Memorandum of Understanding BETWEEN LIVE CURRENT MEDIA INC. AND BOARD OF CONTROL FOR CRICKET IN INDIA for and on behalf of INDIAN PREMIER LEAGUE FOR DEVELOPMENT AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
Exhibit 10.2
____________________________________________________________________________________
Memorandum
of Understanding
____________________________________________________________________________________
BETWEEN
LIVE CURRENT MEDIA INC.
AND
BOARD
OF CONTROL FOR CRICKET IN INDIA for and on behalf of
INDIAN
PREMIER LEAGUE
FOR
DEVELOPMENT
AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
CONTENTS
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DEVELOPMENT
AND LAUNCH OF WEB PORTAL & RIGHTS THEREIN
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1
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1.
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TERMS
OF UNDERSTANDING
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1
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2.
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CONFIDENTIALITY
& EXCLUSIVITY
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6
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3.
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CONTENT
AND SUPPORT FROM BCCI-IPL
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6
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4.
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OTHER
CONSIDERATIONS
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9
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5.
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FINAL
AGREEMENT
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10
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SCHEDULE
1
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10
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SCHEDULE
2
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10
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2
This
legally binding Memorandum of Understanding (“MOU”) is entered into on
this 16th day of April 2008.
BETWEEN
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(1)
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LIVE CURRENT
MEDIA Inc.,
having its principal office at Suite 000, 000 Xxxxx Xx., Xxxxxxxxx, XX,
XXXXXX, X0X 0X0 (hereinafter referred to as “Live Current Media”,
which expression shall, unless repugnant to the context thereof, mean and
include its successors and assigns) of the FIRST
PART;
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AND
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(2)
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BOARD OF CONTROL FOR CRICKET IN
INDIA, a society registered under the Tamil Nadu Societies
Registration Act, 1860, having its principal office at Brabourne Stadium,
(North Stand), Veer Nariman Road, Churchgate, Mumbai 400020, for and on
behalf of its Separate Sub-Committee Unit known as Indian Premier League
(hereinafter referred to as “BCCI-IPL”), which
expression shall, unless repugnant to the context thereof, mean and
include its successors and permitted assigns) of the LAST
PART.
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WHEREAS
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A.
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BCCI-IPL
is desirous of promoting the Indian Premier League (“IPL”) and the game of
cricket across India and other parts of the globe and wishes to operate
and maintain an official website for the
IPL.
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B.
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LIVE
CURRENT MEDIA has approached BCCI-IPL and expressed its willingness to
fulfil the aforesaid desires of BCCI-IPL of promotion of cricket by
building and operating "The IPL Website” at its sole risk, costs and
consequences.
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C.
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BCCI-IPL
has agreed to authorise LIVE CURRENT MEDIA to , design, build, operate,
maintain and promote the IPL Website as the official website of the Indian
Premier League and the sole website sanctioned as such by BCCI-IPL
(hereinafter referred to as “The IPL
Website”).
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D.
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BCCI-IPL
has agreed to support LIVE CURRENT MEDIA in operating The IPL Website in
the manner provided in this MOU.
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BCCI-IPL
and LIVE CURRENT MEDIA are individually referred to as the “Party” and collectively
referred to as the “Parties”.
IT
IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
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1.
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TERMS
OF UNDERSTANDING
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1.1.
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LIVE
CURRENT MEDIA undertakes to design, build, operate, host and
maintain the IPL Website in accordance with highest industry
standards, using its experience in developing engaging commercially
successful web properties, as well as its cutting-edge knowledge of
emerging Internet technologies and to promote the IPL Website, all at its
sole risk as to costs and consequences in the manner provided in this MOU
and the Final Agreement to be entered into between LIVE CURRENT MEDIA and
BCCI-IPL as provided in Clause 5 of this MOU. Each Party will bare the
risks for the content and materials that they provide to “The IPL Website”
on the terms set out in this MOU.
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3
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1.2.
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LIVE
CURRENT MEDIA will provide hosting services in respect of the IPL Website
in accordance with a service level agreement, which shall contain, inter
alia, minimum levels of technical support and site availability, such
service level agreement to be agreed between the Parties and included in
the Final Agreement.
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1.3.
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LIVE
CURRENT MEDIA will further:
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i)
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maintain
the IPL Website;
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ii)
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develop
and enhance the IPL Website on an ongoing basis and the Parties shall
cooperate throughout the Term in connection with the
same;
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iii)
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manage
and coordinate the technical integration of all Internet based
applications and opportunities that are to be included within the IPL
Website during the Term
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each in
accordance with the core services to be set out in full in the Final
Agreement.
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1.4.
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BCCI-IPL
will facilitate and provide support to LIVE CURRENT MEDIA in building,
operating, maintaining and promoting the IPL Website and promoting the
Indian Premier League itself as outlined in Clause 3 of this MOU and as
otherwise may reasonably be requested by LIVE CURRENT MEDIA from time to
time.
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1.5.
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LIVE
CURRENT MEDIA will construct a web portal at XXXXXXX.XXX (the "XXXXXXX.XXX Portal") as
'the gateway to Indian Cricket', providing an integrated user experience
between it, the IPL Website and the BCCI Website. This does not
mean that non-Indian cricket content will not be placed on the XXXXXXX.XXX
Portal.
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1.6.
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LIVE
CURRENT MEDIA shall ensure that there will always be a substantive link to
the IPL Website on the front page of the Live Current Media’s Xxxxxxx.xxx
website
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1.7.
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The
IPL Website will be “powered by xxxxxxx.xxx” and this will be prominantly
displayed on the home page of the IPL Website. There will
always be a substantive link to the Xxxxxxx.xxx Portal on the home page of
The IPL Website.
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1.8.
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BCCI-IPL
shall:
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i)
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appoint
LIVE CURRENT MEDIA to design, build, host, operate, maintain and promote
the IPL Website;
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ii)
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grant
LIVE CURRENT MEDIAthe exclusive right to designate the IPL Website as the
“Official Website of the Indian Premier League” or such other “official”
designation as may be agreed between the Parties from time to
time;
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iii)
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grant
to LIVE CURRENT MEDIA(a) the right to use BCCI-IPL content on the IPL
Website (on an exclusive or non-exclusive basis as specified herein)
and (b) the licence set out in Clause 4.1 of this MOU;
and
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4
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iv)
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promote
the IPL Website and the Xxxxxxx.xxx Portal and provide LIVE CURRENT MEDIA
with the assistance set out herein
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In each
case for a period commencing on execution of the Final Agreement and ending on
31 December 2018 (the “Term”)
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1.9.
