Exhibit 10.3
AFFILIATION AGREEMENT
This AFFILIATION AGREEMENT (this "Agreement") is entered into as of
February 1, 1999 between JAMtv Corporation, a Delaware corporation ("JAMtv"),
and ▇▇▇▇▇ Publications, Inc., an Illinois corporation ("DOWNBEAT").
RECITALS:
A. DOWNBEAT and JAMtv desire to enter into the agreements described
herein providing for the use of the Downbeat Content (including the contents of
DOWNBEAT magazine and the Website at the Downbeat URL) on the Downbeat Website
and on the JAMtv Music Network. Capitalized terms used in this Agreement have
the meanings ascribed to them in Section 1 below.
B. Subject to the satisfaction of the conditions precedent set forth
herein and subject to the other terms and conditions set forth in this
Agreement:
(i) JAMtv and DOWNBEAT will commence the creation and operation
of the Downbeat Website and the integration of Downbeat
Content into the JAMtv Music Network in accordance with the
Launch Schedule;
(ii) JAMtv will provide the JAMtv Hosting Services and present
the Downbeat Content on the Downbeat Website;
(iii) DOWNBEAT will deliver the Downbeat Content to JAMtv and
grant the DOWNBEAT Licenses to JAMtv;
(iv) DOWNBEAT will provide certain advertising and promotion
services and opportunities to JAMtv in connection with
DOWNBEAT magazine, as well as access to certain promotional
programs;
(v) JAMtv will pay certain fees to DOWNBEAT based on Net
Revenues; and
(vi) from and after the Launch Date, among other things, the
Downbeat URL will be integrated into and will point to the
JAMtv Music Network.
NOW, THEREFORE, in consideration of the Recitals (which are incorporated
herein by this reference), the mutual promises contained herein, and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, JAMtv and DOWNBEAT hereby agree as follows:
1. DEFINED TERMS. As used in this Agreement, the
following capitalized terms shall have the meanings set forth
below unless otherwise defined herein.
"Archival Downbeat Content" means the archival and
historical Downbeat Content or derivatives thereof which are or
will be digitized, formatted, modified, recorded, or otherwise
manipulated or stored by JAMtv to render such Downbeat Content
suitable for use with the Downbeat Website in accordance with
Section 2.
"Confidential Information" means the trade secrets or other
information of a confidential nature of a party hereto, including,
without limitation, such information, arising from such party's
business, customers, or Proprietary Rights, and whether or not
owned by such party or held in confidence by such party under an
obligation of confidentiality with a third party.
"Default" means a default by a party under this Agreement
as specified in Section 17.
"Downbeat Content" means all of Downbeat's (a) copyrights,
whether or not registered, registrations thereof, applications for
registration thereof, and all secondary and subsidiary rights
therein, (b) the Downbeat URL, service marks, trademarks, trade
dress, registrations thereof, and applications for registration
thereof, together with the goodwill symbolized thereby and
connected therewith, (c) art, audiovisual works, animations,
cartoons, characters, choreography, compilations, collective
works, computer software and programs, data, designs, emblems,
films, film clips, graphics, images, illustrations, likenesses,
literary works, logos, motion pictures, musical compositions,
music videos, performances, photographs, pictorial works, songs,
song lyrics, sound recordings, scripts, screenplays, templates,
text, video recordings, copyrightable subject matter, works of
authorship, and other proprietary rights, (d) all rights under
copyright and moral rights associated with the foregoing, (e) all
renewals, extensions, continuations, derivative works,
enhancements, improvements, modifications, updates, new releases
or other revisions of the foregoing, (f) all publicity rights or
privacy rights (or waivers or quitclaims thereof) of any person or
entity, and (g) all rights corresponding to the foregoing
throughout the world; all of the foregoing which any of DOWNBEAT
or its employees, consultants or representatives has created or
may hereafter create, has licensed or may hereafter license, or
has acquired or may hereafter acquire, in any form and on any
medium now known or hereafter developed, whether tangible,
printed, recorded, digitized, fixed, stored, electronic, or
otherwise
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embodied; including, without limitation, the content of DOWNBEAT
magazine and the rights of DOWNBEAT described on SCHEDULE 2 hereto.
"Downbeat Merchandise" means merchandise (including without
limitation books, magazine back issues, compact disks, and
clothing) incorporating, embodying or displaying Downbeat Content
or Downbeat Trademarks, and such other merchandise as may be
selected by Downbeat in its reasonable discretion to be sold at
the Downbeat Website.
"Downbeat Trademarks" means the Downbeat URL and the
trademarks, service marks and logos listed on SCHEDULE 3 hereto.
"Downbeat URL" means the uniform resource locator
'▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇' and any and all variations or
extensions thereof used to identify or locate the Downbeat
Website, including, without limitation, '▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇'
to the extent rights to use such URL are obtained by Downbeat.
"Downbeat Website" means the World Wide Website at the
Downbeat URL (or any other of JAMtv's alternatively named
interactive multimedia site(s) available on the Interactive
Network featuring primarily Downbeat Content) and on which JAMtv
shall after the Launch Date, pursuant hereto, place, broadcast,
download, transmit, or distribute Downbeat Content (and JAMtv
Content pursuant hereto), as updated, modified, or supplemented
from time to time.
"Downbeat Licenses" means the licenses and rights granted
to JAMtv pursuant to this Agreement.
"DOWNBEAT Magazine" means a reference to DOWNBEAT Magazine.
"Interactive Network" means the Internet, the World Wide
Web, and any other interactive electronic means of distribution or
transmission now or hereafter known, including without limitation
computer networks, cable networks, fiber optic networks, satellite
networks, network dependent or enabled CDs, CD-ROMs and DVDs, and
wireless interactive networks.
"Initial Term" means the initial two (2) year term of this
Agreement specified in paragraph (a) of Section 16.
"JAMtv Content" means (exclusive of JAMtv's rights in the
Downbeat Content) all of JAMtv's: (a) copyrights, whether or not
registered, registrations thereof, applications for registration
thereof, and all secondary and subsidiary rights therein, (b)
service marks, trademarks,
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trade dress, registrations thereof, and applications for registration
thereof, together with the goodwill symbolized thereby and connected
therewith, (c) art, audiovisual works, animations, cartoons, characters,
choreography, compilations, collective works, computer software and
programs, data, designs, emblems, films, film clips, graphics, images,
illustrations, likenesses, literary works, logos, motion pictures,
musical compositions, music videos, performances, photographs,
pictorial works, songs, song lyrics, sound recordings, scripts,
screenplays, templates, text, video recordings, copyrightable
subject matter, works of authorship, trade secrets (including
without limitation customer and vendor lists), and other
proprietary rights, (d) all rights under copyright and moral
rights associated with the foregoing, (e) all renewals,
extensions, continuations, derivative works, enhancements,
improvements, modifications, updates, new releases or other
revisions of the foregoing, (f) all publicity rights or privacy
rights (or waivers or quitclaims thereof) of any person or entity,
and (g) all rights corresponding to the foregoing throughout the
world; all of the foregoing which any of JAMtv or its employees,
consultants or representatives has created or may hereafter
create, has licensed or may hereafter license, or has acquired or
may hereafter acquire, in any form and on any medium now known or
hereafter developed, whether tangible, printed, recorded,
digitized, fixed, stored, electronic, or otherwise embodied. Without
limiting the generality of the foregoing, JAMtv
Content shall include original and licensed content which was
developed or licensed by JAMtv (other than Downbeat Content) for
use in connection with the Downbeat Website.
"JAMtv Hosting Services" means the services provided by
JAMtv in accordance with Section 2.
"JAMtv Music Network" means the interactive multimedia site
on the Interactive Network currently hosted by JAMtv at the JAMtv
URL or any other location or site on the Interactive Network
through which JAMtv places, broadcasts, downloads, transmits, or
distributes JAMtv Content or, after the Launch Date, any Downbeat
Content pursuant hereto, together with any affiliated radio
station sites and participating venue or affiliate sites on the
Interactive Network.
"JAMtv URL" means the uniform resource locator
'▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇' and any and all extensions thereof.
"Launch Date" means the completion date of the initial
integration of the Downbeat Content into the Downbeat Website, as
mutually accepted by JAMtv and DOWNBEAT.
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"Launch Schedule" means the tasks to be performed by JAMtv
and DOWNBEAT to commence and consummate the integration of the
Downbeat Trademarks and the Downbeat Content into the JAMtv Music
Network and the Downbeat Website and the time line therefor, as
such tasks and time line are more particularly described in
Section 2 and on SCHEDULE 1.
