LICENSE AGREEMENT
This Agreement is dated as of February 25, 1999 ("Agreement") and is entered
into by and between Dimension Music, Inc., 000 Xxxx Xxxx Xxxxx, Xxxxxxxxxx
Xxxxx, Xxx Xxxx 00000 ("Licensee") and Entertainment Boulevard, Inc., 0000 Xxx
Xxx Xxxxxx Xxxxx 000, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000 ("EBLD").
1. CONTENT AND RECIPROCAL LINKS
EBLD distributes entertainment-related content, including streaming music videos
through a web site located at xxx.xxxxxxxxx.xxx ("EBLD Site"). EBLD hereby
grants to Licensee a royalty-free, non-exclusive license to distribute such
content from the EBLD Site as is mutually agreed by the parties ("Content") on
the Dimension Music web site, located at xxx.xxxxxx.xxx ("Licensee Site").
In consideration for the above, EBLD shall produce, host and serve a co-branded
pop-up window or pop-up windows within the Dimension Music Site (hereinafter
Collectively referred to as "Co-Branded Page") for the distribution of the
Content. The Co-Branded Page is defined as a web page or web pages that contain
both parties' logos, trademarks, tradenames, service marks, and/or content as
mutually agreed upon.
EBLD agrees that the Content shall not be defamatory or knowingly in breach of
any person's rights, including any intellectual property rights, privacy or any
other rights. Licensee shall have the right not to distribute the Content, or
any portion thereof, at any time if in the reasonable opinion of Licensee any of
the above conditions are breached and until EBLD has made the requisite
editorial changes.
Both parties shall have the right to sell and shall use best efforts to sell
advertising and sponsorships on the Co-Branded Page and shall split 50/50 all
revenue received in connection therewith less any third party agency fees or
commissions actually paid in connections with such advertising and sponsorships.
Such advertising shall consist of any of the following: banner ads, corporate
sponsorships, audio, video, or audio/video ads which are broadcast exclusively
through the web site, or any other promotional text, graphic, audio clip or
combination of these which generates revenue in exchange for broadcast over the
web site. EBLD shall have the right to approve all pricing schedules for such
advertising. Such approval shall not be unduly withheld, and EBLD shall respond
to all requests for such approval within three (3) business days. Should
advertising generated by Licensee conflict with advertising generated by EBLD,
advertising generated by EBLD shall take priority, but both parties shall make
all possible efforts to prevent such situation from occurring by informing each
other of all advertising campaigns as they occur.
Each party will account to the other and pay its share of revenue within fifteen
(15) days after the end of each calendar month. Along with such payment, each
party will furnish a written statement reflecting the number of advertising
impressions on, and number of visitors to, the Co-Branded Page during the
applicable month. Any such statement shall be deemed accepted unless (i) the
recipient notifies the sender in writing within eighteen months (18) from the
date of receipt of such statement setting forth specific objections thereto and
(ii) the recipient commences a lawsuit to contest such statement within two (2)
years from the date of receipt of such statement. EBLD or EBLD's designated
representative shall have the right, at Licensee's usual place of business,
during business hours and on reasonable notice to Licensee (but in no event more
than once annually), to examine and copy (provided EBLD keeps such copies
confidential and uses them solely in connection with EBLD'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) Licensee'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 EBLD from what was actually paid,
Licensee shall pay EBLD
the amount of such discrepancy. If such discrepancy is in excess of five
percent (5%) of the amounts actually paid to EBLD, Licensee shall reimburse
EBLD for the cost of such audit.
Conversely, Licensee or Licensee'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 Licensee keeps such copies confidential and uses them solely
in connection with Licensee'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
Licensee from what was actually paid, EBLD shall pay Licensee the amount of such
discrepancy. If such discrepancy is in excess of five percent (5%) of the
amounts actually paid to Licensee, EBLD shall reimburse Licensee for the cost of
such audit.
EBLD and Licensee agree to explore other, non-Internet means of promoting their
Sites and brands.
2. REPRESENTATIONS AND WARRANTIES.
EBLD represents and warrants that it licenses the rights to the Content and that
it has the authority to enter into this Agreement and to fully perform all of
its obligations hereunder. EBLD represents and warrants that the grant of rights
to the Content herein, does not violate the rights of any third parties and will
adhere to applicable Federal, State and Local law and regulation in the
performance of its obligations hereunder. Licensee represents and warrants that
it has the authority to enter into this Agreement and to fully perform its
obligations hereunder, and that it will adhere to applicable Federal, State and
Local law and regulation in the performance of such obligations.
