EXHIBIT 10.48
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as
of the 23 day of February, 1999, by and between United Internet Technologies,
Inc., a Delaware corporation ("UIT"), and World Championship Wrestling, Inc., a
Georgia corporation ("WCW"), with reference to the following facts:
A. UIT, together with its affiliates, developed, and UIT owns, all
intellectual property, proprietary and other rights in and to the Internet
related technology described on Exhibit A hereto, together with any and all
improvements or enhancements thereof or additions thereto (the "Technology");
and
B. WCW desires to license from UIT, and UIT is willing to license to WCW,
the Technology, in each case upon and subject to the terms and conditions
provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Warranties. UIT hereby represents and warrants that Paragraph A
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of the recitals above is true and correct. Each party represents and warrants
that it has full power to enter into this Agreement, to carry out its
obligations hereunder, and to grant and/or assign any and all rights granted
and/or assigned herein.
2. Grant of License. UIT hereby grants to WCW, for the term of this
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Agreement, the limited, non-exclusive (except to the extent provided in Section
2 hereof) right and license (the "License") to use the Technology. It is
expressly understood and agreed that the Technology (i) shall be used by WCW
solely in connection with, and that the License pertains exclusively to, WCW`s
Worldwide Championship Wrestling site or sites on the World Wide Web (the
"Website") and the CD-ROM or other discs and software (the "Discs") that will
permit holders thereof access to the interactive features thereof, and (ii)
shall not be used by WCW in any other manner or for any other purpose or
application. WCW further expressly acknowledges and agrees that the Technology,
together with any and all improvements thereon or enhancements thereof or
additions thereto developed during the term of this Agreement (whether developed
by UIT or WCW) constitute confidential, proprietary information of UIT and shall
at all times be and remain the sole property of UIT.
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(a) Restrictions on Use of Technology by UIT. UIT agrees that it will
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not, during the term of this Agreement, use or license the use of the Technology
in competition with WCW in the wrestling business, or to otherwise permit the
use of the Technology by any business or individual in the wrestling business
other than WCW.
(b) Improvements and Enhancements. During the term of this Agreement,
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UIT shall make reasonable commercial efforts to develop improvements and
enhancements to the Technology and shall, as promptly as is commercially
feasible, make such improvements and enhancements available to WCW by CD-ROM or
such other means as the parties reasonably agree upon.
3. Testing and Acceptance of Technology. Within twenty-one (21)
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days of the execution of this Agreement (the "Testing Period") UIT shall: (a)
make available to WCW one or more test applications of the Technology sufficient
to enable WCW to assess whether the Technology materially conforms to the
specifications and description set forth in Exhibit A (the "Specifications");
and (b) if so requested by WCW, send one or more representatives of UIT to WCW's
home offices to cooperate with and assist WCW in such testing on WCW's existing
equipment. The representatives of UIT shall visit WCW's home offices at a time
during the Testing Period to be reasonably agreed upon by the parties. WCW
shall reimburse UIT for all travel, lodging, and other out-of-pocket costs (not
including salaries of UIT's representatives) reasonably incurred by UIT and its
representatives in connection with such visit. WCW shall notify UIT in writing
as soon as possible after the Testing Period, and in no event later than thirty
(30) days after the execution of this Agreement, whether WCW accepts or rejects
the Technology; provided, however, that WCW may only reject such Technology if
WCW reasonably determines that the Technology does not materially conform to the
Specifications. In the event of rejection, WCW shall so notify UIT in writing,
specifying in detail such material nonconformance. As promptly as is
commercially feasible, and in no event later that thirty (30) days following
receipt from WCW of the notice of rejection, UIT shall correct such
nonconformance and deliver to WCW a test application of the Technology which
substantially conforms to the Specifications, whereupon WCW shall have an
additional ten (10) business days after delivery to accept or reject the
Technology pursuant to the foregoing procedure. In the event the redelivered
test application is rejected by WCW pursuant to the foregoing procedure, WCW may
elect to continue the correction and redelivery process or terminate this
Agreement by written notice. In the event of termination by WCW pursuant to the
testing procedure, UIT shall, within thirty (30) days of such termination, and
notwithstanding any other provisions of this Agreement, refund to WCW any
advance on royalty previously paid to UIT pursuant to this Agreement. The
Technology shall be deemed accepted if not
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rejected in writing by WCW within thirty (30) business days after delivery of
the first test application or within ten (10) business days after redelivery of
test applications.