"Net Revenue" means total gross invoice amounts for sales
of Downbeat Merchandise and sales of advertising or sponsorships
directly attributable to or arising by reason of the Downbeat
Website, less the following amounts to the extent directly
attributable to the Downbeat Website:
(i) (A) actual amounts paid as
commissions, fees or similar fees or
compensation, and related costs paid to third
party agencies in connection with the sale of
advertisement or sponsorships, or (B) twenty
percent (20%), in the event either JAMtv or
Downbeat has sold the advertisement or
sponsorship directly;
(ii) actual costs of Downbeat
Merchandise sold, the revenue relating to
which is included in Net Revenues, and costs
associated with the fulfillment of such sales
of Downbeat Merchandise;
(iii) the amounts expended by JAMtv
on in-store, point of sale, traditional
media, and similar promotions; and
(iv) cooperative advertising and
similar promotional amounts (such as credits,
cash discounts, rebates, promotional
allowances or similar items to customers), as
well as any invoiced amounts for copies
supplied for promotional purposes to the
press, trade, sales representatives or
potential customers.
In determining Net Revenues, amounts invoiced or received by JAMtv
in foreign currencies will be deemed converted into United States
dollars at the average exchange rates used by JAMtv in its
financial statements for the month of invoice or receipt, as
appropriate.
"Network Icon" means a printed icon or logo of type, style,
and design to be mutually agreed upon between the parties for
placement at
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certain designated locations in DOWNBEAT magazine which will refer to
related supplementary materials and multimedia assets available on
the Downbeat Website in accordance with Section 7.
"Proprietary Rights" means any copyright, trademark, trade
name, trade dress, service ▇▇▇▇, domain name, invention,
discovery, patent, patent applications, trade secret, rights of
publicity, and any other proprietary interests, including but not
limited to rights in assets such as HTML and/or VRML code, CGI
and/or Perl scripts, JavaScript code and Java code or applets and
tools or techniques developed, page designs, layouts, graphic
images, and/or styles, and page and/or form templates developed.
"Recoupable Amounts" means the amounts set forth in
Paragraph 8 (c) that may be setoff or recouped against Net Revenue
as provided in such paragraph.
"Term" means the Initial Term or any Renewal Term.
"Third Party Restrictions" means the restrictions imposed
by third parties on DOWNBEAT's rights in Downbeat Content provided
by third parties, as such restrictions are more particularly
described in paragraph (b) of Section 4.
2. JAMTV HOSTING SERVICES. JAMtv will install and host, at no
cost to DOWNBEAT, the Downbeat Website on JAMtv's Internet servers in Chicago
(or elsewhere). In accordance therewith, JAMtv will: (a) migrate and integrate
Downbeat Content into the Downbeat Website and the JAMtv Music Network; (b)
digitize and integrate existing and future Downbeat Content as it deems
appropriate for use on the Downbeat Website; (c) maintain, support and further
develop the Downbeat Website; and (d) at the direction of DOWNBEAT, promote and
offer to sell Downbeat Merchandise on the Downbeat Website (provided that the
fulfillment of all Downbeat Merchandise sold on the Downbeat Website shall be
the sole responsibility of DOWNBEAT). JAMtv may, at any time, in its sole
discretion after the Launch Date, change, expand, alter or redesignate the
physical server(s) for the Downbeat Website and associated servers for the JAMtv
Music Network as well as their physical locations in order to enhance, optimize,
simplify, consolidate or otherwise integrate the performance and other operating
characteristics of all of the sites on the Interactive Network which
collectively constitute the JAMtv Music Network. If the quality of the primary
features and functions of the Downbeat Website (including frequency of updates,
breadth and depth of coverage, usability, etc.) are not least substantially
equal to the analogous functions and features provided by JAMtv to its other
sites on the JAMtv Music Network, e.g., the Rolling Stone Network, then DOWNBEAT
may so notify JAMtv in writing of such deficiencies, including a description of
how the Downbeat Website is deficient. Within thirty (30) days of receiving
such notice, JAMtv will provide DOWNBEAT with a reasonable plan
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for rectifying such deficiencies. Such plan must be completed as soon as
possible and in no event later than ninety (90) days after the date JAMtv
received the notice of deficiency. Except as specifically set forth in this
Agreement or as specifically agreed to by Downbeat, the services of JAMtv as
they relate to the Downbeat Website shall be without additional charge.
3. DOWNBEAT CONTENT. In accordance with and subject to the following
terms and the terms more particularly described on SCHEDULE 2 attached hereto,
DOWNBEAT will develop, create, acquire, deliver, and make available to JAMtv to
the extent not prohibited by Third Party Restrictions, the Downbeat Content at
no cost to JAMtv other than as expressly provided in this Agreement.
(a) ACCESS AND DELIVERY. DOWNBEAT shall provide JAMtv,
at reasonable times and from time to time, access to the
facilities where Downbeat Content is or may be stored in order to
access, copy, duplicate, digitize, retrieve, and utilize the
Downbeat Content. DOWNBEAT shall provide JAMtv with reasonable
assistance and technical support pursuant thereto including,
without limitation, provision and shipping to JAMtv of recordings,
CDs or other copies of the Downbeat Content or transmission
thereof by electronic, satellite, Internet, or telecommunications
means to JAMtv. JAMtv will have access to such new Downbeat
Content to be published in DOWNBEAT magazine on or about the
earlier of seven (7) days prior to the initial mailing of
subscription copies of or seven (7) days prior to the initial
distribution to newsstands of the issue of DOWNBEAT magazine in
which such Downbeat Content is to appear. Notwithstanding the
foregoing, the schedule for publication of such Downbeat Content
on the Downbeat Website shall be mutually agreed upon by the
parties. DOWNBEAT and JAMtv will provide to each other, at no
cost to the other, access to and appropriate copies of statistics,
charts, lists, sales figures, and other data related to activities
on the Downbeat Website which each of them may obtain, purchase,
develop or otherwise possess.
(b) FORM. To the extent available, DOWNBEAT will
provide JAMtv with (1) electronic, CD, or digital copies of
Downbeat Content in server ready format and (2) color copies, of
typeset quality, of all trademarks, service marks, design logos,
and artwork comprising Downbeat Content. Archival Downbeat Content
that is not in digital format may be provided or delivered in
whatever form it is presently available.
(c) ACQUISITION AND CREATION OF DOWNBEAT CONTENT. To
the extent consistent with DOWNBEAT's agreements with
contributors, writers, photographers, promoters, artists,
musicians, and other originators, creators, owners, and licensors
of Downbeat Content, DOWNBEAT will in good faith and with
reasonable diligence develop, create, and acquire
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additional Downbeat Content on a basis consistent with past
practices with respect to the creation or acquisition of content
for DOWNBEAT magazine. DOWNBEAT will, in good faith, use reasonable
efforts to acquire such incremental or incidental rights necessary
to use Downbeat Content on the Downbeat Website to which it does not
otherwise have Proprietary Rights therein sufficient to permit
such use, whenever an opportunity to acquire such rights arises by
virtue of any contract negotiations or discussions between
DOWNBEAT and any originator, creator, owner, or licensor (or any
agent or manager thereof) of rights covered by the definition of
Downbeat Content (including without limitation such rights
relating to any literary, artistic, or photographic contribution,
interview, live performance, or studio session); provided,
however, that notwithstanding the foregoing, DOWNBEAT shall not be
required to pay any additional amounts in order to secure such
additional rights. DOWNBEAT shall promptly notify JAMtv upon
DOWNBEAT's acquisition of any significant new Downbeat Content
relating to jazz or blues music out of the ordinary course of
business and, provided it possesses Proprietary Rights thereto
sufficient to permit use thereof on the Downbeat Website, will
make all such Downbeat Content readily available to JAMtv in
accordance with paragraph (a) above; provided, however, that to
the extent that DOWNBEAT in its reasonable judgment determines
that such new Downbeat Content is best exploited by DOWNBEAT
through media other than through the Interactive Network, e.g.,
sales of books or CDs, then DOWNBEAT will provide JAMtv such
amount of the Downbeat Content for use on the Downbeat Website as
it reasonably determines will not dilute Downbeat's economic
exploitation of such Downbeat Content. DOWNBEAT will also assist
JAMtv in identifying, soliciting and contracting with writers and
other talent which the parties believe can make substantial
contributions to the content on the Downbeat Website. DOWNBEAT
and the DOWNBEAT magazine staff will assist JAMtv in developing
new sections, areas, features, and other elements for the Downbeat
Website including, without limitation, weekly events, photography,
trivia, games and quizzes, personals and polls online, celebrity
chats, music critics round tables, and gossip columns. In
addition, DOWNBEAT and the DOWNBEAT magazine staff will assist
JAMtv in developing new brand opportunities, products and services
for items such as branded Downbeat Website webcasts for Yahoo,
branded Downbeat Website interviews, and branded Downbeat Website
online celebrity chats.