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The
Parties agree that the renewal of the Final Agreement for a further term
of 10 years (“Renewal”) will be mutually agreed upon by the Parties with
discussions starting at least 180 days prior to the end of the Term and
subject to the following
conditions:
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i)
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LIVE
CURRENT MEDIA shall have the right of first and last refusal over the
Renewal to work as follows:
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a)
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LIVE
CURRENT MEDIA shall have the option to bid on the Renewal, which bid must
be irrevocable.
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b)
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If
Live current Media bid is not accepted, BCCI-IPL shall have the right to
solicit bids from other potential partners.
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c)
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Before
BCCI-IPL accepts any third party bid for the Renewal, LIVE CURRENT MEDIA
will have the right to match such third-party bid and shall be granted the
Renewal if it matches such bid.
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d)
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Throughout
this process, BCCI-IPL shall not reveal any information about the LIVE
CURRENT MEDIA bid in anyway
whatsoever
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ii)
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If
the Parties do not agree on a Renewal for Live Current Media then the
following will occur:
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a)
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LIVE
CURRENT MEDIA will take ownership over the entire customer database as
built up on the IPL Website over the TERM of the
agreement
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b)
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BCCI-IPL
shall pay LIVE CURRENT MEDIA 1.5 times the content production costs for
the IPL Website that LIVE CURRENT MEDIA incurred during the original Term
of the Final Agreement (as specified in the financial statements and
agreed by the Parties)
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c)
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There
will be a 12 month transition period to the third party provider to ensure
the IPL Website continues to function, with Live Current Media offering
all reasonable cooperation during this transition period to BCCI-IPL and
such third party provider. BCCI-IPL shall pay all pre-agreed
costs incurred by LIVE CURRENT MEDIA during this transition
period
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d)
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LIVE
CURRENT MEDIA will retain a non-exclusive right to make available on the
Internet the video and photo archives of the IPL matches that occurred
during the Term, subject to the parties agreeing a term and a fair price
for the grant of these non-exclusive
rights.
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5
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1.10.
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In
consideration of the appointment of LIVE CURRENT MEDIA and the rights
granted to LIVE CURRENT MEDIA under this MOU and the Final Agreement, LIVE CURRENT MEDIA
will pay BCCI-IPL a fee amounting to
50% of all Revenues (as defined below) generated from the IPL Website per
annum. Provided however, LIVE CURRENT MEDIA shall ensure that
the minimum fee paid to BCCI-IPL for each year of the IPL Website shall be
as set out in the table below (each a “Minimum Annual Fee”). To
avoid any confusion, the payment made will be the greater of (i) the
Minimum Annual Fee (as set out below) and (ii) 50% of the Revenues for
that year ("Fee").
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Minimum
Annual Fee to
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BCCI-IPL
($ 000s)
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Year
1 (2008)
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US$
1,500
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Year
2 (2009)
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US$
2,000
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Year
3 (2010)
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US$
2,000
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Year
4 (2011)
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US$
2,000
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Year
5 (2012)
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US$
2,000
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Year
6 (2013)
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US$
2,000
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Year
7 (2014)
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US$
2,000
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Year
8 (2015)
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US$
2,000
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Year
9 (2016)
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US$
2,000
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Year
10 (2017)
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US$
2,500
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Total
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US$
20,000
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For the
purposes of this MOU:
“Revenues” shall include all
revenues generated from the IPL Website and from any IPL content, including
Merchandise Revenues (as defined below) but excluding for the avoidance of doubt
revenues generated from IPL match ticket sales even where the website selling
tickets is accessed via a link on the IPL Website, which revenues accrue
exclusively to BCCI-IPL and its official ticket partners. LIVE
CURRENT MEDIA may however negotiate an affiliate deal with the official ticket
partners, which shall be the subject of a separate agreement.
“Merchandise Revenues” shall
mean the revenues generated from sales of merchandise directly from the IPL
Website calculated as follows:
Retail
price (excluding cost of delivery and any applicable taxes) minus wholesale
price = Merchandise Revenue.
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1.11.
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In
consideration of the rights granted to LIVE CURRENT MEDIA under this MOU
and the Final Agreement, LIVE CURRENT MEDIA
will pay BCCI-IPL a fee amounting to
5% of all Revenues (as defined above) generated from Live Current Media’s
Xxxxxxx.xxx website (or any replacement thereof) per
annum.
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1.12.
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All
amounts due under this MOU and the Final Agreement (including without
limitation the Minimum Annual Fee and any Additional Fees) must be paid by
LIVE CURRENT MEDIA free and clear of, and without, deductions based on any
currency control restrictions, import duties, or any sales, use, value
added or other taxes or withholdings of any nature
whatsoever. If LIVE CURRENT MEDIA is required to make any
deduction or withholding in respect of any taxes, imposts, duties or other
such charges in respect of any payment due under the
Final Agreement, LIVE CURRENT MEDIA shall gross up the relevant
amount to ensure that BCCI-IPL receives by the relevant payment date the
full cash amount that it would otherwise have been entitled to receive had
no such deduction or withholding been
made.
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6
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1.13.
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LIVE
CURRENT MEDIA shall have the option to prepay some or all of the Minimum
Annual Fees at anytime during the Term of the agreement. The
amount to be prepaid will be calculated using an annual discount rate of
12.5%. Prepayment will have the following
impacts:
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i)
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The
required Bank Guarantee as set out in 1.14 will be reduced by the
proportion of the Minimum Annual Fee that has been prepaid. So
for example if 100% of the Minimum Annual Fees are prepaid then the Bank
Guarantee requirement goes away. If 50% of the
Minimum Annual Fees are prepayed then the required amount of
the Bank Guarantee shall be reduced by
50%
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ii)
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The
revenue share as set out in 1.10 will remain however LIVE CURRENT MEDIA
will receive credit for the Minimum Annual Fee repayment. So
for example if LIVE CURRENT MEDIA prepays all of the Minimum Annual Fee
and the Minimum Annual Fee was due to be $2 million in the year then the
revenue share will commence after $4 million in revenues and shall be
50/50 at that point. If for example LIVE CURRENT MEDIA had
prepayed 50% of the Minimum Annual Fees and the Minimum Annual Fee was due
to be $2 million in the year then the first $1 million would be paid to
BCCI-IPL, the next $3 million would go to LIVE CURRENT MEDIA and then the
revenue share shall commence at the 50/50 level for all incremental
revenues.