3. TRADEMARK OWNERSHIP AND LICENSE.
EBLD and Licensee will retain all right, title and interest in and to their
respective trademarks, service marks and trade names worldwide, subject to
limited cross-licenses necessary to perform this Agreement. Neither party shall
alter the other party's respective trademarks or other intellectual property
without the other party's express written consent. All references to the other
party's intellectual property shall include the appropriate trademark, copyright
or other legal notices, and shall be subject to the other party's prior written
approval.
4. TERM.
This Agreement shall continue for one (1) year from the last date of execution
of this Agreement. 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.
5. TERMINATION.
Either party may terminate this Agreement if the other party breaches the
Agreement and the breach remains uncured for thirty (30) days (or, if such
breach is not susceptible to cure within thirty (30) days, the breaching party
must initiate steps to cure the breach within said thirty (30) day period and
continue its efforts to cure such breach), unless such breach is caused by the
alteration of a party's trademark or other intellectual property, or failure to
obtain an approval as required in this Agreement, in which case the breaching
party shall have, upon notice, two (2) business days in which to cure. Either
party may terminate this Agreement if the other party is the subject of a
bankruptcy filing which is not dismissed within sixty (60) days. Either party
may terminate this Agreement on thirty (30) days advance written notice to the
other party. This
Agreement shall terminate with no further obligations between the parties
except the confidentiality obligation set out in Paragraph 6 below and the
obligation contained in the next sentence of this Paragraph 5, if either the
Licensee's Site or EBLD Site is removed from the Web and/or ceases operation
for a period of more than two (2) consecutive weeks. Upon any termination,
each party (i) will account to and pay the other party its share of revenues
for all periods prior to the date of termination within thirty (30) days of
termination and (ii) will promptly return to the other party any materials
containing the Content. In addition, Paragraphs 2, 6, 7, 9 and 10 shall
survive termination of this Agreement.
6. 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.
7. INDEMNITY.
Each party will indemnify the other, its parent, subsidiary and affiliated
companies, their employees, officers, directors and agents from third party
claims, losses, causes of action, costs (including reasonable attorney's fees)
arising from the breach of any warranty, representation or covenant in the
Agreement.
8. LIMITATION ON WARRANTY.
Neither party makes any warranty regarding the quality of their goods and
services. Neither party makes any warranty that all errors or failures in their
respective sites will be corrected. The parties expressly disclaim all
warranties of merchantability or fitness for a particular purpose. Beyond the
warranties contained in this paragraph, the parties do not warrant that their
sites are error-free or that operation of their sites will be secure or
uninterrupted.
9. LIMITATION ON LIABILITY.
In no event will either party be liable for any representation or warranty made
to any end user or third party by the other party, or any agent of the other
party. In no even will either party be liable for failure of its network or
support services. These limitations shall survive and apply notwithstanding the
validity of the limited remedies provided for in this agreement. Except for
liability for indemnity, neither party shall have liability for any damages
other than direct damages.
10. DISPUTE RESOLUTION.
Disputes about trademarks, service marks, trade names and confidentiality may be
resolved in court. All other disputes arising out of this Agreement shall be
resolved through mediation and then binding arbitration in accordance with the
rules and procedures of the American Arbitration Association, to take place in
the County of Los Angeles, California.
11. GENERAL.
Neither party may assign or otherwise transfer this Agreement without the other
party's prior written consent. The parties hereto are neither partners nor joint
venturers hereunder, and neither party shall have the power or authority to bind
or obligate the other in any way. This Agreement may not be modified and none of
its terms may be waived, except in writing signed by both parties. This
Agreement shall not be binding until fully executed and delivered to each of the
parties hereto. Neither party's failure or delay to enforce any rights hereunder
shall be
considered a waiver of such rights or a modification of this Agreement. This
Agreement shall be governed by and interpreted in accord with the laws of the
State of California applicable to agreements entered into and to be performed
wholly in California. The parties hereby consent to the exclusive
jurisdiction of any State or Federal court empowered to enforce this
Agreement in the State of California, County of Los Angeles, and the parties
waive any objection thereto on the basis of personal jurisdiction or venue.
This Agreement constitutes the entire understanding between the parties with
respect to the subject matter of this Agreement ad supersedes all prior
agreements.
AGREED TO AND ACCEPTED BY:
DIMENSION MUSIC, INC. ENTERTAINMENT BOULEVARD, INC.
By: /s/ Xxxxxx Sotiracopoulos By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxx Sotiracopoulos Name: Xxxxxxx Xxxxx
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Title: CEO Title: CEO
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Date: 2/25/99 Date: 2/25/99
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