(d) DOWNBEAT STAFFING. DOWNBEAT will maintain and make
available a staff of sufficient size, experience and capability
throughout the Term to meet its content production
responsibilities under this Agreement. DOWNBEAT will direct
appropriate senior members of the DOWNBEAT magazine staff to visit
JAMtv offices in Chicago on a regular
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basis to plan and coordinate the activities of the parties in
providing the content for the Downbeat Website.
4. CONTENT LICENSE.
(a) GRANT. Subject to the Third Party Restrictions,
DOWNBEAT hereby grants to JAMtv for the Term only (as may be
modified, extended or shortened pursuant hereto) an exclusive,
irrevocable, paid-up and royalty-free worldwide license to and
right to use and exploit the Downbeat Content (including without
limitation through the reproduction, translation, printing,
adaptation, modification, reformatting, publishing, alteration,
digitizing, capturing, editing, cropping, combination,
synchronization, exhibition, performance, display, and
transmission thereof in any form and through any medium now known
or later developed) in connection with the Downbeat Website and on
the JAMtv Music Network, and the design, operation, distribution,
display, transmission, marketing, advertising, and promotion
thereof. Notwithstanding the foregoing, JAMtv shall limit the use
of Downbeat Content on the JAMtv Music Network (other than the
Downbeat Website itself) to items such as headlines, teasers, and
links to the Downbeat Website, where the primary purpose of the
use of such content is to drive additional traffic to the Downbeat
Website. JAMtv agrees that it shall not use Downbeat Content on
JAMtv's ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇.▇▇▇ websites without the
prior written consent of DOWNBEAT.
(b) THIRD PARTY RESTRICTIONS. JAMtv acknowledges that
DOWNBEAT does not possess all of the Proprietary Rights necessary
to provide and license certain Downbeat Content for use on the
Downbeat Website because certain Downbeat Content is subject to
Third Party Restrictions. DOWNBEAT will provide JAMtv with copies
of documentation setting forth any Third Party Restrictions or
will disclose to JAMtv the nature, duration, scope, and other
material terms of any Third Party Restrictions in reasonable
detail. Provided that DOWNBEAT has provided to JAMtv sufficient
information regarding Third Party Restrictions and the permitted
use of Downbeat Content subject thereto, JAMtv shall use such
Downbeat Content in a manner consistent with such Third Party
Restrictions. DOWNBEAT shall have no obligation to obtain all
necessary rights to use such Downbeat Content in connection with
the Downbeat Website unless it does so in the ordinary course of
business in connection with DOWNBEAT magazine; provided that
DOWNBEAT will in good faith use reasonable efforts to obtain such
rights if JAMtv has previously consented in writing to pay the
incremental reasonable out-of-pocket costs of DOWNBEAT associated
therewith, which costs DOWNBEAT would not otherwise have incurred
in the ordinary course of business for DOWNBEAT magazine.
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(c) FIRST OFFER TO JAMTV. If DOWNBEAT is unable,
despite its reasonable efforts, to acquire or license the rights
covered by the definition of Downbeat Content pursuant to the
preceding paragraphs, DOWNBEAT will reasonably cooperate with
JAMtv to assist JAMtv in acquiring or licensing such rights.
(d) DOWNBEAT URL. Subject to the licenses granted
hereunder, DOWNBEAT shall at all times own the Downbeat URL.
5. TRADEMARK LICENSE.
(a) GRANT. Subject to the terms and conditions of this
Agreement, DOWNBEAT hereby grants to JAMtv for the Term only (as
may be modified, extended or shortened pursuant hereto) an
exclusive, irrevocable, paid-up and royalty-free right and license
to use the Downbeat Trademarks and the Downbeat URL solely in
connection with the Downbeat Website and the JAMtv Music Network
and the design, operation, distribution, display, transmission,
marketing, advertising and promotion of the Downbeat Website.
(b) QUALITY CONTROL. DOWNBEAT shall have the right to
exercise quality control over the Downbeat Content and JAMtv's use
of the Downbeat Trademarks to that degree necessary, in the
reasonable opinion of DOWNBEAT, to ensure a high quality product
consistent with the editorial principles of DOWNBEAT, to maintain
the validity and enforceability of the Downbeat Trademarks and to
protect the goodwill associated therewith. JAMtv shall, in its
design, operation, distribution, display, transmission, marketing,
advertising and promotion of the Downbeat Website, adhere to such
reasonable standards and specifications as shall be provided by
DOWNBEAT to JAMtv from time to time.
(c) TRADEMARK USAGE. JAMtv shall use the
Downbeat Trademarks in accordance with sound trademark and trade
name usage principles and in material compliance with all
applicable laws and regulations of the United States, including
without limitation all laws and regulations relating to the
maintenance of the validity and enforceability of the Downbeat
Trademarks. JAMtv shall use, in connection with the Downbeat
Trademarks, all legends, notices and markings as reasonably
requested by Downbeat. Any use by JAMtv of Downbeat Content and
Downbeat Trademarks shall be approved in final form by Downbeat.
Failure by Downbeat to expressly approve or disapprove JAMtv's use
of Downbeat Content and Downbeat Trademarks within two (2)
business days of Downbeat's receipt from JAMtv of a request for
approval of such
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proposed usage of Downbeat Content and Downbeat Trademarks shall be
deemed acceptance by Downbeat of such usage.
(d) CONFORMANCE WITH STANDARDS. JAMtv shall, upon the
request of DOWNBEAT, submit to DOWNBEAT representative samples of
all publicly distributed advertising materials using the Downbeat
Trademarks prior to their initial distribution. Within two (2)
business days of Downbeat's receipt of the aforementioned
representative samples, Downbeat may disapprove such
representative samples for reasonable cause or basis. Failure by
Downbeat to disapprove such representative samples within two (2)
business days of Downbeat's receipt of them shall be deemed
approval by Downbeat. Such advertising materials and Downbeat
Content included on the Downbeat Website shall reasonably conform
to the standards and specifications provided to JAMtv by DOWNBEAT,
which shall not be more onerous than the standards of quality
associated with DOWNBEAT magazine prior to the Launch Date.
(e) COOPERATION. JAMtv shall comply with such other
reasonable requests as are made by DOWNBEAT to enable DOWNBEAT to
assure the quality of any materials on the Downbeat Website.
JAMtv agrees that it shall cooperate with DOWNBEAT to avoid likely
confusion or conflict arising out of DOWNBEAT's or any other
licensee's simultaneous use of the Downbeat Trademarks in
connection with other products or services outside of the
Interactive Network.
(f) DOWNBEAT URL. Subject to the licenses granted
hereunder, DOWNBEAT shall at all times own the Downbeat URL.
6. ALLOCATION OF CREATIVE AND EDITORIAL CONTROL.
(a) DOWNBEAT. DOWNBEAT shall have creative, editorial,
and quality control over all content of the Downbeat Website
(including the JAMtv Content to the extent provided below) which
shall be subject to the final review and edit of the current
editorial management of DOWNBEAT magazine. Without limiting the
foregoing, the initial layout and design of the Downbeat Website
site (as of the Launch Date) and any subsequent changes thereto
shall be subject to the artistic approval of DOWNBEAT which shall
not be unduly delayed or unreasonably withheld. Downbeat reserves
the right to request JAMtv to remove or disable any image,
description, or advertisement on the Downbeat Website if such
content is deemed by Downbeat in its sole discretion to be
objectionable for any reason. In the event Downbeat so requests,
JAMtv shall, promptly upon demand by Downbeat, remove the
objectionable content.
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(b) JAMTV. Except as set forth in paragraph (a) above,
JAMtv shall have editorial and creative control over the JAMtv
Content contained in the Downbeat Website, subject to paragraph
(d) of Section 5and subject to DOWNBEAT's creative and editorial
control. In the event DOWNBEAT reasonably objects to any JAMtv
Content on the Downbeat Website, DOWNBEAT shall provide JAMtv
notice of its objection and the basis of such objection. JAMtv
shall use commercially reasonable efforts exercised in good faith
and in a timely matter to remove any objectionable JAMtv Content
from the Downbeat Website. JAMtv may use the JAMtv trademarks on
or in connection with the Downbeat Website solely to identify
JAMtv as "producer," "distributor," "syndicator," or "host" of the
Downbeat Website. JAMtv may, in its sole discretion, at any time,
add, modify, change, delete, substitute or reschedule in whole or
in part from time to time any and all aspects of the JAMtv
Content, subject to paragraph (d) of Section 5.