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1.14.
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It
shall be a condition of this MOU and the Final Agreement that, for the
purpose of securing Live Current Media’s obligation to pay the Minimum
Annual Fee, LIVE CURRENT MEDIA shall deliver to BCCI-IPL an irrevocable
and unconditional Bank Guarantee (in a format and from a bank agreed with
BCCI-IPL) on a rolling basis to guarantee the Minimum Annual Fee for one
year on an on-going basis in respect of the season and by the due dates
set out below:
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i)
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Bank
Guarantee for Year 1 in the amount of the aggregate total Minimum Annual
Fees for Year 1 within 7 days of execution of the Final Agreement and the
Bank Guarantees for subsequent year’s Minimum Annual Fees shall be
delivered to BCCI-IPL by no later than 31 December of the year preceding
the year covered by the guarantee (so the Bank Guarantee for Year 2 (2009
season) shall be delivered by no later than 31 December
2008).
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ii)
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For
the avoidance of doubt, it shall be Live Current Media’s responsibility to
ensure that at any given time in the Term there is a valid, effective and
binding Bank Guarantee in place guaranteeing one year of the Minimum
Annual Fee.
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1.15.
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Listed
below are the key deliverables:
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i)
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The
Parties will set up a joint committee (“Facilitation
Committee”), which will comprise of such number of LIVE CURRENT
MEDIA representatives and BCCI-IPL representatives as may be agreed upon
by the Parties. The Facilitation Committee will be chaired by a nominee of
the BCCI or such other person as agreed between the Parties. It
is agreed that the chair of the Facilitation Committee shall not have a
casting vote on any issue.
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ii)
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The
payment schedule set out in clause 1.10 and detailed in Schedule 2 may be
subject to review by the Facilitation Committee from time to time, but it
is accepted that the payment schedule may only be varied with the written
agreement of both Parties.
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iii)
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All
costs and expenses including travel, stay and other incidental and related
costs/fees payable in relation to the IPL Website shall be borne by the
party incurring the expenses. Each party shall bear their own respective
costs in relation to the drawing up of the MOU and the Final Agreement
with respect to the IPL Website.
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7
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iv)
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LIVE
CURRENT MEDIA shall bear all losses, liabilities, risks, etc. of
whatsoever nature that may be suffered in relation to the IPL Website and
the LIVE CURRENT MEDIA Portal, save where such losses, liabilities, risks,
etc. (a) relate to content that has been provided to LIVE CURRENT MEDIA by
(or on behalf of) BCCI-IPL (unless the content is altered or amended by
LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for the
purpose it was provided) or (b) are otherwise attributable to any breach
by BCCI-IPL of this MOU. BCCI-IPL shall not in any manner be liable,
subject to or held responsible for, and LIVE
CURRENT MEDIA shall indemnify BCCI-IPL against, any costs,
expenses, losses, liabilities, risks, suffered by BCCI-IPL in relation to
content contained on the IPL Website, except for content that has been
provided by (or on behalf of) BCCI-IPL (unless the content is altered or
amended by LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for
the purpose it was provided) for use on the same and/or in the event of
gross misconduct or otherwise due to any breach by BCCI-IPL of this
MOU.
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v)
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BCCI-IPL
shall bear all losses, liabilities, risks, etc. of whatsoever nature that
may be suffered in relation to content provided by it or on its behalf to
LIVE CURRENT MEDIA for use on the IPL unless the content is altered or
amended by LIVE CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for
the purpose it was provided. LIVE CURRENT MEDIA shall not any in manner be
liable, subject to or held responsible for, and BCCI-IPL shall indemnify
LIVE CURRENT MEDIA against, any costs, expenses, losses, liabilities,
risks, suffered by LIVE CURRENT MEDIA in relation to content contained on
the IPL Website that has been provided to LIVE CURRENT MEDIA by (or on
behalf of) BBCI-IPL (unless the content is altered or amended by LIVE
CURRENT MEDIA or used by LIVE CURRENT MEDIA other than for the purpose it
was provided).
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vi)
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LIVE
CURRENT MEDIA shall submit annual statements of the income, expenditure
and the Bank Account relating to the IPL Website and (as applicable) the
income of the LIVE CURRENT MEDIA Xxxxxxx.xxx Portal arising from IPL
content to the Facilitation Committee by no later than 31
January for the preceding Year of the Term and the books of accounts shall
not be finalized without the same being audited by independent auditors
appointed jointly by BCCI-IPL and Live Current Media, at Live Current
Media’s cost if any. All such books of accounts shall be safely
maintained by LIVE CURRENT MEDIAfor 6 years after expiry or earlier
termination of this MOU or the Final Agreement, whichever is
later.
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vii)
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LIVE
CURRENT MEDIA shall provide BCCI-IPL with regular reports on the building
of the IPL Website, and in any event not less than twice per annum.
BCCI-IPL may, at its discretion, review the progress and plans on the IPL
Website rollout and it is agreed that the IPL Website shall only be
launched/promoted/operated after prior written approval of
BCCI-IPL (not to be unreasonably withheld or delayed).
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viii)
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The
following rollout schedule is currently
anticipated:
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ix)
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It
shall be a condition of this MOU and the Final Agreement that LIVE CURRENT
MEDIA shall pay BCCI-IPL the Fee as
follows:
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a)
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For
the initial three years, Live Current Media will pay the Minimum Annual
Fee on a quarterly basis. For the avoidance of doubt this
payment will occur within 30 days of the quarterly
timetable. The initial quarterly payment will be due October
1st 2008. After the first three years the Minimum Annual Fee
will be paid on a bi-annual basis. Schedule 2 details the
payment amounts and timing over the Term of the
agreement.
