on the BCCI Website. This
sponsorship will be subject to a separate agreement (and separate
consideration) between the sponsor and LIVE CURRENT MEDIA. If the BCCI
Sponsors decline this option, LIVE CURRENT MEDIA reserves the right to
seek sponsorship at prevailing market rates from other
parties.
|
|
xii)
|
BCCI
grants to LIVE CURRENT MEDIA the right to prominent signage at the stadia
where Indian Premier League matches are played to promote the BCCI Website
(the specific location of such signage to be determined by BCCI acting
reasonably).
|
|
xiii)
|
LIVE
CURRENT MEDIA agrees that:
|
|
|
(a)
|
inadvertent
or accidental failure to include the URL of the BCCI Website shall be
disregarded for the purposes of calculating the percentage appearance of
such URL under clauses 3.1(iii), (iv), (vi) and (vii), and shall not be
amount to breach, and
|
|
|
(b)
|
breach
of clauses 3.1(iii), (iv), (vi) and (vii) shall not justify termination of
this MOU or the Final Agreement.
|
|
xiv)
|
The
total promotion and marketing support of the BCCI Website by the BCCI will
be the equivalent of at least US$2,000,000 p.a. of marketing spend to be
allocated as reasonably determined by BCCI (including without limitation
the value of inclusion of the URL in the world feed of the BCCI
matches). BCCI will make all reasonable endevours to meet this
spending minimum. If the value is not reached then the
shortfall shall be made up in the next
year.
|
|
xv)
|
BCCI
shall provide LIVE CURRENT MEDIA with prizes for use in competitions and
as prizes in games (e.g. Fantasy League) on the BCCI
Website. These prizes will include but not be limited
to:
|
|
·
|
A
minimum of 25 tickets to all BCCI matches. Such tickets shall
be in good locations within the
stadium
|
|
·
|
BCCI
Memorobillia
|
|
·
|
Stadium
tours and access
|
|
3.2.
|
Rights
and Website Content
|
LIVE
CURRENT MEDIA shall be entitled to all online BCCI content not currently
committed in existing contracts entered into BCCI contracts, and the content and
rights granted to LIVE CURRENT MEDIA shall include without limitation the
following:
12
|
i)
|
LIVE
CURRENT MEDIA shall have the exclusive right to display and commercially
exploit all official BCCI still photographic images whose rights are owned
and controlled by the BCCI, including such photographs taken at BCCI
events, subject to the provisions of the press and photography
accreditation arrangements, it being acknowledged that BCCI shall not be
required to acquire rights to still photographic images of matches. LIVE
CURRENT MEDIA must ensure that such still images may not be refreshed in
such a way as to create any form of sequencing that is akin to a moving
image or video.
|
BCCI will
be responsible for commissioning an “official photographer” (that will be
mutually agreed upon by the Parties) for images which will be made available to
LIVE CURRENT MEDIA in accordance with this clause 3.2(i) with the costs of such
official photographers to be shared by BCCI and LIVE CURRENT MEDIA on a 50/50
basis.
Commercial
exploitation of official still BCCI photographic images shall be subject to the
entity licensing and exploiting such images obtaining all necessary endorsement
clearances from individuals featured in such photographic images
|
ii)
|
LIVE
CURRENT MEDIA shall have the non-exclusive right to sell “Official” BCCI
merchandise on the BCCI Website, either directly or via a link to other
official BCCI merchandise outlets, it being acknowledged that the price of
merchandise shall be set by BCCI. BCCI shall make available to LIVE
CURRENT MEDIA exclusive limited edition BCCI merchandise (the exact
merchandise to be jointly agreed by the Parties), and
reasonable and regular access to signed merchandise, memorabilia and
souvenirs (eg. match balls, wickets, etc), in each case for sale or use in
competitions on the BCCI Website.
|
|
iii)
|
BCCI
shall grant LIVE CURRENT MEDIA the exclusive right (subject only to the
BCCI Broadcast Partner rights) to make available the following content on
the BCCI Website on the Internet
only:
|
|
a)
|
An
official live video and/or audio scorecard in relation to each match of
the BCCI (which may incorporate “Clips”), it being acknowledged that there
may be other websites that carry scorecards; and
|
|
b)
|
“Highlights”
of each BCCI match.
|
For the
purposes of 3.2(iii)(a) above “Clips” shall mean a reasonable number of excerpts
of footage of Matches of no more than 30 seconds per excerpt (which shall be
accessed by a click or other appropriate access mechanism) which may be made
available by LIVE CURRENT MEDIA on a delayed basis no sooner than 5 minutes
after the action in the relevant Clip has taken place
For the
purposes of 3.2(iii)(a) “Highlights” shall mean edited excerpts of footage of
not more than 52 minutes in duration per BCCI match and which shall not be made
available until 1 hour after each innings of a match. From 72 hours
after each match, such Highlights programming under 3.2(iii)(b) may be longer
than 52 minutes in duration per Match from 72 hours after the end of the
relevant Match.
