Exhibit 10.12
COLLEGE BROADCAST/ENTERTAINMENT BOULEVARD AGREEMENT
This is an agreement dated as of August 4, 1999, between Entertainment
Boulevard, Inc., a Nevada corporation located at 0000 Xxx Xxx Xxxxxx Xxxxx 000,
Xxxxxx Xxx Xxx, XX 00000 ("EBLD"), and College Broadcast, Inc. ("CB"), a Limited
Liability corporation located at 000 Xxxxxxxxxxx Xxx., Xxxxxx, XX 00000. In
consideration of the mutual premises and undertakings stated herein and Exhibit
A attached hereto and made a part hereof, the parties hereto agree as follows
(the "Agreement"):
1. TRADEMARKS
1.1 CB IDENTITIES ON EBLD SITE. CB hereby grants to EBLD a
non-exclusive, cost-free license (without the right of sublicense) throughout
the Term of this Agreement to use the CB name and logo and other proprietary
identities of CB (collectively, "CB Xxxx(s)") in connection with the EBLD
multimedia player (the "Player") which is displayed on CB (defined below),
solely as stated in Exhibit A.
1.2 EBLD IDENTITIES ON CB SITE. EBLD hereby grants a non-exclusive
cost-free license (without the right of sublicense) throughout the Term of this
Agreement to CB to use the EBLD name and logo and other proprietary identities
of EBLD (collectively, "EBLD Xxxx(s)") in connection with CB's website called
"XxxxxxxXxxxxxxxx.xxx" ("XxxxxxxXxxxxxxxx.xxx") currently located at
xxxx://xxxxxxxxxxxxxxxx.xxx, solely as stated in Exhibit A.
2. CONTENT
2.1 LICENSE. EBLD hereby grants a non-exclusive cost-free license
(without the right of sublicense) throughout the Term of this Agreement to CB
to use the certain content owned and/or controlled by EBLD, as described on
Exhibit A (collectively, "EBLD Content") in connection with CB, solely as
stated on Exhibit A. CB will not (a) permit another entity, other than EBLD,
to broadcast streaming content that competes with the content served on the
Co-Branded Player on XxxxxxxXxxxxxxxx.xxx, or (b) establish any direct
hypertext links between XxxxxxxXxxxxxxxx.xxx and the site of an EBLD
competitor.
2.2 CREATION OF CONTENT. Each party will be responsible for the
creation, development and publication of its respective Content. The parties
will consult regularly regarding creation of mutually beneficial Content.
Neither party will use the Content of each other's site in any way whatsoever
without the other party's prior approval.
2.3 QUALITY CONTROL. Each party agrees to maintain the quality of the
content of its site to at least the same level as has existed heretofore. If
either party, in its reasonable discretion, determines that the content of the
other party's site falls below this pre-existing standard of quality and does
not otherwise meet the editorial standards and quality of its own site, that
party will notify the other party to that effect in writing giving specific
details of the failure to meet such standards and the party receiving that
notice will remedy the deficiencies specified in such notice within 30 days
after the date of its receipt of that notice. If, following such 30-day period,
the quality of the applicable site has not sufficiently improved, the party that
gave the original notice may terminate the Agreement effective immediately upon
the receipt by the other party of notice of termination.
2.4 LIMITATION OF RIGHTS. Each party's use of the other party's Marks
and Content, as well as the use of the any links described on Exhibit A, is
strictly limited to the uses stated in this Agreement. Neither party acquires
any rights in or to the other party's Marks and/or the goodwill inherent therein
by this Agreement or otherwise. All rights granted under this Agreement,
including the right to use the other party's Marks or Content, or to link to the
other party's Content shall revert to the granting party upon termination.
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3. FINANCIAL
3.1 PRODUCTION EXPENSES. Each party will be solely responsible for its
own expenses incurred in undertaking its rights and responsibilities under this
Agreement and otherwise in operating its website.
3.2 ADVERTISING
(a) RETAINED RIGHTS. Each party will have the right to
continue to transact advertising and promotional
programs for its own website, to retain all
advertising inventory and set all packaging and
pricing for any advertising thereon and to retain all
revenue it receives related thereto. No such
arrangements by a party can allow for any third-party
use of the other party's Marks or Content without the
prior written approval of that other party.
Notwithstanding the foregoing, the parties hereby
acknowledge and agree that EBLD shall have the
exclusive right to transact advertising and
promotional programs related to, to retain all
advertising inventory and set all packaging and
pricing for any advertising on any co-branded pages
and Players developed pursuant to this Agreement.
(b) PAYMENTS. EBLD shall pay to CB with respect to all
advertising revenues generated a sum equal to that
percent of the gross revenues actually received on
behalf of the Player hereunder. For the purposes
hereof, the Revenue Split will be as follows: EBLD
50%, CB 50%.