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8
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b)
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LIVE
CURRENT MEDIA will make a further payment to BCCI-IPL of any additional
share of the Revenues that is due to BCCI-IPL in excess of the Minimum
Annual Fee (“Additional Fee”) within 60 days of the acceptance of the
annual audited financial statements should there be an
adjustment.
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c)
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Time
shall be of the essence of all payments of the Minimum Annual Fee and any
Additional Fee and if LIVE CURRENT MEDIA fails to pay any amount due under
this MOU and the Final Agreement by the relevant due date, BCCI-IPL shall
be entitled but not obliged to charge LIVE CURRENT MEDIA interest on the
overdue amount from the due date up to the date of actual payment at the
rate of 12.0% per annum
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x)
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LIVE
CURRENT MEDIA will manage, co-ordinate and execute all aspects of the IPL
Website rollout including funding and cash flow management subject to the
provisions of this MOU.
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xi)
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LIVE
CURRENT MEDIA must obtain the prior written approval of BCCI-IPL for the
domain name used for the IPL Website and for every use of the IPL logo and
every use of names and/or logos of any IPL sponsors, partners or
franchises.
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xii)
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LIVE
CURRENT MEDIA shall provide the editorial content for the IPL Website and
shall ensure that BCCI-IPL will have the right, through its
representatives on the Facilitation Committee or otherwise, to participate
in the editorial process and review the content of the IPL Website from
time to time prior to publication. LIVE CURRENT MEDIA will not include
content on the IPL Website and will remove content from the IPL Website
based on any reasonable requests from BCCI-IPL.
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xiii)
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LIVE
CURRENT MEDIA shall comply with the reasonable instructions of BCCI-IPL in
relation to the placement of official IPL commercial partners’ names
and/or logos (including without limitation those of the IPL title sponsor
and other official sponsors) it being acknowledged by BCCI-IPL that such
instructions shall not materially detrimentally affect the ability
of to maximise revenues generated by advertising and
sponsorship on the same.
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2.
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CONFIDENTIALITY
& EXCLUSIVITY
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2.1.
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The
Parties agree that “Confidential Information” shall mean confidential
information in whatever form disclosed by one Party to the other pursuant
to or in connection with this MOU, and shall include, but not be limited
to, the terms and conditions of this MOU and any drafts hereof, the Final
Agreement and any drafts thereof, any correspondence relating to this MOU
and/or the Final Agreement, concepts, trade-secrets, modules, rollout
plans, know-how, techniques, processes, schematics, contracts, financial
information, sales and marketing
plans.
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2.2.
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Neither
Party shall disclose (or permit or cause its employees, agents or
representatives to disclose), Confidential Information disclosed to it
(including information disclosed during audit) by the other Party, to any
other person, without the prior written consent of the other Party to whom
the duty of confidentiality is owed, Except That either Party may disclose
any such Confidential Information: (a) if and to the extent required by
Law or for the purpose of any judicial proceedings; (b) if and to the
extent required by regulatory or governmental body to which that party is
subject, only to the extent that such requirement has the force of law;
(c) to its professional advisers (which shall include in the case of
BCCI-IPL IMG), auditors and bankers, and its (or its Affiliates')
employees, agents or representatives; (d) if and to the extent the
information is or has come into the public domain through no fault of that
Party; and (e) if and to the extent the other Party has given prior
written consent to the
disclosure.
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9
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2.3.
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The
restrictions contained in 2.2 shall continue to apply after the expiry or
termination of the Final Agreement without limit in time. For
the avoidance of doubt, neither Party shall make or authorise any
announcement concerning this Agreement save as separately and expressly
agreed in writing by the other Party or as otherwise required by Law.
Either party shall be entitled to any and all remedies available at law or
in equity, including injunctive relief, in the event of any breach of such
commitment to confidentiality
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2.4.
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At
expiry of this MOU or the Final Agreement or on earlier termination, each
Party shall return to the other Party or destroy (at the other Party's
election) Confidential Information disclosed to it by such other
Party.
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2.5.
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BCCI-IPL
undertakes that it will not authorise any third party to call its website
the “Official Website of the IPL” or similar official website designation
or grant to any third party the right to exploit in a website the
exclusive IPL content granted to LIVE CURRENT MEDIA as listed at Schedule
1 hereto. BCCI-IPL also undertakes that it will not itself
exploit in a website the IPL content granted to LIVE CURRENT MEDIA as
listed at Schedule 1 hereto. The spirit of the agreement being
that there will be one official, comprehensive IPL Website and that it
will be developed, operated, maintained and promoted by LIVE CURRENT
MEDIA.
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2.6.
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BCCI-IPL
undertakes that it will not promote, market, advertise or endorse any
similar or competitive websites or websites devoted to cricket
coverage.
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3.
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CONTENT
AND SUPPORT FROM BCCI-IPL
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There are
two key areas of the IPL Website and the Xxxxxxx.xxx Portal where BCCI-IPL
will actively provide support to Live Current Media:
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3.1.
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Promotion,
Advertising and Marketing Support
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For the
purposes of Section 3.1, the “URL of The IPL Website” shall mean either (this
clause holds across each of the communications vehices referenced
below):
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1.
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The
IPL/DLF logo and the URL of The IPL Website with a “powered by
xxxxxxx.xxx” tag line (see first season home page as a reference)
or,
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2.
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The
IPL/DLF logo and the URL of The IPL Website 67% of the time and the
xxxxxxx.xxx logo 33% of the time
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The
determination of whether definition 1 or 2 is used (by communication vehicle) is
at the discretion of BCCI-IPL.
For the
inaugural season, BCCI-IPL may define the URL of the IPL Website as the IPL/DLF
logo, the IPL/DLF logo with a “powered by xxxxxxx.xxx” tag line or the
xxxxxxx.xxx logo.