4. Technology and Creative Support Services. The parties recognize
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that in order to facilitate proper use and exploitation of the Technology by
WCW, WCW will require from UIT support services in connection with both the use
and application of the Technology ("Technology Support") and the creation,
design, and implementation of content utilizing the Technology ("Creative
Support"). Accordingly, the parties agree as follows:
(i) Until the earliest to occur (the "Services Change Date") of the
(1) 180th day following the date of this Agreement or (2) completion of WCW's
second master Disc, UIT shall provide to WCW Technology Support and Creative
Support as may be reasonably requested by WCW in order to complete WCW's second
master Disc. Such complete Technology Support and Creative Support shall be
provided by UIT to WCW without charge; provided, however, that WCW shall
reimburse UIT, within 30 days of UIT's written request therefor, for all of
UIT's reasonable out-of-pocket expenses incurred in connection with the
provision of such Technology Support and Creative Support (other than the
salaries of UIT employees) and approved in advance by WCW, including without
limitation, travel, lodging, meals and related expenses in the event that travel
is requested and/or approved by WCW (the "Pre-Services Change Date Expenses").
(ii) After the Services Change Date: (1) UIT shall continue to provide
to WCW without charge such Technology Support as may from time to time
reasonably be requested by WCW, including, without limitation, support related
to the implementation and use of enhancements and improvements to the
Technology; provided, however, that WCW shall reimburse UIT, within 30 days of
UIT's written request therefor, for all of UIT's reasonable out-of-pocket
expenses incurred in connection with the provision of such Technology Support
(other than the salaries of UIT employees) and approved in advance by WCW,
including, without limitation, travel, lodging, meals and related expenses in
the event that travel is requested and/or approved by WCW; and (2) UIT shall
provide to WCW such Creative Support as may be agreed upon by the parties,
subject to such terms and conditions as may be agreed upon by the parties.
5. Delivery of Master Discs and Technology. UIT shall assist WCW in
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the creation of the first two Master Discs and shall provide to WCW, by CD-ROM
or such other means as reasonably agreed upon by the parties, such elements of
the Technology as reasonably necessary for WCW to make the content on the Discs
available to holders of the Discs who access the Website. Upon the completion
of the second master Disc, or at such earlier time as reasonably
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agreed upon by the parties, UIT shall deliver to WCW, by CD-ROM or such other
means as reasonably agreed upon by the parties, all elements of the Technology,
including, without limitation, all coding or other elements reasonably necessary
for WCW to create additional master Discs, to make content on the Discs
available to holders of the Discs who access the Website, and to prevent access
of the content on the Discs only to those holders of the Discs who access the
Website.
6. Royalties. WCW shall pay the following royalty amounts (the
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"Royalties") to UIT in consideration of the License:
(a) 15% of WCW's adjusted gross revenues (i.e., WCW's gross
revenues, reduced by associated commissions payable by WCW) resulting from
banners or similar advertisements and/or sponsorships that are now standard in
the Internet industry and are contained on or made accessible through the use of
the Discs; plus
(b) 20% of WCW's adjusted gross revenues (i.e., as defined above)
resulting from full-screen, full-motion trailers and/or other full-screen, or
full-motion video and/or audio-visual advertisements that are not standard in
the Internet industry and are contained on or made accessible through the use of
the Discs; plus
(c) 15% of WCW`s net revenues (i.e., gross sales minus cost of
goods and fulfillment costs) resulting from merchandise sales which are promoted
on or through access provided by the use of the Discs; plus
(d) Additional royalty payments to be agreed upon in good faith
between the parties, based upon the percentages stated above, for other sources
of revenue that might be generated from the Discs or as a result of access
provided by the use thereof.