(c) Payment Schedule. EBLD shall pay CB its share of
revenue within fifteen (15) days after EBLD receives
payment from its advertising agency, approximately
every thirty (30) days. Along with such payment, EBLD
will include a written statement reflecting the
number of visitors to the Player during the
applicable pay period.
(d) AUDITS. CB or CB's designated representative shall
have the right, at EBLD's usual place of business,
during business hours and on reasonable notice to
EBLD (but in no event more than once annually), to
examine and copy (provided CB keeps such copies
confidential and uses them solely in connection with
CB's audit rights hereunder, in any proceeding
hereunder, or in any necessary business disclosures
to a third party subject to such third party's
agreement to retain such confidentiality) EBLD's
books and records to confirm the accuracy of any such
statements not otherwise deemed accepted. In the
event that such audit reveals a discrepancy in the
amounts owed CB from what was actually paid, EBLD
shall pay CB the amount of such discrepancy. If such
discrepancy is in excess of five percent (5%) of the
amounts actually paid to CB, EBLD shall reimburse CB
for the cost of such audit.
(e) NO INTERSTITIALS. Neither party will transmit any
so-called "interstitial advertising" to users as they
link from CB to the Player or vice-versa.
(f) CUSTOMER DATA. CB shall own and retain all right,
title and interest in all names, addresses and other
identifying information of users of CB, including,
without limitation, any co-branded pages developed
hereunder and EBLD will have no right to use any such
customer data.
3.3 PRODUCT SALES. EBLD will offer Player users the opportunity to
purchase products through EBLD's deal with XxxxxXxx.xxx ("CO") as follows:
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(a) LINKS. The Player will include a button to link to CO
in a mutually agreed upon design.
(b) ORDER PROCESSING. CO will process product orders
placed by customers who follow these links from the
Player to the CO site. CO reserve the right to reject
orders that do not comply with any requirements that
CO periodically may establish. CO will be responsible
for all aspects of order processing and fulfillment,
including without limitation: preparing order forms;
processing payments, cancellations, and returns; and
handling customer service. CO will track sales made
to customers who purchase products using the links
from the Player to the CO site and will send EBLD
reports summarizing this sales activity.
(c) CUSTOMER DATA. CO shall own and retain all right,
title and interest in all names, addresses and other
identifying information of users of XxxxxXxx.xxx.
(d) REFERRAL FEES. EBLD will pay CB referral fees on
qualified product sales to third parties. For a
product sale to generate a referral fee, the customer
must follow a link (in a format specified by CO) from
the Player to the CO site; purchase a qualified
product using CO's automated ordering system; accept
delivery of the product at the shipping destination;
and remit full payment to CO. CO will not, however,
pay referral fees on any products that are added to a
customer's Shopping Cart after the customer has
re-entered CO's site (other than through a link from
the Player), even if the customer previously followed
a link from the Player to the CO site. Products that
are entitled to earn referral fees under the rules
set forth above are hereinafter referred to as
"Qualifying Products."
(e) FEE SCHEDULE. Referral fees will be earned based on
the sale price of Qualifying Products (as defined
above), according to the fee schedule set forth
below. As used below, "sale price" means the sale
price listed in CO's catalog, and excludes costs for
shipping, handling, gift-wrapping, and taxes. The
established base fee schedule is four percent (4%).
(as per your conversation with Xxxx, the 4% is a
percentage of XxxxxXxx.xxx's sale price. of the sale
price for sales of Qualifying Products. EBLD will pay
referral fees on a quarterly basis. Approximately
thirty (30) days following the end of each calendar
quarter, EBLD will send CB a check for the referral
fees earned on Qualifying Products that were shipped
during that calendar quarter, less any taxes
withheld. However, if the fees payable to CB for any
calendar quarter are less than $100.00, those fees
will be held until the total amount due is at least
$100.00 or until this Agreement is terminated. If a
product that generated a referral fee is returned by
the customer, the corresponding fee will be deducted
from the next payment. If there is no subsequent
payment, a xxxx for the fee will be sent.
(f) POLICIES AND PRICING. Customers who buy products
through CO will be deemed to be CO's customers.
Accordingly, all CO rules, policies, and operating
procedures concerning customer orders, customer
service, and product sales will apply to those
customers. CO will determine the prices to be charged
for products sold under this Program in accordance
with CO's pricing policies. Product prices and
availability may vary from time to time.
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(g) PROMOTIONS AND INCENTIVES. During the Term of the
Agreement, CO will provide special promotions to EBLD
users at least six (6) times per year. These
promotions will be mutually agreed upon by EBLD and
CO and will be provided to CB users as well.