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i)
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BCCI-IPL
acknowledges and recognises that LIVE CURRENT MEDIA will be the designer,
developer, promoter and operator of the IPL Website. Further, BCCI-IPL
acknowledges and recognises that LIVE CURRENT MEDIA will consequently have
the right to publicise the IPL Website and use BCCI-IPL’s name in
connection with the same. BCCI-IPL shall itself, and shall
procure that its franchisees, sponsors and other partners also
publicise/promote the IPL Website, including by way of links from their
respective sites to the IPL Website .
|
|
|
ii)
|
BCCI-IPL
will participate in a reasonable number of press conferences, PR launches
and other promotional mechanisms to jointly launch and promote throughout
the Term the IPL Website both in India and globally. The times
and locations of such mechanisms shall be agreed by the Parties acting
reasonably and in good faith. At a minimum the COO of the IPL
will be available at least 8 times during the year for press conferences
or to be quoted in press releases.
|
10
|
|
iii)
|
BCCI-IPL
will use its reasonable endeavours to display the URL of the IPL Website
on all Indian Premier League press releases, official announcements and
all other official correspondence, in all relevant formats, including
digital and print. In any case such reasonable endevours will
constitute in excess of 80% of such
communications.
|
|
|
iv)
|
BCCI-IPL
will insert (wherever reasonably practicable but not less than 80% of the
time) the URL of the IPL Website in the world feed of IPL matches and
shall require its Broadcast Partners not to remove the same from their
transmissions of the matches, it being acknowledged that such insertion
shall at all times be subject to local broadcasting laws and
regulations. “Broadcast Partners”
means the entities to which BCCI-IPL has licensed or may license from time
to time the exclusive right to exhibit, transmit or otherwise make
available audio and audio-visual coverage of IPL matches (including
interviews, awards and ceremonies around the matches) and player auctions
via all media (subject to limited retained rights) it being acknowledged
that at the time of this MOU Sony and World Sport Group are the Broadcast
Partners, but that this is subject to change from time to time, and that
the term “Broadcast Partners” shall also include the entities to which
such Broadcast Partners sub-license some or all of the
rights.
|
|
|
v)
|
BCCI-IPL
will set aside a portion of the ticker space on the world feed of IPL
matches to promote the IPL Website and URL or contests that are being
housed on the IPL Website. At a minimum such material will be
shown 4 times per over.
|
|
|
vi)
|
BCCI-IPL
will endeavour to include the URL of the IPL Website in all Print and
Billboard Advertisements and will at a minimum include the URL in at least
80% of such communications.
|
|
|
vii)
|
BCCI-IPL
will endeavour to include the URL of The IPL Website in all television
advertisements that BCCI-IPL purchases and/or runs in ad-breaks and other
television advertising communications purchased by BCCI-IPL and will at a
minimum include the URL in at least 80% of such communications.
|
|
|
viii)
|
BCCI-IPL
will use its reasonable endeavours to display the URL of the IPL Website
during all live and press covered events, including but not limited to
press conferences, award ceremonies, player auctions and cricket matches
in a manner to be determined by BCCI-IPL (acting reasonably).
|
|
ix) BCCI-IPL
agrees that up to 50% of the total screen space available on the IPL
Website may be used for advertisements and sponsor
promotions.
|
|
x) Representatives
of LIVE CURRENT MEDIA will be granted resonable stadium access to
undertake in-stadium promotional and marketing activities on behalf of the
IPL Website.
|
|
xi) LIVE
CURRENT MEDIA acknowledges and accepts that IPL Sponsors are entitled
to:
|
|
a)
|
To
be identified as official sponsors on the IPL Website, subject to the
terms of clause 1.14(xii) above, the location and manner of this mention
will be determined by the Parties (acting reasonably). However,
the location or type of these mentions shall not materially detract from
the IPL Website’s revenue potential (e.g. the sponsorship mention will not
be on “prime” real estate unless determined by LIVE CURRENT
MEDIA)
|
11
|
b)
|
A
right of first refusal on sponsorship space on the IPL Website. This
sponsorship will be subject to a separate agreement (and separate
consideration) between the sponsor and LIVE CURRENT MEDIA. If the IPL
Sponsors decline this option, LIVE CURRENT MEDIA reserves the right to
seek sponsorship at prevailing market rates from other
parties.
|
|
c)
|
The
only sponsorship category exclusivity on the IPL Website will be for the
title IPL Sponsor, currently DLF. LIVE CURRENT MEDIA will not
sell to competitors of DLF (as defined in the DLF sponsorship
agreement)
|
|
xii)
|
BCCI-IPL
grants to LIVE CURRENT MEDIA the right to prominent signage at the stadia
where Indian Premier League matches are played to promote the IPL Website
(the specific location of such signage to be determined by BCCI-IPL acting
reasonably).
|
|
|
xiii)
|
LIVE
CURRENT MEDIA agrees that:
|
|
|
(a)
|
inadvertent
or accidental failure to include the URL of the IPL Website shall be
disregarded for the purposes of calculating the percentage appearance of
such URL under clauses 3.1(iii), (iv), (vi) and (vii), and shall not be
amount to breach, and
|
|
|
(b)
|
breach
of clauses 3.1(iii), (iv), (vi) and (vii) shall not justify termination of
this MOU or the Final Agreement.
|
|
|
xiv)
|
The
total promotion and marketing support of the IPL Website by the BCCI-IPL
will be the equivalent of at least US$1,000,000 p.a. of marketing spend to
be allocated as reasonably determined by BCCI-IPL (including without
limitation the value of inclusion of the URL in the world feed of the IPL
matches). BCCI-IPL will make all reasonable endevours to meet
this spending minimum. If the value is not reached then the
shortfall shall be made up in the next
year.
|
|
|
xv)
|
BCCI-IPL
shall provide LIVE CURRENT MEDIA with prizes for use in competitions and
as prizes in games (e.g. Fantasy League) on the IPL
Website. These prizes will include but not be limited
to:
|
|
|
·
|
A
minimum of 25 tickets to all IPL matches. Such tickets shall be
in good locations within the
stadium
|
|
|
·
|
IPL
Memorobillia
|
|
|
·
|
Stadium
tours and access
|
|
3.2.
|
Rights and Website
Content
|
LIVE
CURRENT MEDIA shall be entitled to all online IPL content not currently
committed in existing contracts entered into BCCI-IPL contracts, and the content
and rights granted to LIVE CURRENT MEDIA shall include without limitation the
following:
|
i)
|
LIVE
CURRENT MEDIA shall have the exclusive right to display and commercially
exploit all official IPL still photographic images whose rights are owned
and controlled by the BCCI-IPL, including such photographs taken at Indian
Premier League events, subject to the provisions of the press and
photography accreditation arrangements, it being acknowledged that
BCCI-IPL shall not be required to acquire rights to still photographic
images of matches. LIVE CURRENT MEDIA must ensure that such still images
may not be refreshed in such a way as to create any form of sequencing
that is akin to a moving image or
video.
|
12
IPL will
be responsible for commissioning an “official photographer” (that will be
mutually agreed upon by the Parties) for images which will be made available to
LIVE CURRENT MEDIA in accordance with this clause 3.2(i) with the costs of such
official photographers to be shared by BCCI-IPL and LIVE CURRENT MEDIA on a
50/50 basis.