For the
avoidance of doubt, the only other parties that will have access to BCCI “Clips”
and “Highlights” shall be the BCCI Broadcast partners.
|
iv)
|
LIVE
CURRENT MEDIA shall have the Non exlcusive right to exploit (including use
and distribution) the audio-visual archive of BCCI matches on the Internet
from 72 hours after the end of the relevant BCCI match. Till 2010. Post
that it will be exclusive post 2010 till the contracted
period
|
13
|
v)
|
In
relation to the content at 3.2(iii) and 3.2(iv), BCCI shall make available
the world feed to LIVE CURRENT MEDIA at the venue of each BCCI match, and
LIVE CURRENT MEDIA shall be entitled to edit the same to create the Clips
and Highlights detailed in 3.2(iii) and (iv)
above.
|
|
vi)
|
LIVE
CURRENT MEDIA shall have Exclusive internet rights to raw camera footage
of BCCI Matches not used in the World Feed, which LIVE CURRENT MEDIA may
exploit on as follows:
|
a) Within
72 hours of each Match
1. 52
minutes on one hour delay
2. Reasonable
number of 30sec clips on a 5 minute delay
b) Post 72 hours after each
Match: no restrictions on length of footage
|
vii)
|
From
72 hours after each Match, LIVE CURRENT MEDIA shall have the Exclusive
right to license to third parties Internet rights to archive BCCI Match
footage in a “clean format” that is owned and controlled by the BCCI, by
way of clips and other exploitation. “Clean format” means
that the video will not contain the BCCI logo. Broadcast Partners
shall have the right to commercially exploit archive BCCI footage but it
shall always have the BCCI logo visible in the video. LIVE
CURRENT MEDIA shall obtain BCCI clearance for each proposed exploitation
of these rights, it being acknowledged that LIVE CURRENT MEDIA shall not
license television broadcast competitors of the Broadcast Partners until
72 hours after the end of the BCCI
Match.
|
|
viii)
|
LIVE
CURRENT MEDIA shall have the exclusive right to produce and retail DVD
titles incorporating the BCCI Matches on behalf of BCCI, each such DVD
title to be subject to BCCI approval, not to be unreasonably withheld.
Apart from the rights already given to Green
Umbrella.
|
|
ix)
|
LIVE
CURRENT MEDIA shall have the exclusive right and license to operate
official on-line fantasy leagues of
BCCI
|
|
x)
|
BCCI
shall ensure that all official announcements of BCCI are promptly notified
to LIVE CURRENT MEDIA to enable the same to be included on the BCCI
Website
|
|
xi)
|
The
BCCI Website shall be the exclusive point of sign-up and distribution of
the BCCI newsletter
|
|
xii)
|
BCCI
shall provide LIVE CURRENT MEDIA with preferential access such historic
and on-going player, team, match and tournament statistics as LIVE CURRENT
MEDIA reasonably requires in a suitable format to be agreed by the Parties
|
|
xiii)
|
BCCI
shall provide LIVE CURRENT MEDIA with exclusive and direct access to live
scoring feeds from all matches if it does the same. If not, Live Current
Media will have the exclusive access to the venue to do the same. This is
further clarified that it applies to Cricket only
sites.
|
|
xiv)
|
BCCI
shall use reasonable endeavours (including making reasonable requests to
players under the terms of the player contracts) to provide access to
coaches, owners, officials and BCCI players for interviews, blogs,
profiles, fan meet and greet sessions, participation in Fantasy Leagues
and other content, subject to applicable ICC, BCCI and other regulations.