7. PROMOTION AND ADVERTISING.
(a) In accordance with and in consideration of the terms
more particularly described on SCHEDULE 4 attached hereto,
DOWNBEAT will in good faith promote the Downbeat Website, and the
programming contained thereon. Such promotion duties shall
include, without limitation, the preparation and inclusion in
every issue of DOWNBEAT magazine of an editorial column to be
written and edited by DOWNBEAT, as more fully described on
SCHEDULE 4 attached hereto. DOWNBEAT will produce advertising
copy for any commercial messages as DOWNBEAT uses to promote the
foregoing. DOWNBEAT shall submit examples of all proposed
advertisements and other promotional materials for the Downbeat
Website to JAMtv for inspection, provided that DOWNBEAT will have
the final right of approval with respect thereto.
(b) DOWNBEAT shall place an explanation of the Network
Icon and examples of the Network Icon in each issue of DOWNBEAT
magazine, in a manner designed to encourage readers to access the
Downbeat Website. A Network Icon shall be placed at such
locations in the magazine as DOWNBEAT elects in its sole
discretion, provided that at a minimum DOWNBEAT shall place a
Network Icon at the end of the music review section of DOWNBEAT
magazine.
(c) JAMtv and DOWNBEAT shall cooperate in good faith to
jointly develop promotions in the field, on the Downbeat Website,
in DOWNBEAT magazine, and in other publications of DOWNBEAT, which
are designed to increase the visibility, prominence, awareness and
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popularity of the Downbeat Website so as to increase traffic and
attract advertisers to the Downbeat Website.
(d) JAMtv and DOWNBEAT shall cooperate and participate
in the following types of marketing promotions and co-marketing
opportunities: (i) online promotions; (ii) press releases and
public announcements (subject to paragraph (g) of Section 11); and
(iii) reasonable inclusion in the other party's booths,
presentations, presences, and promotions at trade shows,
conferences, conventions, in print and on radio and/or television,
and in marketing materials and advertising campaigns.
(e) The services provided by DOWNBEAT magazine staff in
connection with the advertising and promotional services of
DOWNBEAT described in the preceding paragraphs of this Section
shall be without charge to JAMtv.
8. ADVERTISING, SPONSORSHIP AND MERCHANDISE REVENUE. In consideration for
the DOWNBEAT Licenses and the obligations of DOWNBEAT under this Agreement,
provided no Default by DOWNBEAT exists, JAMtv will pay to DOWNBEAT after
deducting any Recoupable Amounts:
(a) ADVERTISING AND SPONSORSHIP REVENUE. JAMtv shall
pay DOWNBEAT a fee equal to fifty percent (50%) of the Net
Revenues of JAMtv derived from advertisements and/or sponsorships
obtained by, directed by, or otherwise placed on pages of the
Downbeat Website.
(b) MERCHANDISING REVENUE. JAMtv shall pay DOWNBEAT a
fee equal to eighty (85%) of the Net Revenue of JAMtv derived from
Downbeat merchandise sold on pages of the Downbeat Website.
(c) PAYMENT SCHEDULE. Subject to subparagraph (d) below,
the payments set forth in subparagraphs (a) and (b) above will be
due and payable within thirty (30) days following the month in
which Net Revenue giving rise to a payment hereunder was actually
received by JAMtv.
(d) RECOUPABLE AMOUNTS. During the first two years of
the Term of this Agreement, JAMtv will offset its development and
operating expenses relating to the Downbeat Website against
monthly Net Revenues generated from the Downbeat Website at the
rate of $10,000 per month in Year One of the Initial Term and
$12,500 per month in Year Two of the Initial Term. From time to
time, but not more frequently than once each calendar quarter,
DOWNBEAT may request, and within 20 business days of such request
JAMtv shall provide, a statement reasonably identifying its
development and operating costs relating to the Downbeat Website
for the
13
fiscal period requested (which period shall not exceed a one year
period). The parties acknowledge that the offsets contemplated
by this Section are not intended to permit JAMtv to offset its
general overhead and administrative costs against such Net
Revenues. In addition, upon the written consent of DOWNBEAT,
JAMtv shall be entitled to recoup and recover expenses that JAMtv
may incur in securing the right to use the ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ URL
on behalf of DOWNBEAT against Net Revenues generated from
advertising sold on the Downbeat Website; provided, that such
recoupable expenses shall not exceed $5,000 without the specific
consent of Downbeat.
(e) AUDIT. Either party may have its auditors audit the
other's books and records related to payments under this Agreement
only with respect to the proceeding twelve (12) month period not
more than twice in any twelve month period, during business hours
and upon ten (10) business days written notice. Each party agrees
to reimburse the other for the reasonable costs of the audit if
the audit discloses an underpayment of ten percent (10%) or more.
9. TAXES. Each party shall be responsible for any sales, use or
other tax assessed in connection with the merchandise sold, services performed,
licenses granted, or programming made available by such party hereunder.
10. EXCLUSIVITY. JAMtv shall be the exclusive provider of Downbeat
Content on the Interactive Network and DOWNBEAT shall not use and shall not
license, grant any right to use, sublicense, or otherwise transfer any right,
title or interest in or to the Downbeat Content to any other person or entity
for use in connection with the Interactive Network or in the design, operation,
distribution, display, transmission, marketing, advertising, or promotion of
goods and services thereon. JAMtv shall be the exclusive merchandiser of
Downbeat Merchandise on the Interactive Network. DOWNBEAT and JAMtv acknowledge
that from time to time either or both parties may be requested by third parties
to enter into certain promotion, marketing, licensing, and/or advertising
opportunities, which would propose to use certain of the Downbeat Content on the
Interactive Network or certain of the features or functionality of the Downbeat
Website on the Interactive Network, and DOWNBEAT acknowledges that, in
accordance with its exclusivity obligations under this Section above, DOWNBEAT
is prohibited from entering into such third party opportunities without the
written consent of JAMtv. During the term of this Agreement, JAMtv shall not
provide website hosting services to any other off-line magazine publisher of
jazz music editorial content without the prior consent of Downbeat. Downbeat
hereby acknowledges and agrees that the foregoing shall not limit JAMtv's
ability to present music content (other than Downbeat Content) relating to jazz
music and musicians (e.g., music clips, reviews, videos) on the JAMtv Music
Network in a manner substantially similar to how such content is currently
presented or proposed to be presented on the JAMtv Music Network.
14
11. PROPRIETARY RIGHTS.
(a) RIGHTS CLEARANCES. DOWNBEAT shall obtain the
necessary rights clearances and shall be responsible for payment
of any license fees or royalties for such rights clearances,
including, without limitation, copyright or public performance
(including digital performance) music license fees (through, for
example, ASCAP, BMI, SESAC, or RIAA) or any union clearance fees
for any merchandise or Downbeat Content made available by
DOWNBEAT to JAMtv pursuant to this Agreement. JAMtv shall obtain
the necessary rights clearances and shall be responsible for
payment of any license fees or royalties for such rights
clearances, including, without limitation, copyright or public
performance (including digital performance) music license fees
(through, for example, ASCAP, BMI, SESAC, or RIAA) for any content
other than Downbeat Content to be used on the Downbeat Website.
(b) JAMTV CONTENT. DOWNBEAT acknowledges that all
right, title and interest in the JAMtv Content and other
Proprietary Rights embodied therein are and shall remain in JAMtv
and its licensors. DOWNBEAT shall not acquire any right, title,
or interest in the Proprietary Rights created or developed by
JAMtv (whether or not incorporating the Downbeat Content or
Downbeat Trademarks) in connection with this Agreement, other than
as expressly reserved herein. If any JAMtv Content or segment
thereof is provided to DOWNBEAT on disc, tape or other tangible
embodiment, such disc, tape or other tangible embodiment shall
remain the property of JAMtv and shall be returned promptly upon
JAMtv's request therefor. Except as expressly provided in this
Agreement, DOWNBEAT is not authorized to, shall not, and shall not
authorize any access, transmission, duplication, or any other use
whatsoever of any JAMtv Content, any portion thereof, or any
derivative work thereof or any other programs or broadcast
material which may have been transmitted or distributed by JAMtv
to DOWNBEAT, the Downbeat Website or otherwise. DOWNBEAT will not
authorize, cause, permit, or enable any JAMtv Content or portion
thereof to be recorded, stored, duplicated, rebroadcast, or
otherwise transmitted or distributed or used for any purpose.