Commercial
exploitation of official still IPL photographic images shall be subject to the
entity licensing and exploiting such images obtaining all necessary endorsement
clearances from individuals featured in such photographic images.
|
ii)
|
LIVE
CURRENT MEDIA shall have the non-exclusive right to sell “Official” IPL
merchandise on the IPL Website, either directly or via a link to other
official IPL merchandise outlets, it being acknowledged that the price of
merchandise shall be set by BCCI-IPL. BCCI-IPL shall make available to
LIVE CURRENT MEDIA exclusive limited edition IPL merchandise (the
exact merchandise to be jointly agreed by the Parties), and
reasonable and regular access to signed merchandise, memorabilia and
souvenirs (eg. match balls, wickets, etc), in each case for sale or use in
competitions on the IPL
Website.
|
|
iii)
|
BCCI-IPL
shall grant LIVE CURRENT MEDIA the exclusive right (subject only to the
IPL Broadcast Partner rights) to make available the following content on
the IPL Website on the Internet
only:
|
|
|
a)
|
An
official live video and/or audio scorecard in relation to each match of
the IPL (which may incorporate “Clips”), it being acknowledged that there
may be other websites that carry scorecards; and
|
|
|
b)
|
“Highlights”
of each IPL match.
|
For the
purposes of 3.2(iii)(a) above “Clips” shall mean a reasonable number of excerpts
of footage of Matches of no more than 30 seconds per excerpt (which shall be
accessed by a click or other appropriate access mechanism) which may be made
available by LIVE CURRENT MEDIA on a delayed basis no sooner than 5 minutes
after the action in the relevant Clip has taken place
For the
purposes of 3.2(iii)(a) “Highlights” shall mean edited excerpts of footage of
not more than 52 minutes in duration per IPL match and which shall not be made
available until 1 hour after each innings of a match. From 72 hours
after each match, such Highlights programming under 3.2(iii)(b) may be longer
than 52 minutes in duration per Match from 72 hours after the end of the
relevant Match.
For the
avoidance of doubt, the only other parties that will have access to IPL “Clips”
and “Highlights” shall be the IPL Broadcast partners.
|
iv)
|
LIVE
CURRENT MEDIA shall have the exlcusive right to exploit (including use and
distribution) the audio-visual archive of IPL matches on the Internet from
72 hours after the end of the relevant IPL
match.
|
|
v)
|
In
relation to the content at 3.2(iii) and 3.2(iv), BCCI-IPL shall make
available the world feed to LIVE CURRENT MEDIA at the venue of each IPL
match, and LIVE CURRENT MEDIA shall be entitled to edit the same to create
the Clips and Highlights detailed in 3.2(iii) and (iv)
above.
|
13
|
vi)
|
LIVE
CURRENT MEDIA shall have Exclusive internet rights to raw camera footage
of IPL Matches not used in the World Feed, which LIVE CURRENT MEDIA may
exploit on as follows:
a)
Within 72 hours of each
Match
|
1. 52
minutes on one hour delay
2. Reasonable
number of 30sec clips on a 5 minute delay
b) Post
72 hours after each Match: no restrictions on length of
footage
|
vii)
|
From
72 hours after each Match, LIVE CURRENT MEDIA shall have the Exclusive
right to license to third parties Internet rights to archive IPL Match
footage in a “clean format” that is owned and controlled by the BCCI-IPL,
by way of clips and other exploitation. “Clean format” means
that the video will not contain the IPL logo. Broadcast Partners
shall have the right to commercially exploit archive IPL footage but it
shall always have the IPL logo visible in the video. LIVE
CURRENT MEDIA shall obtain BCCI-IPL clearance for each proposed
exploitation of these rights, it being acknowledged that LIVE CURRENT
MEDIA shall not license television broadcast competitors of the Broadcast
Partners until 72 hours after the end of the IPL season in which the
relevant Match took place.
|
|
viii)
|
LIVE
CURRENT MEDIA shall have the exclusive right to produce and retail DVD
titles incorporating the IPL Matches and the IPL Player Auctions on behalf
of IPL, each such DVD title to be subject to IPL approval, not to be
unreasonably withheld
|
|
ix)
|
LIVE
CURRENT MEDIA shall have the exclusive right and license to operate
official on-line fantasy leagues of
IPL
|
|
x)
|
BCCI
shall ensure that all official announcements of BCCI-IPL are promptly
notified to LIVE CURRENT MEDIA to enable the same to be included on the
IPL Website
|
|
xi)
|
The
IPL Website shall be the exclusive point of sign-up and distribution of
the IPL newsletter
|
|
xii)
|
BCCI-IPL
shall provide LIVE CURRENT MEDIA with preferential access such historic
and on-going player, team, match and tournament statistics as LIVE CURRENT
MEDIA reasonably requires in a suitable format to be agreed by the Parties
|
|
xiii)
|
BCCI-IPL
shall provide LIVE CURRENT MEDIA with exclusive and direct access to live
scoring feeds from all matches if it does the same. If not, Live Current
Media will have the exclusive access to the venue to do the same. This is
further clarified that it applies to Cricket only
sites.
|
|
xiv)
|
BCCI-IPL
shall use reasonable endeavours (including making reasonable requests to
players under the terms of the player contracts) to provide access to
coaches, owners, officials and BCCI-IPL players for interviews, blogs,
profiles, fan meet and greet sessions, participation in Fantasy Leagues
and other content, subject to applicable ICC, BCCI-IPL and other
regulations. LIVE CURRENT MEDIA shall have the right to request specific
players but it acknowledges and accets that BCCI-IPL can not guarantee
participation by specific players at specific times. However,
BCCI-IPL commits that, in aggregate, LIVE CURRENT MEDIA will receive
active player participation (including from captains) in the IPL
Website.