7. Payment. WCW shall make payment to UIT as follows:
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(a) WCW shall pay to UIT as a non-refundable advance against
Royalties contemplated by the foregoing paragraph 3 (the "Advance") the total
sum of $200,000 in immediately available funds, as follows: (i) one-half
($100,000) within ten (10) days of the execution of this Agreement; and (ii)
one-half ($100,000) within ten (10) days of acceptance of the Technology by WCW
in accordance with Paragraph 3.
(b) All Royalty payments in excess of the Advance which are
payable by WCW to UIT hereunder shall be paid by WCW to UIT within 45 business
days following the end of each calendar quarter in which the related revenues
are received by WCW. WCW shall provide to UIT, within 10 business days following
the end of
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each calendar month, monthly reports which accurately reflect the computation of
Royalties payable with respect to the preceding calendar month, which reports
shall be certified as true and correct by WCW`s chief financial officer.
(c) WCW agrees to use commercially reasonable efforts throughout
the term hereof to exploit the Technology to generate the Royalties that will be
payable by WCW to UIT hereunder. WCW further agrees that UIT (together with its
representatives) shall have the right, from time-to-time upon reasonable advance
notice by UIT, to audit all books and records pertaining to the Royalties (and
the revenues and expenses upon which they are based) for purposes of verifying
that WCW is in compliance with its Royalty payment obligations hereunder. In the
event that any such audit reflects that WCW has not paid at least 85 per cent of
all Royalties owing, WCW shall reimburse UIT for all expenses incurred by UIT in
connection with such audit. Otherwise, such expenses shall be borne by UIT. WCW
agrees to cooperate fully with UIT in connection with any such audit.
8. Indemnity. Each party (the "Indemnifying Party") shall
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indemnify, defend and hold harmless the other party (and its parent,
subsidiaries and affiliates), and the respective officers, directors and
employees thereof, from and against all costs, damages, claims (threatened or
actual) and expenses (including, without limitation, reasonable attorneys' fees
and allocations for in-house counsel) which may arise or derive in any way from
the Indemnifying Party's breach of any of its duties, obligations,
representations or warranties under this Agreement. Without limiting the
foregoing, the parties hereby further agree that: (a) UIT's obligations
hereunder to indemnify, defend and hold harmless shall include, but shall not be
limited to, any claims or actions based on an assertion that the Technology or
the use thereof by WCW infringes or violates any patent, copyright, trademark,
trade secret or other intellectual property right of any third party; and (b)
WCW's obligations to indemnify, defend, and hold harmless shall include, but
shall not be limited to, any claims or actions based on any assertion that any
video, text, graphics or other content distributed by WCW (provided that such
content is not furnished to WCW by UIT) libels, defames, or violates the rights
of privacy and/or publicity of any third party. UIT agrees to maintain
insurance covering its obligations hereunder to indemnify, defend and hold
harmless WCW in an amount of at least two million dollars ($2,000,000) per
occurrence, with deductible per occurrence no greater than two hundred thousand
dollars ($200,000) and to provide proof of such coverage to the WCW upon
reasonable request.
9. Non-Disclosure. Each party acknowledges that by virtue of its
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relationship to the other party under this Agreement it will have access to
certain information and materials concerning the other party's business, plans,
customers, products and
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technology, including but not limited to the Technology, WCW's business records
and plans, and the terms of this Agreement, that are confidential and of such
substantial value to such party ("Information"), which value would be impaired
if such Information were disclosed to third parties. Each party agrees to
maintain all information received from the other, both orally and in writing, in
confidence and agrees not to disclose or otherwise make available such
Information to any third party without the prior written consent of the
disclosing party, except as is expressly permitted by the provisions of this
Agreement. The parties' obligations of non-disclosure under this Agreement shall
not apply to any information which: (i) is or becomes a matter of public
knowledge through no fault of or action by the receiving party; (ii) was
rightfully in the receiving party's possession prior to disclosure by the
disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the
receiving party from a third party who is lawfully in possession of such
Information without restriction; (iv) is independently developed by the
receiving party without resort to Information which is confidential under this
Agreement; or (v) is required by law or judicial order, provided that prior
written notice of such required disclosure is furnished to the disclosing party
as soon as is practicable in order to afford the disclosing party an opportunity
to seek a protective order. The obligations of confidentiality shall survive the
termination of this Agreement.