(c) DOWNBEAT CONTENT. JAMtv acknowledges that all
right, title and interest in the Downbeat Content and other
Proprietary Rights embodied therein are and shall remain in
DOWNBEAT and its licensors. JAMtv shall not acquire any right,
title, or interest in the Proprietary Rights created or developed
by DOWNBEAT (whether or not incorporating the JAMtv Content) in
connection with this Agreement, other than as expressly granted
herein. If any Downbeat Content or segment thereof is provided to
JAMtv on disc, tape or other tangible
15
embodiment, such disc, tape or other tangible embodiment shall
remain the property of DOWNBEAT and shall be returned promptly
upon termination of this Agreement, except as otherwise provided
herein. JAMtv shall not challenge DOWNBEAT's right, title or
interest in the Downbeat Content or otherwise interfere with
DOWNBEAT's use thereof, except as such use may be inconsistent
with any exclusive rights of JAMtv granted pursuant to this
Agreement.
(d) USER DATA. Each party shall be deemed a co-owner of
any data collected from the Downbeat Website, including without
limitation any information provided by or concerning users of the
Downbeat Website. Neither party shall have the right to license,
rent or lease such data to third parties without the consent of
the other.
(e) CONFIDENTIAL INFORMATION. Each party will, to the
extent and in accordance with the policies used to protect its own
information of similar importance, use its best efforts to refrain
from and prevent the use, duplication, or disclosure of during or
after the Term any Confidential Information of the other party,
disclosed or obtained by such party while performing its
obligations under this Agreement, except when such use or
disclosure is for the limited purpose of performing obligations
under this Agreement. Neither party will have an obligation of
confidentiality with regard to any information insofar as the same
(i) was known to such party prior to disclosure; (ii) is at the
time of disclosure publicly available or becomes publicly
available other than as a result of a breach of this Agreement; or
(iii) is disclosed to such party by a third party not under a duty
not to disclose such information. In addition, the
confidentiality obligations set forth above will not apply to any
Confidential Information which is disclosed pursuant to any law of
the United States or any state thereof; the order of any court or
governmental agency; or the rules and regulations of any
governmental agency. Prior to any disclosure required by law or
order of any court or government agency, the disclosing party will
notify the other party of the required disclosure. If the
required disclosure is to be made within ten (10) days after the
disclosing party becoming aware or informed of the obligation to
disclose, the disclosing party will notify the other party by the
end of the next business day following the day the disclosing
party became aware of its disclosure obligation. The parties
agree that an impending or existing violation of any provision of
this Section by one party would cause the other party irreparable
injury for which it would have no adequate remedy at law, and
agree that such other party will be entitled to obtain immediate
injunctive relief prohibiting such violation, in addition to any
other rights and remedies available to it. The nclusion of
copyright notices on any software licensed hereunder does not
constitute publication thereof.
16
(f) DOWNBEAT TRADEMARKS. JAMtv acknowledges that the
Downbeat Trademarks and all rights therein (with the exception of
those rights expressly granted to JAMtv hereunder) and the
goodwill pertaining thereto belong exclusively to DOWNBEAT.
JAMtv's use of the Downbeat Trademarks shall inure to the benefit
of DOWNBEAT for all purposes, including without limitation, any
trademark registration. Without limiting the generality of the
foregoing, JAMtv shall not challenge the validity of DOWNBEAT's
ownership of any Downbeat Trademark or any registration or
application for registration thereof or contest the fact that
JAMtv's rights under this Agreement are those of a licensee.
(g) PUBLICITY. This Agreement constitutes Confidential
Information. Accordingly, each party shall submit to the other
all advertising, written sales promotion, press releases, and
other publicity matters relating to this Agreement in which the
other party's name or trademark is mentioned or language from
which the connection of said name or trademark may be inferred or
implied, and neither party shall publish or use such advertising,
sales promotion, press releases, or publicity matters without the
prior written approval of the other party, which shall not be
unreasonably withheld or delayed. However, either party may
include the other party's name and a mutually agreed factual
description of the work performed under this Agreement in employee
communications, in internal business planning documents, in its
reports to stockholders, and whenever required by reason of legal,
accounting, or regulatory requirements (including SEC regulations,
state blue sky laws, and the rules of public stock exchanges);
provided that prior to such disclosure the party whose name is
mentioned has not less than seven (7) days to review and comment
on such disclosure.
12. REGISTRATION AND PROTECTION.
(a) COPYRIGHT REGISTRATION. Except as otherwise
expressly authorized by DOWNBEAT, all registrations and
applications for registration of copyright in the Downbeat Content
shall be in the name of DOWNBEAT. JAMtv, when requested by
DOWNBEAT, shall assist and cooperate with DOWNBEAT in connection
with any such filings at DOWNBEAT's expense.
(b) ACTIONS AFFECTING VALIDITY. DOWNBEAT shall not take
any action, not fail to take any action, and use its best efforts
not to permit any action to be taken by others, which would in any
respect affect the validity or enforcement of the DOWNBEAT
Licenses or the rights in the Downbeat Content granted to JAMtv
herein.
17
(c) COPYRIGHT NOTICE. JAMtv shall (i) place notices of
copyright in a manner consistent with DOWNBEAT's placement thereof
on the Downbeat Content which is published by JAMtv, (ii)
displaying on one or more screens of any web site operated by
JAMtv a legend reasonably calculated to warn users that such web
site contains proprietary material which may not be copied without
permission, and (iii) display artist attribution or credits as
reasonably requested by DOWNBEAT on the Downbeat Content which is
published by JAMtv.
(d) TRADEMARK REGISTRATION. DOWNBEAT shall be
responsible for the prosecution and maintenance of trademark
registrations of the Downbeat Trademarks. JAMtv shall cooperate
with DOWNBEAT at DOWNBEAT's expense, and shall execute any
documents required by DOWNBEAT and supply DOWNBEAT with a
reasonable number of specimens to assist DOWNBEAT, in the
registration, enforcement, or maintenance of any Downbeat
Trademark or recording of JAMtv as a registered user or licensee.
JAMtv agrees not to register, or attempt to register, any Downbeat
Trademark or any confusingly similar ▇▇▇▇ in its own name or any
other name, or to use any Downbeat Trademark or any confusingly
similar ▇▇▇▇ in commerce other than as provided herein.
(e) THIRD PARTY INFRINGEMENT. If either party discovers
any infringement or misappropriation of (i) any of the Downbeat
Trademarks in connection with the Downbeat Website or similar
products or services, or (ii) any of the Downbeat Content, then
the party with knowledge of such infringement or misappropriation
shall promptly notify the other party thereof. DOWNBEAT shall
take such actions which it determines are reasonably necessary or
desirable in its sole discretion in connection with any
infringement or misappropriation by a third party of any portion
of the Downbeat Content or the Downbeat Trademarks. JAMtv shall
not undertake any action in response to any infringement or
misappropriation of the DOWNBEAT Content without the prior written
consent of DOWNBEAT, which consent shall not be unreasonably
withheld with respect to any infringement or misappropriation of
the Downbeat Content or the Downbeat Trademarks in connection with
the Interactive Network or similar products or services. DOWNBEAT
shall promptly notify JAMtv whether DOWNBEAT wishes to prosecute
or settle any action with respect thereto. JAMtv agrees to
cooperate with and assist DOWNBEAT in taking whatever action
(including consenting to being named as a party to any suit or
other proceeding) which DOWNBEAT determines to be reasonably
necessary to desirable. DOWNBEAT shall reimburse JAMtv for its
reasonable out of pocket attorneys fees and other costs incurred
in connection with investigating, prosecuting, or settling any
such claim, suit, damage, or loss if such fees were incurred at
the request of Downbeat.
18
(f) THIRD PARTY CLAIMS. If any claim is asserted
against either party hereto alleging that any of the Downbeat
Content or Downbeat Trademarks infringes, misappropriates, or
otherwise violates a third party's rights, then the party with
knowledge of such claim shall promptly notify the other party. If
such a claim is asserted against JAMtv, DOWNBEAT shall promptly
notify JAMtv whether DOWNBEAT wishes to conduct a defense or
settlement of any such claim on behalf of JAMtv. Should DOWNBEAT
elect to conduct such a defense or settlement, DOWNBEAT shall be
permitted to control fully the defense and any settlement of such
claim. JAMtv shall afford DOWNBEAT every reasonable assistance in
regard to DOWNBEAT's defense of any such claim and JAMtv may
appear in any such action.