|
14
It is
agreed that audio-visual or audio-visual coverage of interviews conducted with
players during intervals in matches or as part of ceremonies, presentations or
other events immediately before or after such matches may not be made available
on the IPL Website until 72 hours after the relevant match.
|
xv)
|
Rights
over the sale of tickets online will be determined in the Final
Agreement.
|
|
xvi)
|
BCCI-IPL
shall grant LIVE CURRENT MEDIA the right to make available
selected this content on the IPL Website and the Xxxxxxx.xxx
Portal or any other of its Cricket
portals.
|
|
xvii)
|
LIVE
CURRENT MEDIA shall be entitled to sub-licence the rights set out in this
clause 3.2, subject to obtaining IPL’s prior written approval for such
proposed sub-licence. LIVE CURRENT MEDIA shall not sell
any of the IPL content set out above to brand category competitors of IPL
Sponsors without obtaining the prior written approval of
BCCI-IPL
|
|
xviii)
|
Live
Current Media will have the right to make special shows, clips and
highlights for IPL games.
|
|
4.
|
OTHER
CONSIDERATIONS
|
|
4.1
|
BCCI-IPL
grants to LIVE CURRENT MEDIA a non-exclusive, royalty-free, worldwide
licence during the Term to use the names and logos of IPL, BCCI, the
franchisees, official IPL commercial partners (including without
limitation those of the IPL title sponsor and other official sponsors) in
the form(s) provided to LIVE CURRENT MEDIA by BCCI-IPL on the IPL Website
and within any advertising or promotions for the same. LIVE CURRENT MEDIA
agrees to comply with such reasonable guidelines as are provided to it in
writing by BCCI-IPL from time to time in relation to the use of such names
and logos.
|
4.2 LIVE
CURRENT MEDIA will assign to BCCI-IPL on creation:
|
|
(i)
|
all
intellectual property rights (including but not limited to all copyright)
in the design, look, feel, format and all content of the IPL Website and
BCCI-IPL will grant LIVE CURRENT MEDIA a licence to use such rights during
the Term;
|
|
|
(ii)
|
all
rights to any domain names registered by LIVE CURRENT MEDIA in connection
with the IPL Website and this MOU/the Final Agreement;
and
|
|
|
(iii)
|
all
rights to customer data of customer data of customers signing up through
the IPL Website, and BCCI-IPL shall grant LIVE CURRENT MEDIA a licence to
use such data to promote the IPL Website with authorisation from BCCI-IPL
and the relevant customer (and subject to any applicable data protection
laws and regulations). It is acknowledged that 1.9(ii)(a) will
apply if the Term of this MOU/the Final Agreement is not renewed, and LIVE
CURRENT MEDIA shall own the rights to customer data of customers signing
up through the Xxxxxxx.xxx Portal.
|
|
4.2
|
BCCI-IPL
acknowledges and agrees that all intellectual property rights (including
but not limited to all copyright) in the Xxxxxxx.xxx Portal (except for
content that is included on the Xxxxxxx.xxx Portal that is owned by
BCCI-IPL or content taken from the IPL Website] shall vest, and remain
vested, in LIVE CURRENT MEDIA. Furthermore, all rights to the
domain names registered by LIVE CURRENT MEDIA in relation to the
Xxxxxxx.xxx Portal shall vest, and remain vested in, LIVE CURRENT MEDIA
unless they relate to IPL or the
BCCI.
|
|
4.3
|
BCCI-IPL
shall warrant that BCCI-IPL content that it provides to LIVE CURRENT MEDIA
under this MOU and the Final Agreement shall not infringe the rights of
any third party in the form in which it is made available to LIVE CURRENT
MEDIA.
|
15
|
4.4
|
LIVE
CURRENT MEDIA acknowledges and agrees that BCCI-IPL has granted its official
sponsors, suppliers, franchisees and Broadcast Partners the
right exploit on their respective websites certain of the content to be
provided to LIVE CURRENT MEDIA under this MOU and shall be entitled to
grant to official sponsors, suppliers, franchisees and Broadcast Partners
appointed in the future the right to exploit the same content on their
respective websites.
|
|
4.5
|
Except
for the content and means of exploitation set out at 3.2(iii) above LIVE
CURRENT MEDIA acknowledges and accepts that it shall not be entitled
without the further agreement of BCCI-IPL to make available on the IPL
Website any audio or audio-visual coverage of the IPL player auctions,
matches and ceremonies and presentations around those matches until 72
hours after the same, and that if it does so BCCI-IPL may be in breach of
its contracts with its Broadcast Partners. Without limitation
to the generality of the above, LIVE CURRENT MEDIA acknowledges and agrees
that the IPL Website shall not contain any live or as live continuous
audio and/or audio-visual coverage of any IPL match, unless LIVE CURRENT
MEDIA is authorized to make available such coverage pursuant to a contract
with a Broadcast Partner. BCCI-IPL shall use its reasonable
endeavours to make available to LIVE CURRENT MEDIA additional audio and/or
audio-visual content for inclusion on the IPL Website from time to time (as agreed by
BCCI-IPL).
|
|
4.6
|
Without
prejudice to the generality of the risk and cost being assumed by LIVE
CURRENT MEDIA hereunder, LIVE CURRENT MEDIA shall ensure that the IPL
Website (and in particular any message boards or social networking
platforms therein) shall contain nothing defamatory of the game of
cricket, the ICC, BCCI, IPL, IPL Sponsors or IPL Frnchisees or any
players, coaches or other participants in the IPL. Where LIVE CURRENT
MEDIA becomes aware of any such content being included on the IPL Website
it shall remove the same as soon as reasonably
practicable
|
|
|
4.7
|
If BCCI-IPL and/or Live Current
Media becomes aware of any unauthorised exploitation by a third party of
any of the rights granted to LIVE CURRENT MEDIA hereunder, or the
infringement by a third party of the exclusivity granted to LIVE CURRENT
MEDIA hereunder, the Parties shall jointly and promptly take such action
as is necessary to end the
same.
|
|
4.8
|
For
lack of confusion, the MOU and Final Agreement will cover both the
currently envisioned annual IPL season as well as any future incarnations
of the Indian Premier League (e.g. a fall schedule). LIVE
CURRENT MEDIA shall receive all rights, website content, advertising
support, marketing support and promotional support detailed in the MOU and
Final Agreement without any additional costs or Minimum Annual Fee
commitments.