LIVE CURRENT MEDIA shall have the right to request specific players but it
acknowledges and accets that BCCI can not guarantee participation by
specific players at specific times. However, BCCI commits that,
in aggregate, LIVE CURRENT MEDIA will receive active player participation
in the BCCI Website.
|
14
It is
agreed that audio-visual or audio-visual coverage of interviews conducted with
players during intervals in matches or as part of ceremonies, presentations or
other events immediately before or after such matches may not be made available
on the BCCI Website until 72 hours after the relevant match.
|
xv)
|
Rights
over the sale of tickets online will be determined in the Final
Agreement.
|
|
xvi)
|
BCCI
shall grant LIVE CURRENT MEDIA the exclusive right to exploit (for online
use and distribution only) BCCI’s historic archive of videos
pre-1996. For clarity, this right does not include the
commercial syndication of the
archive.
|
|
xvii)
|
BCCI
shall grant LIVE CURRENT MEDIA the right to make available
selected this content on the BCCI Website and the Xxxxxxx.xxx
Portal or any other of its Cricket
portals.
|
|
xviii)
|
LIVE
CURRENT MEDIA shall be entitled to sub-licence the rights set out in this
clause 3.2, subject to obtaining BCCI’s prior written approval for such
proposed sub-licence. LIVE CURRENT MEDIA shall not sell
any of the BCCI content set out above to brand category competitors of
BCCI Sponsors without obtaining the prior written approval of
BCCI
|
|
xix)
|
Live
Current Media will have the right to make special shows, clips and
highlights for BCCI games.
|
|
4.
|
OTHER
CONSIDERATIONS
|
|
4.1
|
BCCI
grants to LIVE CURRENT MEDIA a non-exclusive, royalty-free, worldwide
licence during the Term to use the names and logos of IPL, BCCI, official
BCCI commercial partners (including without limitation those of the BCCI
title sponsor and other official sponsors) in the form(s) provided to LIVE
CURRENT MEDIA by BCCI on the BCCI Website and within any advertising or
promotions for the same. LIVE CURRENT MEDIA agrees to comply with such
reasonable guidelines as are provided to it in writing by BCCI from time
to time in relation to the use of such names and
logos.
|
4.2 LIVE
CURRENT MEDIA will assign to BCCI on creation:
|
|
(i)
|
all
intellectual property rights (including but not limited to all copyright)
in the design, look, feel, format and all content of the BCCI Website and
BCCI will grant LIVE CURRENT MEDIA a licence to use such rights during the
Term;
|
|
|
(ii)
|
all
rights to any domain names registered by LIVE CURRENT MEDIA in connection
with the BCCI Website and this MOU/the Final Agreement;
and
|
|
|
(iii)
|
all
rights to customer data of customer data of customers signing up through
the BCCI Website, and BCCI shall grant LIVE CURRENT MEDIA a licence to use
such data to promote the BCCI Website with authorisation from BCCI and the
relevant customer (and subject to any applicable data protection laws and
regulations). It is acknowledged that 1.9(ii)(a) will apply if
the Term of this MOU/the Final Agreement is not renewed, and LIVE CURRENT
MEDIA shall own the rights to customer data of customers signing up
through the Xxxxxxx.xxx Portal.
|
|
4.3
|
BCCI
acknowledges and agrees that all intellectual property rights (including
but not limited to all copyright) in the Xxxxxxx.xxx Portal (except for
content that is included on the Xxxxxxx.xxx Portal that is owned by BCCI
or content taken from the BCCI Website) shall vest, and remain vested, in
LIVE CURRENT MEDIA. Furthermore, all rights to the domain names
registered by LIVE CURRENT MEDIA in relation to the Xxxxxxx.xxx Portal
shall vest, and remain vested in, LIVE CURRENT MEDIA unless they relate to
the BCCI.
|
15
|
4.4
|
BCCI
shall warrant that BCCI content that it provides to LIVE CURRENT MEDIA
under this MOU and the Final Agreement shall not infringe the rights of
any third party in the form in which it is made available to LIVE CURRENT
MEDIA.
|
|
4.5
|
LIVE
CURRENT MEDIA acknowledges and agrees that BCCI has granted its official
sponsors, suppliers and Broadcast Partners the right exploit
on their respective websites certain of the content to be provided to LIVE
CURRENT MEDIA under this MOU and shall be entitled to grant to official
sponsors, suppliers and Broadcast Partners appointed in the future the
right to exploit the same content on their respective websites.