10. Term. The term of this Agreement shall be for a period of three
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years, commencing on the date hereof; provided, however, that WCW shall be
entitled to terminate this Agreement at the end of any one-year period during
the term hereof by written notice to UIT given by WCW to UIT at least 30 days
prior to such year end. Additionally, either party shall be entitled to
terminate this Agreement upon 30 days' advance written notice to the other in
the event of any material breach by such other party of its obligations
hereunder which is not cured within such 30-day period. For a period of one
year following the effectiveness of any such termination (the "Extended Term"),
WCW shall be entitled, at its discretion, to use the Technology solely for the
purpose of allowing holders of Discs created during the Term to access the
content thereon. During the Extended Term, WCW shall not use the Technology for
the distribution of new Discs or other content. Upon the effectiveness of any
termination, WCW shall, at its expense, promptly deliver to UIT all
documentation or other items embodying the Technology or portions thereof
relating to the creation of new Discs or other content (or, at the request of
UIT, destroy the same); and immediately cease all use of the Technology except
as set forth above. Upon the expiration of the Extended Term, WCW shall, at its
expense, promptly deliver to UIT all remaining items embodying the Technology or
portions thereof (or, at the request of UIT, destroy the same). Termination of
this Agreement shall not affect any party's obligations, rights or
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remedies hereunder, which, by their nature, are intended to survive. By way of
illustration only, WCW shall continue to have the obligation to pay Royalties to
UIT in respect of all Discs disseminated by WCW prior to the effectiveness of
termination.
11. Miscellaneous.
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(a) Notices. Except as either party may hereafter notify the
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other with respect to itself, the addresses of the parties for all purposes of
this Agreement shall be:
UIT: United Internet Technologies, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx, President
with a copy to: Xxxxxxx, Xxxxxxxx, Xxxx, Chizever & Xxxxxxxx
0000 Xxxxxxxx Xxxx., Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
WCW: Worldwide Championship Wrestling
0000 Xxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to: Xxxxxx Entertainment Group Legal Department
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Xx., Esq.
All notices, requests, consents, waivers and other communications pursuant to
this Agreement (collectively "Notices") shall be in writing and addressed as set
forth above or to such other address as the addressee may have specified in a
Notice duly given to the sender as provided herein. Such Notice shall be
delivered to the party for whom intended by facsimile (with a copy delivered by
one of the other methods described herein), by hand or by postage prepaid, first
class, registered or certified mail, return receipt requested. Such Notices
shall be deemed to have been given and delivered as of the date of receipt or
the date delivery is refused.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California.
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(c) Attorneys' Fees. Should any party be required to bring legal
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action (including arbitration) to enforce its rights under this Agreement, the
prevailing party in such action shall be entitled to recover from the losing
party its reasonable attorneys' fees and expenses in addition to any other
relief to which it is entitled.
(d) Entire Agreement. No party has made any representations,
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warranties, covenants or promises relating to the subject matter of this
Agreement except as expressly set forth herein, and any prior agreements or
understandings not specifically set forth herein shall be of no force or effect.
This Agreement constitutes the entire agreement of the parties relative to the
subject matter hereof.
(e) Interpretation. The parties agree that each party has been
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represented by legal counsel of its own selection and jointly participated with
the other in the drafting of this Agreement; and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
The headings of the sections of this Agreement are inserted for convenience of
reference only and shall not affect the meaning or interpretation of this
Agreement.
(f) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such a manner as to be enforceable under applicable law.
However, if any provision of this Agreement shall be deemed unenforceable under
applicable law pursuant to Section 7(l) below or by a court having jurisdiction,
such provision shall be unenforceable, without invalidating the remainder
thereof or any of the remaining provisions of this Agreement.