4. APPROVALS
4.1 PRIOR APPROVAL REQUIRED. All uses by either party of the other
party's Marks and Content and links to each other's Content must be submitted to
and approved by the other party prior to their use, with such approval not to be
unreasonably withheld. Failure to so seek and receive prior approval will be
grounds for immediate termination of this Agreement, and such termination right
will not constitute a waiver of any other rights available to a party as a
result thereof.
4.2 NO PUBLICITY WITHOUT CONSENT. Neither party will issue or permit
issuance of any press release regarding the other party or this Agreement
without prior coordination with and approval by the other party.
5. TERM
5.1 TERM. This Agreement shall be effective as of the date of the
launch of the College Broadcast launch, tentatively scheduled for on or before
September 15, 1999, and will continue for one (1) year (the "Term"). The Term
shall be automatically renewed for additional one (1) year increments unless
either party notifies the other at least thirty (30) days prior to the
expiration of the then-current Term that it does not wish to renew the Term of
the Agreement. Both parties shall have the right to terminate this Agreement
upon thirty (30) days written notice during the first three months of the Term.
5.2 EARLY TERMINATION. Each party shall have the right to terminate
this Agreement immediately on notice: (a) upon a breach of any material
obligation hereunder by the other party other than those specified in section
4.1, if such breach is not cured within 30 days following the date the breaching
party receives notice from the non-breaching party describing in reasonable
detail the elements of such breach; (b) in the event the other party becomes
insolvent (I.E., unable to pay its debts in the ordinary course as they come
due); or (c) pursuant to sections 4.1 or 5.1 above.
5.3 EVENTS UPON TERMINATION. Upon the expiration or termination of this
Agreement for any reason, both parties shall immediately remove all links to the
other party's Content and website(s) and cease all use of the other party's
Marks and any and all use of any kind whatsoever of the other party's Content.
5.4 SURVIVAL. Sections 2.4, 4.2, 7 and 8 will survive the termination
or expiration of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
Each party to this Agreement represents and warrants to the other that:
(a) such party has all necessary right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
(b) the execution of this Agreement by such party and its performance
of its obligations hereunder do not and will not violate any agreement
by which such party is bound; (c) such party has (and will have
throughout the Term) all necessary rights in and to its Marks, content
links and Content described in this Agreement to allow it to make those
indicia and materials available to the other party and users of that
party's website (including, without limitation, the Player) as
contemplated by this Agreement without violating the rights of any
third party; and (d) it has (and will have
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throughout the Term) all necessary rights in and to all underlying
technology (including both hardware and software) utilized in
connection with its website (including, without limitation, the
Player) and all such underlying technology does not infringe on any
patent, copyright, trademark, trade secret or other intellectual
property or proprietary right of any third party.
7. INDEMNIFICATION
7.1 MUTUAL INDEMNIFICATION. Each party hereby agrees to indemnify and
hold harmless the other party, its parent and subsidiary companies and
their respective officers, agents, directors, employees and authorized
representatives from and against any costs, losses, liabilities and
expenses, including court costs, reasonable expenses and reasonable
attorney's fees that any of them may suffer, incur or be subjected to
by reason of any legal action, arbitration or other claim by a third
party arising out of or as a result of a breach of the indemnifying
party's representations and warranties made hereunder, the operations
of the indemnifying party's website (including, without limitation the
Player) as authorized by this Agreement or otherwise, any allegations
that the use of the indemnifying party's Marks, Content, links and/or
content on its website (including, without limitation, the Player)
violates any intellectual property rights of any third party, any
allegation that any content on its website (including, without
limitation, the Player) is defamatory or violates any privacy or
publicity rights of any third party, and/or any of its other
obligations under this Agreement.
7.2 INDEMNIFICATION PROCEDURES. If either party entitled to
indemnification hereunder (an "Indemnified Party") makes an
indemnification request to the other, the Indemnified Party shall
permit the other party (the "Indemnifying Party") to control the
defense, disposition or settlement of the matter at its own expense;
provided that the Indemnifying Party shall not, without the consent
of the Indemnified Party enter into any settlement or agree to any
disposition that imposes an obligation on the Indemnified Party that
is not wholly discharged or dischargeable by the Indemnifying Party,
or imposes any conditions or obligations on the Indemnified Party
other than the payment of monies that are readily measurable for
purposes of determining the monetary indemnification or
reimbursement obligations of Indemnifying Party. The Indemnified
Party shall notify Indemnifying Party promptly of any claim for
which Indemnifying Party is responsible and shall cooperate with
Indemnifying Party in every commercially reasonable way to
facilitate defense of any such claim; provided that the Indemnified
Party's failure to notify Indemnifying Party shall not diminish
Indemnifying Party's obligations under this Section except to the
extent that Indemnifying Party is materially prejudiced as a result
of such failure. An Indemnified Party shall at all times have the
option to participate in any matter or litigation through counsel of
its own selection and at its own expense.
