BOLT/EBLD AGREEMENT
This is an agreement dated as of July 26, 1999, between Entertainment
Boulevard, Inc., a Nevada corporation located at 0000 Xxx Xxx Xxxxxx Xxxxx 000,
Xxxxxx Xxx Xxx, XX 00000 ("EBLD"), and Bolt Media, Inc. ("Bolt"), a ___________
_________________ corporation located at 000 Xxxxxx, 0xx Xxxxx X., Xxx Xxxx, XX
00000. In consideration of the mutual promises 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 BOLT IDENTITIES ON EBLD SITE. Bolt hereby grants to EBLD a
non-exclusive, cost-free license (without the right of sublicense) throughout
the Term of this Agreement to use the Bolt name and logo and other proprietary
identities of Bolt (collectively, "Xxxx Xxxx(s)") solely in connection with the
EBLD multimedia player (the "Player") which is displayed on Bolt (defined
below), as stated in Exhibit A.
1.2 EBLD IDENTITIES ON BOLT SITE. EBLD hereby grants a non-exclusive
cost-free license (without the right of sublicense) throughout the Term of this
Agreement to Bolt to use the EBLD name and logo and other proprietary identities
of EBLD (collectively, "EBLD Xxxx(s)") in connection with Bolt's website called
"Xxxx.xxx" ("Xxxx.xxx") currently located at xxxx://xxxx.xxx, solely as stated
in Exhibit A.
2. CONTENT
LICENSE. EBLD hereby grants a non-exclusive cost-free license (without the right
of sublicense) throughout the Term of this Agreement to Bolt to use the
certain content owned and/or controlled by EBLD, as described on
Exhibit A (collectively, "EBLD Content") in connection with Bolt,
solely as stated on Exhibit A. There is no exclusivity granted to
either party under the terms and conditions of this contract.
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.
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.
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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.
(b) Each party will have the right to transact advertising and
promotional programs within the Player. Bolt will serve the ads
in the Player through Bolt's DART technology and will provide
EBLD with access to the DART technology, only in connection to
the ads served on the Player. Bolt will provide all advertising
unless EBLD transacts advertising within the player. Bolt shall
have the right to refuse to serve ads sold by EBLD, but this
approval will not be unnecessarily withheld. All advertising
revenue will be recorded by Xxxx.xxx in accordance with
generally accepted accounting principles and 50% of the
advertising revenue be paid to EBLD as a content fee according
to the schedule outlined below. For the purposes hereof, the
revenue split for all advertising transacted within the Player
will be as follows: Bolt: 50%, EBLD: 50%.
(c) PAYMENT SCHEDULE. Each party will account to the other and
pay its share of revenue within forty-five (45) days after the
end of each calendar month. Along with such payment, each party
will furnish to the other a written statement reflecting the
following: EBLD will provide Bolt with the number of visitors
to the Player during the applicable month.
(d) AUDITS. EBLD or EBLD's designated representative shall
have the right, at Bolt's usual place of business, during
business hours and on reasonable notice to Bolt (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) Bolt'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, Bolt 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, Bolt shall reimburse EBLD for
the cost of such audit. Conversely, Bolt or Bolt'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 Bolt keeps such copies confidential and uses
them solely in connection with Bolt'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 Bolt from what was actually
paid, EBLD shall pay Bolt the amount of such discrepancy. If
such discrepancy is in excess of five percent (5%) of the
amounts actually paid to Bolt, EBLD shall reimburse Bolt for
the cost of such audit.
(e) NO INTERSTITIALS. Neither party will transmit any
so-called "interstitial advertising" to users as they link from
Bolt to the Player or vice-versa.
(f) CUSTOMER DATA. Bolt shall own and retain all right, title
and interest in all names, addresses and other identifying
information of users of Bolt, including, without limitation,
any co-branded pages developed hereunder and EBLD will have no
right to use any such customer data.
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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. When executed by the parties, this Agreement is effective as
of the date specified above and will continue for six (6) months (the "Term").
The Term shall be automatically renewed for up to three additional six (6) month
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.
5.2 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 section 4.1 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 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
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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 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 New York, without regard to principles of
conflicts of law.
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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. BOLT MEDIA, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx Xxxxxx
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Name: Xxxxxxx Xxxxx Name: X.X. Xxxxxx
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Title: CEO Title: CEO
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EXHBIT A - DESCRIPTION OF LICENSED CONTENT
CO-BRANDED EBLD/BOLT MUSIC VIDEO INDEX PAGE/POP-UP PLAYER
This video index page would be promoted from the Index page of the Bolt Music
section. EBLD will serve a co-branded pop-up Player as follows:
a) The player will be branded in some way in which "presented by Vidnet"
appears on it.
b) The Player will feature approximately one hundred music videos and
will be updated weekly by EBLD and Bolt. The videos will be available
in 28k, 56k, 80k, and 300k transfer rates.