(g) THIRD PARTY INFRINGEMENT OF JAMTV TRADEMARKS OR JAMTV
CONTENT. If either party discovers any infringement or
misappropriation of (i) any of the JAMtv Trademarks in connection
with the Downbeat Website or similar products or services, or (ii)
any of the JAMtv Content, then the party with knowledge of such
infringement or misappropriation shall promptly notify the other
party thereof. JAMtv shall take such actions which it determines
are reasonably necessary or desirable in its sole discretion in
connection with any infringement or misappropriation by a third
party of any portion of the JAMtv Content or the JAMtv Trademarks.
DOWNBEAT shall not undertake any action in response to any
infringement or misappropriation of the JAMtv Content or the JAMtv
Proprietary Rights without the prior written consent of JAMtv.
JAMtv shall promptly notify DOWNBEAT whether JAMtv wishes to
prosecute or settle any action with respect thereto. DOWNBEAT
agrees to cooperate with and assist JAMtv in taking whatever
action (including consenting to being named as a party to any suit
or other proceeding) which JAMtv determines to be reasonably
necessary or desirable.
(h) THIRD PARTY CLAIMS WITH RESPECT TO JAMTV TRADEMARKS
OR JAMTV CONTENT OR JAMTV USE OF PATENTS AND TECHNOLOGY. If any
claim is asserted against either party hereto alleging that any of
the JAMtv Content or JAMtv Trademarks or JAMtv's use of any
technology or patents infringes, misappropriates, or otherwise
violates a third party's rights, then the party with knowledge of
such claim shall promptly notify the other party. If such a claim
is asserted against DOWNBEAT, JAMtv shall promptly notify DOWNBEAT
whether JAMtv wishes to conduct a defense or settlement of any
such claim on behalf of DOWNBEAT. Should JAMtv elect to conduct
such a defense or settlement, JAMtv shall be permitted to control
fully the defense and any settlement of such claim. DOWNBEAT
shall afford JAMtv every reasonable assistance in regard to
19
JAMtv's defense of any such claim and DOWNBEAT may appear in any
such action.
13. REPRESENTATIONS AND WARRANTIES OF DOWNBEAT.
(a) CORPORATE EXISTENCE AND STANDING. DOWNBEAT is duly
organized and existing in good standing under the laws of the
state of Illinois and has all requisite power and authority,
corporate or otherwise, to conduct its business, to own its
property and to execute, deliver and perform all of its
obligations under this Agreement.
(b) AUTHORIZATION AND VALIDITY. The execution and
delivery of this Agreement by DOWNBEAT have been duly authorized
by proper corporate proceedings, and this Agreement, upon their
execution and delivery, will constitute legal, valid and binding
obligations of DOWNBEAT, enforceable in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting the validity or enforcement
of creditors' rights generally.
(c) NO CONFLICT; APPROVALS. The execution, delivery and
performance of this Agreement by DOWNBEAT, the consummation by
DOWNBEAT of the transactions contemplated therein, and compliance
by DOWNBEAT with the provisions thereof (including, without
limitation, its exclusivity obligations hereunder), will not
violate any existing law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on DOWNBEAT or its articles of
incorporation or its bylaws or the provisions of any instrument or
agreement to which DOWNBEAT is a party or is subject, or by which
it, or its property, is bound, or conflict with or constitute a
default thereunder; and the execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated
therein, and compliance with the provisions thereof, in each case
by DOWNBEAT, will not require the consent of any party or the
giving of notice to, the exemption by, any registration, or filing
with any governmental authority, to the extent not previously
obtained or made.
(d) INTELLECTUAL PROPERTY. DOWNBEAT represents and
warrants that (i) it has the full power and authority to grant the
DOWNBEAT Licenses (as limited by the Third Party Restrictions) and
the other rights granted hereunder, (ii) it is not aware of and
has not received any oral or written notice of any claims adverse
to DOWNBEAT's rights in the Downbeat Content or Downbeat
Trademarks, or that the Downbeat Content or Downbeat Trademarks
infringe upon the proprietary rights of any third party, (iii) it
has not granted to any other party any rights to use the Downbeat
Content or Downbeat Trademarks in
20
connection with the Interactive Network, (iv) subject to the Third
Party Restrictions, the exercise of the rights granted JAMtv
hereunder will not now or hereafter in any manner constitute an
infringement or other violation of any trademark, trade name,
service ▇▇▇▇, copyright, trade secret, patent, or other intellectual
property or proprietary rights of any person, or the publicity,
publication, display, attribution, integrity, approval, performance,
moral, or privacy rights of any person or entity and (v) the Downbeat
Content is not obscene.
14. REPRESENTATIONS AND WARRANTIES OF JAMTV.
(a) CORPORATE EXISTENCE AND STANDING. JAMtv is duly
organized and existing in good standing under the laws of the
state of Delaware and has all requisite power and authority,
corporate or otherwise, to conduct its business, to own its
property and to execute, deliver and perform all of its
obligations under this Agreement.
(b) AUTHORIZATION AND VALIDITY. The execution and
delivery of this Agreement by JAMtv have been duly authorized by
proper corporate proceedings, and this Agreement, upon their
execution and delivery, will constitute legal, valid and binding
obligations of JAMtv, enforceable in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting the validity or enforcement
of creditors' rights generally.
(c) NO CONFLICT; APPROVALS. The execution, delivery and
performance of this Agreement by JAMtv, the consummation by JAMtv
of the transactions contemplated therein, and compliance by JAMtv
with the provisions thereof, will not violate any existing law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on JAMtv or its articles of incorporation or its
by-laws or the provisions of any instrument or agreement to which
JAMtv is a party or is subject, or by which it, or its property,
is bound, or conflict with or constitute a default thereunder; and
the execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated therein, and
compliance with the provisions thereof, in each case by JAMtv,
will not require the consent of any party or the giving of notice
to, the exemption by, any registration, or filing with any
governmental authority, to the extent not previously obtained or
made.
(d) INTELLECTUAL PROPERTY. JAMtv represents and
warrants that (i) it has the full power and authority to provide
the JAMtv Content to the Downbeat Website, (ii) it is not aware of
and has not received any oral or written notice of any claims
adverse to JAMtv's rights in the JAMtv
21
Content, or that the JAMtv Content infringes upon the proprietary
rights of any third party, (iii) the use of the JAMtv Content on
the Downbeat Website as contemplated hereunder will not now or
hereafter in any manner constitute an infringement or other
violation of any trademark, trade name, service ▇▇▇▇, copyright,
trade secret, patent, or other intellectual property or proprietary
rights of any person, or the publicity, publication, display,
attribution, integrity, approval, performance, moral, or privacy
rights of any person or entity and (v) the JAMtv Content is
not obscene.
15. CONDITIONS PRECEDENT. The obligations of JAMtv and DOWNBEAT
hereunder shall be subject to the satisfaction of the following conditions
precedent.
(a) JAMTV. JAMtv shall have executed and delivered this
Agreement to DOWNBEAT; and
(b) DOWNBEAT. DOWNBEAT shall have executed and
delivered this Agreement to JAMtv.
16. TERM.
(a) INITIAL TERM. The Initial Term of this Agreement shall
be two (2) years which shall commence on the date
hereof and continue until the second anniversary
date hereof, unless earlier terminated as provided
in Section 18.
(b) OPTIONAL RENEWAL TERM(S) This Agreement may continue
after the Initial Term for Optional Renewal Term(s) upon
the mutual agreement of the parties hereto. Six
months prior to the expiration of the Initial Term,
JAMtv and DOWNBEAT shall begin to negotiate in good
faith in order to determine whether to enter into an
Optional Renewal Term of two (2) years.
17. DEFAULT. As used in this Agreement, "Default" means the
occurrence of any of the following:
(a) JAMTV. JAMtv fails to pay any amounts due under
Section 8 required to be paid to DOWNBEAT hereunder within 30 days
after the date such fee or payment became due hereunder. JAMtv
breaches any of its representations, warranties, covenants or its
other obligations set forth herein and shall not have remedied,
corrected, and/or materially improved its performance or cured
such breach within 30 days after receiving written notice thereof
from DOWNBEAT.
22
(b) DOWNBEAT. Subject to DOWNBEAT's exercise of
its editorial control as set forth in Section 6 of this Agreement,
DOWNBEAT fails to provide any or all of the Downbeat Content in a
timely fashion and in the form and manner specified herein or
breaches any of its representations, warranties, covenants or its
other obligations set forth herein and shall not have remedied,
corrected, and/or materially improved its performance or cured
such breach within 30 days after receiving written notice thereof
from JAMtv.
18. EFFECT OF DEFAULT.
(a) TERMINATION BY JAMTV. JAMtv may terminate this
Agreement if a Default by DOWNBEAT occurs and is continuing, which
termination shall be effective immediately upon written notice to
DOWNBEAT from JAMtv.