8. CONFIDENTIALITY. The terms and conditions of this Agreement shall be
strictly confidential. All information about the development of the
EBLD Site and the development and launch of the Co-Branded Page
disclosed to Licensee, its officers, directors, employees and/or agents
shall be treated as confidential. All information about the development
of the Licensee Site and the development and launch of the Co-Branded
Page disclosed to EBLD, its officers, directors, employees and/or
agents shall be treated as confidential. Such confidentiality is of the
essence to this Agreement.
9. GENERAL
9.1 COSTS. Each party shall be responsible for all costs and expenses
incurred by it in connection with the performance of its obligations
under this Agreement.
9.2 ASSIGNMENT. None of the rights and obligations of the parties to
this Agreement may be assigned by either party, except (a) to the
transferee of substantially all of the
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business operations of such party (whether by asset sale, stock sale,
merger or otherwise) or (b) to any entity that is controlled by, or
is under common control with, such party.
9.3 RELATIONSHIP OF PARTIES. This Agreement does not create a joint
venture, partnership or principal/agent relationship between the
parties hereto, nor imposes upon either party any obligations for any
losses, debts or other obligations incurred by the other party except
as expressly set forth herein.
9.4 ENTIRE AGREEMENT. This Agreement states the entire agreement
between the parties with respect to its subject matter and supersedes
any prior oral or written agreements. This Agreement may not be amended
except in writing signed by both parties.
9.5 APPLICABLE LAW. This Agreement will be construed according to the
laws of the State of California, without regard to principles of
conflicts of law.
9.6 INVALIDITY OF PROVISIONS. If any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, in whole or in
part, then the parties will be relieved of all obligations arising
under such provision, but only to the extent that it is illegal,
unenforceable, or void, it being the intent and agreement of the
parties that this Agreement be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable
while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable
and achieves the same objectives.
9.7 NOTICE. Any notice due by one party to the other will be given to
the address listed above and marked to the attention of the signatory
specified below, unless a party hereafter designates a successor
address or contact person. All notices will be transmitted by private
courier or facsimile transmission, and will be deemed given as of the
date of a written courier's receipt or electronic facsimile
confirmation report.
ACKNOWLEDGED AND AGREED ACKNOWLEDGED AND AGREED
ENTERTAINMENT BOULEVARD, INC. COLLEGE BROADCAST, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxx
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Title: CEO Title: Executive Vice President
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EXHIBIT A - DESCRIPTION OF LICENSED CONTENT
CO-BRANDED ENTERTAINMENT BOULEVARD/COLLEGE BROADCAST MUSIC VIDEO PLAYER
This framed music video player will be promoted from the CB homepage. EBLD will
serve a co-branded framed music video player as follows:
a) Branded as "College Broadcast Top Ten Videos, presented by Vidnet," or
such wording as is mutually agreed upon.
b) The Player will feature a to be determined number of videos and will be
updated regularly by EBLD. The videos will be available in 28k, 56k,
80k, and 300k transfer rates, or through any mutually agreed upon
technology that becomes available during the Term.
c) Links from CB open co-branded Vidnet/College Broadcast framed music
video Player, with streaming content and Player pages served by EBLD.
ADDENDUM TO EXHIBIT A OF
COLLEGE BROADCAST/ENTERTAINMENT BOULEVARD AGREEMENT
Entertainment Boulevard, Inc. ("EBLD") hereby grants College Broadcast ("CB")
the right to use the Entertainment Boulevard Movie Trailer Player (defined
below) on College Broadcast (xxx.xxxxxxxxxxxxxxxx.xxx) under the terms and
conditions of the agreement between Entertainment Boulevard, Inc. and College
Broadcast dated as of July __, 1999.
DESCRIPTION OF LICENSED CONTENT
CO-BRANDED ENTERTAINMENT BOULEVARD/COLLEGE BROADCAST MOVIE TRAILER PLAYER
This framed movie trailer player will be promoted from the CB homepage. EBLD
will serve a co-branded framed movie trailer player as follow:
a) Branded as "College Broadcast Movie Trailers, presented by
Entertainment Boulevard," or such wording as is mutually agreed upon.
b) The Player will feature a to be determined number of movie trailers
and will be updated regularly by EBLD. The trailers will be available
in 28k, 56k, 80k, and 300k transfer rates, or through any mutually
agreed upon technology that becomes available during the Term.
c) Links from CB open the co-branded Entertainment Boulevard/College
Broadcast framed movie trailer Player, with streaming content and
Player pages served by EBLD.
ACKNOWLEDGED AND AGREED ACKNOWLEDGED AND AGREED
ENTERTAINMENT BOULEVARD, INC. COLLEGE BROADCAST, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxx
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Title: CEO Title: Executive Vice President
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