(g) Binding Agreement. This Agreement shall be binding upon, and
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inure to the benefit of, WCW and UIT and their respective successors and
assigns; provided, however, that, neither WCW nor UIT may assign any right or
obligation arising pursuant to this Agreement without first obtaining the
written consent of the other party.
(h) Modification. No course of performance or other conduct hereafter
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pursued, accepted or acquiesced in, and no oral agreement or representation made
in the future, by WCW or UIT, whether or not relied or acted upon, shall (i)
modify or terminate this Agreement, or (ii) impair or otherwise affect any
obligation, right or remedy of WCW or UIT pursuant to this Agreement.
(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and
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the same instrument. Any party may execute this Agreement by facsimile signature
and the other party shall be entitled to rely on such facsimile signature as
evidence that this Agreement has been duly executed by such party. Any party
executing this Agreement by facsimile signature shall immediately forward to the
other party an original signature page by overnight mail.
(j) Additional Acts. The parties agree to perform such further acts
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and to execute, acknowledge and deliver such further documents as may be
necessary to effectuate the purposes of this Agreement.
(k) Waiver. The failure of any party, at any time, to require timely
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performance by any other party of any provision of this Agreement shall not
affect such party's rights thereafter to enforce the same, nor shall the waiver
by any party of any breach of any provision of this Agreement, whether or not
agreed to in writing, be taken or held to be a waiver of the breach of any other
provision or a waiver of any subsequent breach of the same provision of this
Agreement. No extension of time for the performance of any obligation or act
hereunder shall be deemed to be an extension of time for the performance of any
other obligation or act hereunder.
(l) Arbitration. Any controversy, dispute or claim arising out of or
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in connection with or relating to this Agreement, or the breach, termination,
validity or interpretation hereof or any good faith negotiation or transaction
contemplated hereby (any such controversy, dispute or claim being referred to as
a "Dispute") shall be resolved exclusively by arbitration conducted in Los
Angeles, California in accordance with the Commercial Arbitration Rules then in
force (the "AAA Rules") of the American Arbitration Association (the "AAA"),
unless the parties shall mutually agree to use an entity or group other than AAA
for arbitration of a Dispute. In the event that AAA is used for arbitration of
a Dispute, the following procedures shall apply. There shall be a panel of
three arbitrators who shall be appointed pursuant to AAA procedure, in each
case, within 15 business days after receipt of the demand for arbitration by the
respondent(s) in any such proceeding. A final award shall be rendered as soon
as reasonably possible, and, in any event, within 90 days following appointment
of the panel of arbitrators; provided, however, that if the arbitrators
determine by majority vote that fairness so requires, such 90 day period may be
extended by no more than 60 additional days. The parties agree that the
arbitrators shall have the right and power to shorten the length of any notice
periods or other time periods provided in the AAA Rules and to implement
expedited procedures under the AAA Rules in order to ensure that the arbitration
process is completed within the time frames provided herein. The arbitration
decision or award shall be reasoned and in writing. Judgment on the decision or
award
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rendered by the arbitrators may be entered and specifically enforced in any
court having jurisdiction thereof. Notwithstanding the provisions of this
Section 7(l), any arbitration held pursuant to the provisions of this Section
7(l) shall be governed by the Federal Arbitration Act and the California Code of
Civil Procedure. All arbitrations commenced pursuant to this Agreement while any
other arbitration hereunder shall be in progress shall be consolidated and heard
by the initially constituted panel of arbitrators. Notwithstanding anything to
the contrary set forth above in this Section 7(l), UIT shall, in addition to all
of its other rights and remedies hereunder, be entitled to enforce its rights
under this Agreement in respect of the Technology, or any misuse, threatened
misuse, prohibited disclosure, or threatened prohibited disclosure thereof by
WCW, by seeking permanent and/or interim injunctive relief in any court of
competent jurisdiction in the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
UIT: WCW:
United Internet Technologies, Inc., World Championship Wrestling, a
a Delaware corporation Georgia corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxx
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Its: President Its: President
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EXHIBIT A
DESCRIPTION AND SPECIFICATIONS OF TECHNOLOGY
The UIT Technology is used in providing Internet and Intranet websites with
zero-wait time, full-motion, full-screen video (30 frames per second video, the
same standard as standard television broadcasts), with stereo audio to the
interactive audience. Unlike various forms of streaming video, live media and
Internet video broadcasts, the Technology does not rely on bandwidth as the
medium for delivery of video. The Technology permits a website to be protected
with time-lock security, thereby enabling the website operator to allow end
users to access full-motion, full-screen audio and video (or particular portions
thereof selected by the website operator) only while on the website and for the
specific period of time selected by the website operator and incorporated into
the time-lock security code.