(b) TERMINATION BY DOWNBEAT. DOWNBEAT may terminate
this Agreement if a Default by JAMtv occurs and is continuing,
which termination shall be effective immediately upon written
notice to JAMtv from DOWNBEAT.
(c) EFFECT OF TERMINATION. Upon termination of this
Agreement, (i) the DOWNBEAT Licenses shall terminate and JAMtv
shall no longer be entitled to receive from DOWNBEAT any
additional Downbeat Content and shall no longer use any Downbeat
Trademarks and (ii) subject to JAMtv's right to recoupment, JAMtv
shall pay any amounts due and owing to DOWNBEAT pursuant to
Section 8 of this Agreement. In the event that the license is not
renewed, so long as JAMtv has been paid all sums due and owing to
(and/or recoupable by) it from Downbeat, JAMtv shall cooperate
with Downbeat and shall promptly transfer a complete copy of all
of the pages of Downbeat Content from the Downbeat Website and of
all the underlying information to an ISP or other provider
designated by DOWNBEAT within a reasonable time after the
expiration of the license. Nothing in the foregoing shall be
deemed in any way a limitation on JAMtv's right to use of JAMtv
Content, regardless of whether such content was developed
primarily or exclusively for inclusion on the Downbeat Website,
provided that JAMtv does so without referencing DOWNBEAT or using
any of the Downbeat Trademarks.
(d) TERMINATION NOT EXCLUSIVE REMEDY. Termination of
this Agreement by either party hereunder shall not preclude any
other rights or remedies to which such party may be entitled.
19. FORCE MAJEURE. Neither party will have any liability hereunder if
performance by such party shall be prevented, interfered with or omitted because
of labor
23
dispute, failure of facilities, act of God, natural disaster, laws,
government or court action, or any other cause beyond the control of the
party so failing to perform hereunder.
20. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) LIMITATION OF LIABILITY. Neither JAMtv nor DOWNBEAT will be
liable to the other or any third party, under any legal or
equitable theory, for any consequential, incidental, special or
indirect damages of any kind, suffered by or otherwise compensable
to the other, arising out of, under or relating to this Agreement,
whether or not advised of the possibility of such damages. In no
event will either party have any liability of any nature or amount
whatsoever to the other or any third party arising out of, under
or relating to any failure of the distribution of the DOWNBEAT
Content or any part thereof or any software program, software or
web site link or link mechanism, or other material or items
through the JAMtv Music Network or otherwise. Neither party shall
be liable to the other party or any other person or entity for
direct damages in excess of the aggregate fees paid or due and
owing by the parties under this Agreement. The limitations in this
Section 20(a) shall not apply to a party's obligation to indemnify
the other for claims of infringement as provided in Section
20(c)(i)(A) below in the case of JAMtv and in Section 20(c)(ii)(A)
below in the case of Downbeat.
(b) LIMITATION OF WARRANTIES. JAMTV WILL MAKE THE JAMTV
CONTENT, THE JAMTV HOSTING SERVICES, AND OTHER SERVICES AVAILABLE
IN ACCORDANCE WITH THE TERMS HEREOF ON A COMMERCIALLY REASONABLE
BASIS, AND DOES NOT WARRANT OR GUARANTY THAT THE AVAILABILITY
THEREOF WILL BE FREE FROM ERRORS IN COMMUNICATIONS OR
TRANSMISSION. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
JAMTV EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC
PURPOSE. JAMTV DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY
PRODUCT OR SERVICE OF ANY THIRD PARTY OFFERED THROUGH JAMTV AND
WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION
BETWEEN ANY PERSON AND ANY THIRD PARTY PROVIDERS OF PRODUCTS OR
SERVICES.
(c) INDEMNIFICATION.
(i) INDEMNIFICATION BY JAMTV. JAMtv will
indemnify, defend and hold harmless DOWNBEAT and its officers,
directors, employees, agents, successors and assignees, in
accordance with the procedures set forth in subparagraph (iii)
below, from any and all losses, liabilities, damages and claims,
and all related costs and expenses (including reasonable
attorneys' fees and costs) ("LOSSES"), arising from or
24
in connection with (A) any claims of infringement made against
DOWNBEAT of any United States patent, or a trade secret, or any
copyright, trademark, service ▇▇▇▇, trade name or similar
proprietary rights conferred by contract or by common law or by
any law of the United States or of any state, alleged to have
occurred because of the use of JAMtv Content on the DOWNBEAT
Website hereunder, (B) any claims made against DOWNBEAT arising
out of JAMtv's breach of any law, regulation, or contract, or
(C) any claims made against DOWNBEAT arising out of the breach of
any representation, warranty or covenant of JAMtv under this
Agreement.
(ii) INDEMNIFICATION BY DOWNBEAT. DOWNBEAT will
indemnify, defend and hold harmless JAMtv and its officers,
directors, employees, agents, successors and assignees, in
accordance with the procedures set forth in subparagraph (iii)
below, from any and all Losses arising from or in connection with
(A) any claims of infringement made against JAMtv of any United
States patent, or a trade secret, or any copyright, trademark,
service ▇▇▇▇, trade name or similar proprietary rights conferred
by contract or by common law or by any law of the United States or
of any state, alleged to have occurred because of any rights or
resources or items, including without limitation, DOWNBEAT Content
and the Downbeat Trademarks, provided to and the license rights
granted to JAMtv by DOWNBEAT hereunder, (B) any claims made
against JAMtv arising out of DOWNBEAT's breach of any law,
regulation, or contract; (C) any claims made against JAMtv arising
out of the breach of any representation, warranty or covenant of
DOWNBEAT under this Agreement, or (D) any product liability claims
made by any party with respect to the Downbeat Merchandise.
(iii) MATTERS INVOLVING THIRD PARTIES. If any third
party notifies a party hereto (the "INDEMNIFIED PARTY") with
respect to any matter which may give rise to a claim for
indemnification against any other party (the "INDEMNIFYING PARTY")
under this Section, then the Indemnified Party will notify each
Indemnifying Party thereof promptly; PROVIDED, that no delay on
the part of the Indemnified Party in notifying any Indemnifying
Party will relieve the Indemnifying Party from any liability or
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is damaged. If any Indemnifying Party
notifies the Indemnified Party is assuming the defense thereof,
(1) the Indemnifying Party will defend the Indemnified Party
against the matter with counsel of its choice reasonably
satisfactory to the Indemnified Party, (2) the Indemnified Party
may retain separate co-counsel at its sole cost and expense
(except that the Indemnifying Party will be responsible for the
fees and expenses of the separate co-counsel to the extent the
25
Indemnified Party concludes reasonably that the counsel the
Indemnifying Party has selected has a conflict of interest),
(3) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter
without the written consent of the Indemnifying Party which
consent will not be withheld or delayed unreasonably, and (4) the
Indemnifying Party will not consent to the entry of any judgment
with respect to the matter, or enter into any settlement which
does not include a provision whereby the plaintiff or claimant in
the matter releases the Indemnified Party from all liability with
respect thereto, without the written consent of the Indemnified
Party, which consent will not be withheld or delayed unreasonably.
21. MISCELLANEOUS.
(a) GOVERNING LAW. Any question as to the validity,
construction or performance of this Agreement shall be construed
in accordance with and subject to the substantive laws (as opposed
to the conflicts of laws provisions) of the State of Illinois and,
where applicable, the laws of the United States.
(b) JURISDICTION. JAMtv and DOWNBEAT agree that all
claims, disputes, or controversies between them arising out of,
connected with, related to, or incidental to the relationship
established between them in connection with this Agreement,
whether arising at law or equity in contract, tort, equity, or
otherwise, if pursued in court shall be resolved only by state or
federal courts located in ▇▇▇▇ County, Illinois, but each party
hereto acknowledges that any appeals from those courts may have to
be heard by a court located outside of ▇▇▇▇ County, Illinois.
Each party hereto waives in all disputes any objection that it may
have to the location of the court considering the dispute.
(c) UNFORESEEN CIRCUMSTANCES. Due to the rate of change
in Internet businesses and the high degree of uncertainty as to
the competitive environment, the parties agree to use their
reasonable good faith efforts in the event of unforeseen
circumstances or other material external changes which may require
further discussions and negotiations leading to amendments to this
Agreement, if any, to be mutually agreed upon between the parties.