|
|
4.6
|
Except
for the content and means of exploitation set out at 3.2(iii) above LIVE
CURRENT MEDIA acknowledges and accepts that it shall not be entitled
without the further agreement of BCCI to make available on the BCCI
Website any audio or audio-visual coverage of the BCCI matches and
ceremonies and presentations around those matches until 72 hours after the
same, and that if it does so BCCI may be in breach of its contracts with
its Broadcast Partners. Without limitation to the generality of
the above, LIVE CURRENT MEDIA acknowledges and agrees that the BCCI
Website shall not contain any live or as live continuous audio and/or
audio-visual coverage of any BCCI match, unless LIVE CURRENT MEDIA is
authorized to make available such coverage pursuant to a contract with a
Broadcast Partner. BCCI shall use its reasonable endeavours to
make available to LIVE CURRENT MEDIA additional audio and/or audio-visual
content for inclusion on the BCCI Website from time to time (as agreed by
BCCI).
|
|
4.7
|
Without
prejudice to the generality of the risk and cost being assumed by LIVE
CURRENT MEDIA hereunder, LIVE CURRENT MEDIA shall ensure that the BCCI
Website (and in particular any message boards or social networking
platforms therein) shall contain nothing defamatory of the game of
cricket, the ICC, BCCI or BCCI Sponsors or any players, coaches or other
participants in the BCCI. Where LIVE CURRENT MEDIA becomes aware of any
such content being included on the BCCI Website it shall remove the same
as soon as reasonably practicable
|
|
|
4.8
|
If BCCI and/or Live Current Media
becomes aware of any unauthorised exploitation by a third party of any of
the rights granted to LIVE CURRENT MEDIA hereunder, or the infringement by
a third party of the exclusivity granted to LIVE CURRENT MEDIA hereunder,
the Parties shall jointly and promptly take such action as is necessary to
end the same.
|
16
|
5.
|
FINAL
AGREEMENT
|
|
5.1.
|
When
signed by both Parties, this MOU is a legally binding agreement between
the Parties with further terms and conditions to be negotiated and
included in the Final Agreement.
|
|
5.2.
|
The
Final Agreement between the Parties shall be drafted and signed off to
reflect the terms agreed in this MOU. BCCI and LIVE CURRENT MEDIA have
agreed to go ahead with the press announcement that will be jointly
approved by BCCI and LIVE CURRENT MEDIA before September 2008 to announce
the launch of the BCCI Website.
|
|
5.3.
|
LIVE
CURRENT MEDIA shall be responsible for ensuring the compliance of the BCCI
Website and the Xxxxxxx.xxx Portal with all applicable laws and
regulations.
|
|
5.4.
|
LIVE
CURRENT MEDIA shall not be entitled to assign, sub-contract, or otherwise
transfer any of its obligations under this MOU or the Final Agreement
without the prior written consent of BCCI, and BCCI reserves the right to
terminate the Final Agreement if LIVE CURRENT MEDIA ceases to carry on
business.
|
|
5.5.
|
This
MOU (and the Parties agree that the subsequent Final Agreement) shall be
governed by and construed in accordance with the substantive laws of
India. Any dispute arising out of or in relation to this MOU
(or the Final Agreement) involving the interpretation or implementation of
the clauses of this MOU (or the Final Agreement), or the breach,
termination or validity thereof, shall be resolved in accordance with the
procedures specified in this clause which shall be the sole and exclusive
procedure for the resolution of any and all such disputes before seeking
recourse to Arbitration.
|
|
5.6.
|
The
parties shall attempt in good faith to resolve any dispute arising out of
or relating to this MOU (or the Final Agreement) promptly by good faith
negotiations for a period of twenty-one (21) days from date of issuance of
written notice that a dispute has
arisen.
|
|
5.7.
|
Any
dispute which has not been resolved as provided herein within 21 days of
the initiation of such procedure, shall be settled exclusively by
arbitration in Mumbai India, in accordance with ARBITRATION AND
CONCILIATION ACT, 1996. The arbitration tribunal shall consist
of 3 arbitrators, with each party designating one arbitrator and the said
chosen arbitrators designating the third arbitrator. The place of
arbitration in India shall be Chennai and the language of arbitration
shall be English. The arbitrators are not empowered to award
damages in excess of compensatory damages and each party hereby
irrevocably waives any right to recover such damages with respect to any
dispute resolved by arbitration.
|
|
5.8.
|
The
Parties hereby agree any award of the tribunal shall be enforced in any
court of competent jurisdiction in
Mumbai.
|
|
5.9.
|
This
MOU shall be governed by and construed in accordance with the laws of
India and shall be subject to the exclusive jurisdiction of the courts in
Mumbai, India.
|
17
IN WITNESS WHEREOF, this MOU
has been entered into on the date stated at the beginning by the
Parties.
| /s/ Xxxxx Xxxxxxx | ||
|
SIGNED
AND DELIVERED
|
)
|
|
|
by
the within named LIVE CURRENT MEDIA Inc
|
)
|
|
|
by
the hand of its authorised signatory
|
)
|
|
|
Xx.