The Technology consists of the following components:
1. Parallel Addressing Video (PAV)
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Parallel Addressing Video is a technology that enables the user to select
and call up video on a remote computer over a network without prior knowledge of
the remote computer configuration. The current design is for use with removable
media such as CD-ROM or DVD discs. The technology allows a hyperlink to be
placed within a web page that upon selection (a click of the mouse) sends a
small file to the remote computer. The associated software uses information
contained in this small file to identify the "address" on the disc. The
"address" is broken down into a specific disc volume label and the specific name
of the file contained on it. It can identify the volume label, and, if not
present, will prompt the user to insert the disc into any available drive. From
the point of insertion, the disc can then be located and the media file found.
This technology can also play audio files.
2. Dynamic Interactive Video Overlay (DIVO)
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Dynamic Interactive Video Overlay is a technology whereby the user is able
to place video within a computer user's Internet web-browser window. The video
is filmed using blue/green screen technologies and this is then placed on
background footage, graphics, etc. that has been designed to integrate with the
web page design. This allows a designer to overlay a small video on a web page
and have the full-screen appear to be a video. This technology requires less
space on a disc, thereby allowing more
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high-quality footage to be placed on a disc at one time. The web browser appears
as a full-screen video that is interactive with hyperlinks, etc.
PAV and DIVO can be changed or updated by re-addressing any video file at
any time from UIT's mainframe server.
3. Server Side Key Generator Program
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Server Side Key Generator Program ("SSKGP") is designed to protect the
videos from being viewed by users not connected to the web site. The
application resides on the web server. It follows the "CGI" web standards used
for intercommunication between the web server and the external applications of
the Technology. SSKGP is designed to work with the Unix operating system and
with Netscape Enterprise Web Server; however, the application can be customized
to work with any operating system and/or other web servers. The application
will have the capability to create security keys based on time. Therefore, the
end user will only be able to utilize the video while they are connected to the
Internet and only for specific amounts of time. UIT can program the security
time period(s) as required by the website operator, or will provide the operator
with the ability to do so. Thus, for example, a video can be programmed to be
played for 10 minutes after it has reached the user computer, after which the
player will not play it again.
4. Video (DIVO/PAV) Creation Program
---------------------------------
This software is designed to create the proprietary files used by the video
player. The application is compatible with Windows 95, Windows 98 and Windows
NT computer. Its purpose is to convert the video from the MPEG standard video
format to the encoded/encrypted format used with security features. It creates
the proprietary support files distributed on the CD-ROM and via the web server
to the end users.
5. ULI Video Player
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This application enables the end user to open and play DIVO and PAV files
within the browser while connected to the website server ( subject to any
limitations programmed by the website operator). The ULI Video Player is
compatible with Internet Explorer versions 3.0 and higher, and Netscape
Navigator 3.0 and higher.
6. Year 2000 Compliance
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All applications developed by United Internet Technologies are Year 2000
Compliant. For purposes of the Agreement, Year 2000 Compliant means that,
without interruption or manual intervention, the Technology will perform all
functions required by this
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Agreement with no diminution or change in performance, functionality, accuracy
or otherwise through 1999 and following December 31, 1999, and through and
following February 29, 2000 and all subsequent leap days.
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