(d) DISPUTE RESOLUTION. All claims, dispute and
controversies of every kind and nature arising out of or in
connection with this Agreement shall be resolved by arbitration in
Chicago, Illinois, in accordance with the rules of the American
Arbitration Association; provided, however, that in any
arbitration, discovery will be allowed as
26
provided by the Federal Rules of Civil Procedure. The determination
of the arbitrator(s) shall be accompanied by a written opinion and
shall be final, binding and conclusive on the parties, and judgment
on the arbitrator's award may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, if interim
judicial relief is necessary prior to rendition of any arbitral award
in order to avoid irreparable injury to either party, then such party
may seek interim measures of protection, including without
limitation orders of injunction, specific performance or other
equitable relief, from any court of competent jurisdiction,
provided that the foregoing shall not be deemed to preclude the
arbitrators from awarding similar or other interim relief or
entering interim arbitration awards. Each party shall bear its
own arbitration costs and expenses, unless the arbitrators, in
consideration of fairness to the parties, determine otherwise.
(e) ENTIRE AGREEMENT. This Agreement contains the
entire understanding between JAMtv and DOWNBEAT with respect to
its subject matter, supersedes all previous oral or written
agreements or understandings between them with respect thereto,
and shall not be modified except by a writing signed by all
parties hereto.
(f) NO WAIVER. No waiver by either party or any breach
of this Agreement by the other shall be deemed to be a waiver of
any preceding, or subsequent breach thereof. Any waiver must be
in writing executed by the waiving party.
(g) PARTIAL INVALIDITY. If any portion of the Agreement
shall be held to be illegal, invalid or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof, and this Agreement shall be
constructed as if such invalid, illegal or unenforceable provision
had never been contained herein. Additionally, in lieu of each
such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar to such former provision as shall be legal, valid and
enforceable.
(h) NOTICES. Except as otherwise expressly provided
herein, all notices and other communications required or desired
to be served, given, or delivered hereunder shall be made in
writing or by a telecommunications device capable of creating a
written record and shall be addressed to the party to be notified
at the respective addresses set forth on the signature page hereto
or, as to each party, at such other address as designated by such
party in a written notice to the other party. Notices shall be
deemed to have been duly given (i) if delivered personally or
otherwise actually received, (ii) if sent by overnight delivery
service, (iii)
27
if mailed by first class United States mail, postage prepaid,
registered or certified, with return receipt requested, or
(iv) if sent by telecopy. Notice mailed as provided in clause
(iii) above shall be effective upon the expiration of seven
(7) days after its deposit in the United States mail and
notice sent as provided in clause (iv) above shall be effective
upon transmission. Notice given in any other manner described in
this paragraph shall be effective upon receipt by the addressee
thereof; PROVIDED, HOWEVER, that if any notice is tendered to an
addressee and delivery thereof is refused by such addressee, such
notice shall be effective upon such tender.
(i) SECTION HEADINGS. Section and Paragraph headings
used herein are for informational purposes only and shall not
define nor limit the provisions of this Agreement. Each use
herein of "including" shall mean a reference to "including,
without limitation," and shall not be exclusive.
(j) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of JAMtv and its successors
and assignees and DOWNBEAT and its successors and assignees
permitted hereunder; provided, however, that neither party hereto
shall assign, subcontract or otherwise delegate its obligations
hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
(k) INDEPENDENT CONTRACTORS. Each party agrees it is
and will be an independent contractor as to the other party and
not an agent, employee, partner or joint venturer of or with the
other party. Without limiting the foregoing, neither party nor
any officer or employee of such will have any right to bind the
other party, to make any representations or warranties on behalf
of the other, to accept service of process, to receive notice, or
to perform any act or thing on behalf of the other party other
than as expressly authorized by such other party in its sole
discretion. JAMtv shall not be obligated to pay any fees or other
compensation to DOWNBEAT in connection with the transactions
contemplated by this Agreement other than as expressly
contemplated by Section 8 of this Agreement.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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[SIGNATURE PAGE TO AFFILIATION AGREEMENT BETWEEN JAMTV CORPORATION AND ▇▇▇▇▇
PUBLICATIONS, INC.]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Affiliation Agreement as of the day and year first above written.
▇▇▇▇▇ PUBLICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Publisher
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
JAMTV CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1
LAUNCH SCHEDULE
-------------------------------
The proposed initial Launch Schedule for the Downbeat Website shall be as
follows:
All of the Launch Schedule Requirements have been met and satisfied as of
the date of execution of this Agreement.
30
SCHEDULE 2
DOWNBEAT CONTENT
-------------------------------
Feature articles, graphics and other content from various sections of
Downbeat magazine;
Reviews, columns, cover art, logos, artwork, illustrations, photos, print
and audio interviews, excerpts, charts, etc. from Downbeat magazine and
archives;
Other select archival material, compilations, special inserts, sections,
etc.;
All material prepared specifically for electronic distribution on the
Downbeat Website;
Access to all DVDs, CDs, videos, tapes, cassettes, etc. supplied to
Downbeat by any artists, labels, promotions, etc. for the purpose of
Website/Internet promotion, advertising, etc, which subject to consents
of holders of intellectual property rights may be used by JAMTV to
create clips and other multimedia assets for digital inclusion in the
Downbeat Website; and
Such other selected music-related material of whatever nature which The
Downbeat obtains, creates, licenses, or otherwise has the right to use,
publish and distribute on the Internet and through its Website.
Exclusive feature stories prepared on a regular basis solely for the
Downbeat Website by the DOWNBEAT magazine staff, with substantial
multimedia components.
The contents of and information contained in concert reviews, record
reviews, artists' questions and answers, artists' picks, college reports,
and any charts, polls (such as readers' and critics' polls) or
compilations contained in DOWNBEAT magazine along with exclusive record
reviews and charts prepared and developed by the DOWNBEAT magazine staff
for the Downbeat Website;
All available photography, audio assets, video assets, art, interviews,
transcripts, digital material, images, illustrations, animations, books,
etc. in the possession and control of DOWNBEAT which may be used to
create new and/or supplementary or repurposed audio/visual and multimedia
material for the Downbeat Website;
All available illustrations, photographs, and artwork contained in
DOWNBEAT magazine, which is in the possession and control of DOWNBEAT
and which may be used to create new and/or supplementary multimedia
material for the Downbeat Website.
31
SCHEDULE 3
DOWNBEAT TRADEMARKS
-------------------------------
DOWNBEAT TRADEMARKS
THE FOLLOWING TRADEMARKS AND SERVICE MARKS AND ALL TRADEMARKS AND SERVICE MARKS
CONTAINING OR DERIVED FROM THE FOLLOWING MARKS:
▇▇▇▇▇▇▇▇.▇▇▇
ALL REGISTRATIONS AND APPLICATIONS FOR REGISTRATION OF THE FOREGOING TRADEMARKS
AND SERVICE MARKS, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING:
APPLICATIONS WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE:
REGISTRATIONS WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE:
32
SCHEDULE 4
PROMOTION AND ADVERTISING AND OTHER OPPORTUNITIES
-----------------------------------------
One or more full page ads for the Downbeat Website in each issue of Downbeat
Magazine.
A regular column or article in each issue of Downbeat Magazine which describes
the contents of and new features and/or additions to the Downbeat Website.
Encode and distribute on a regular basis music programming to be made available
through the Downbeat website (and through our various affiliate networks)
consisting of live streaming audio and video webcasts (and archived
performances) from leading Jazz artists as well as interviews, chat sessions,
special event coverage, etc. on a national and, ultimately, world wide basis.
Use commercially reasonable efforts to promote and drive traffic to the Downbeat
website in and through all media channels, including the Jazz club at Universal
Citywalk in Orlando, so as to increase the advertising and other revenue
opportunities of the website.
To promote the website in connection with the opening of the Downbeat Hall of
Fame in Orlando, Florida. At launch we would like to have artist pages for
all 90 members of the Hall of Fame as well as some pages dedicated to the
Hall of Fame itself. Most of the "archived" content for the site at this
time will be pulled from the already digitized version of the Downbeat 60th
Anniversary Book. At launch there will also be a mechanism in place whereby
people may order subscriptions to Downbeat magazine as well as a number of
Downbeat branded merchandise items. Also cooperate with JAMTV to try to
schedule one or more webcasts in connection with the opening of the Hall of
Fame.
Develop and distribute supplemental print media in support of the Downbeat
website and the live internet webcast performances to be delivered to
users--along with JAMTV Connected CDs in various concert venues throughout
the year, etc.--both on behalf of specific advertisers and as an
advertiser-supported premium give-away and also deliver Connected CDs through
Downbeat magazine.
To develop data and profiling information on all site visitors with associated
databases to permit the development and use of integrated marketing programs
targeted to specific virtual music communities and sectors of the online
population.
33