Xxxxx Xxxxxxx
|
||
|
in
the presence of [Xx. Xxxx Xxxxxxxx
|
)
|
| /s/ Xxxxx Xxxx | ||
|
SIGNED
AND DELIVERED
|
)
|
|
|
by
the within named BCCI
|
)
|
|
|
Board
of Control for Cricket in India
|
)
|
|
|
by
the hand of its authorised signatory
|
)
|
|
|
Mr.
Xxxxx Xxxx
|
)
|
|
|
in
the presence of [Mr. Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
|
)
|
18
SCHEDULE
1
Content
items included in the XXXX.XX Website
LIVE
CURRENT MEDIA and BCCI have agreed that the XXXX.XX Website may include the
following items of content, and that (as applicable) the BCCI will support the
XXXX.XX Website by providing access to the necessary content sources that BCCI
owns and/or controls and/or licensing such content that BCCI owns and/or
controls to LIVE CURRENT MEDIA (at no additional cost) subject to the terms of
the MOU:
|
i)
|
News
and happenings
|
|
ii)
|
Clips
and highlights
|
|
iii)
|
Interviews,
audio-visual content relating to players, clubs, matches and tournaments
other than match-play
|
|
iv)
|
Club
profiles
|
|
v)
|
Player
profiles
|
|
vi)
|
Match and
tournament schedules
|
|
vii)
|
Statistics:
player, team, match and tournament
|
|
viii)
|
Ticketing
(exact format TBD)
|
|
ix)
|
Blogs
|
|
x)
|
Newsletters
(email subscription)
|
|
xi)
|
Contests
|
|
xii)
|
Polls
|
|
xiii)
|
Games
(it being specifically acknowledged that BCCI reserves the right to
authorise a third party to create, market and distribute one or more
“Official” BCCI computer games)
|
|
xiv)
|
Live
scoreboard and text commentary
|
|
xv)
|
Match
results
|
|
xvi)
|
Match
reports
|
|
xvii)
|
Fantasy
League game
|
|
xviii)
|
Online
Store
|
|
xix)
|
Message
boards
|
|
xx)
|
Comprehensive
Social Networking Platform incuding member profiles, tickers,
etc. It should be noted that while some/all of the
functionality will reside on the XXXX.XX Website some may reside on
popular social networks (e.g. Xxxxx, Facebook,
etc.)
|
19
SCHEDULE
2
Minimum
Annual Fee Payment Schedule
|
Payment
Due Date
|
Payment
Amount ($US)
|
|
October
1, 2008
|
$625,000
|
|
January
1, 2008
|
$625,000
|
|
April
1, 2008
|
$625,000
|
|
July
1, 2008
|
$625,000
|
|
October
1, 2009
|
$750,000
|
|
January
1, 2009
|
$750,000
|
|
April
1, 2009
|
$750,000
|
|
July
1, 2009
|
$750,000
|
|
October
1, 2010
|
$750,000
|
|
January
1, 2010
|
$750,000
|
|
April
1, 2010
|
$750,000
|
|
July
1, 2010
|
$750,000
|
|
October
1, 2010
|
$1,500,000
|
|
January
1, 2011
|
$1,500,000
|
|
October
1, 2011
|
$1,500,000
|
|
January
1, 2012
|
$1,500,000
|
|
October
1, 2012
|
$1,500,000
|
|
January
1, 2013
|
$1,500,000
|
|
October
1, 2013
|
$1,500,000
|
|
January
1, 2014
|
$1,500,000
|
|
October
1, 2014
|
$1,500,000
|
|
January
1, 2015
|
$1,500,000
|
|
October
1, 2015
|
$1,500,000
|
|
January
1, 2016
|
$1,500,000
|
|
October
1, 2016
|
$1,750,000
|
|
January
1, 2017
|
$1,750,000
|
20