|
16
|
5.
|
FINAL
AGREEMENT
|
|
5.1.
|
When
signed by both Parties, this MOU is a legally binding agreement between
the Parties with further terms and conditions to be negotiated and
included in the Final Agreement.
|
|
5.2.
|
The
Final Agreement between the Parties shall be drafted and signed off to
reflect the terms agreed in this MOU. BCCI-IPL and LIVE CURRENT MEDIA have
agreed to go ahead with the press announcement that will be jointly
approved by BCCI-IPL and LIVE CURRENT MEDIA before April 30th,
2008 to announce the launch of the IPL
Website.
|
|
5.3.
|
To
facilitate the support and co-operation by BCCI-IPL, BCCI-IPL hereby
nominates Mr Xxxxxx Xxxxx COO IPL, as the focal contact point for
interaction with LIVE CURRENT MEDIA for the purposes of this
MOU.
|
|
5.4.
|
LIVE
CURRENT MEDIA shall be responsible for ensuring the compliance of the IPL
Website and the Xxxxxxx.xxx Portal with all applicable laws and
regulations.
|
|
5.5.
|
LIVE
CURRENT MEDIA shall not be entitled to assign, sub-contract, or otherwise
transfer any of its obligations under this MOU or the Final Agreement
without the prior written consent of BCCI-IPL, and BCCI-IPL reserves the
right to terminate the Final Agreement if LIVE CURRENT MEDIA ceases to
carry on business.
|
|
5.6.
|
This
MOU (and the Parties agree that the subsequent Final Agreement) shall be
governed by and construed in accordance with the substantive laws of
India. Any dispute arising out of or in relation to this MOU
(or the Final Agreement) involving the interpretation or implementation of
the clauses of this MOU (or the Final Agreement), or the breach,
termination or validity thereof, shall be resolved in accordance with the
procedures specified in this clause which shall be the sole and exclusive
procedure for the resolution of any and all such disputes before seeking
recourse to Arbitration.
|
|
5.7.
|
The
parties shall attempt in good faith to resolve any dispute arising out of
or relating to this MOU (or the Final Agreement) promptly by good faith
negotiations for a period of twenty-one (21) days from date of issuance of
written notice that a dispute has
arisen.
|
|
5.8.
|
Any
dispute which has not been resolved as provided herein within 21 days of
the initiation of such procedure, shall be settled exclusively by
arbitration in Mumbai India, in accordance with ARBITRATION AND
CONCILIATION ACT, 1996. The arbitration tribunal shall consist
of 3 arbitrators, with each party designating one arbitrator and the said
chosen arbitrators designating the third arbitrator. The place of
arbitration in India shall be Chennai and the language of arbitration
shall be English. The arbitrators are not empowered to award
damages in excess of compensatory damages and each party hereby
irrevocably waives any right to recover such damages with respect to any
dispute resolved by arbitration.
|
|
5.9.
|
The
Parties hereby agree any award of the tribunal shall be enforced in any
court of competent jurisdiction in
Mumbai.
|
|
5.10.
|
This
MOU shall be governed by and construed in accordance with the laws of
India and shall be subject to the exclusive jurisdiction of the courts in
Mumbai, India.
|
17
IN WITNESS WHEREOF, this MOU
has been entered into on the date stated at the beginning by the
Parties.
SIGNED
AND
DELIVERED )
by the
within named LIVE CURRENT MEDIA
Inc )
by the
hand of its authorised
signatory )
Xx.
Xxxxx Xxxxxxx
in the
presence of [Mr./Ms.]
[_______________] )
SIGNED
AND
DELIVERED )
by the
within named
BCCI-IPL )
Board of
Control for Cricket in
India )
by the
hand of its authorised
signatory )
Mr. Xxxxx
Xxxx )
in the
presence of [Mr./Ms.]
[_______________] )
IN
WITNESS
|
/s/
Xxxxxx Xxxxx
|
/s/
Xxxx Xxxxxxxx
|
|
XxxxxxXxxxx
|
Xxxx
Xxxxxxxxx
|
18
SCHEDULE
1
Content
items included in the IPL Website
LIVE
CURRENT MEDIA and BCCI-IPL have agreed that the IPL Website may include the
following items of content, and that (as applicable) the BCCI-IPL will support
the IPL Website by providing access to the necessary content sources that
BCCI-IPL owns and/or controls and/or licensing such content that BCCI-IPL owns
and/or controls to LIVE CURRENT MEDIA (at no additional cost) subject to the
terms of the MOU:
|
|
i)
|
News
and happenings
|
|
|
ii)
|
Clips
and highlights
|
|
|
iii)
|
Interviews,
audio-visual content relating to players, clubs, matches and tournaments
other than match-play
|
|
|
iv)
|
Club
profiles
|
|
|
v)
|
Player
profiles
|
|
|
vi)
|
Match and
tournament schedules
|
|
|
vii)
|
Statistics:
player, team, match and tournament
|
|
|
viii)
|
Ticketing
(exact format TBD)
|
|
|
ix)
|
Blogs
|
|
|
x)
|
Newsletters
(email subscription)
|
|
|
xi)
|
Contests
|
|
|
xii)
|
Polls
|
|
|
xiii)
|
Games
|
|
|
xiv)
|
Live
scoreboard and text commentary
|
|
|
xv)
|
Match
results
|
|
|
xvi)
|
Match
reports
|
|
|
xvii)
|
Fantasy
League game
|
|
|
xviii)
|
Online
Store
|
|
|
xix)
|
Message
boards
|
|
|
xx)
|
Comprehensive
Social Networking Platform incuding member profiles, tickers,
etc. It should be noted that while some/all of the
functionality will reside on the IPL Website some may reside on popular
social networks (e.g. Xxxxx, Facebook, ect.)
|
19
SCHEDULE
2
Minimum
Annual Fee Payment Schedule
|
Payment
Due Date
|
Payment
Amount ($US)
|
|
October
1, 2008
|
$375,000
|
|
January
1, 2009
|
$375,000
|
|
April
1, 2009
|
$375,000
|
|
July
1, 2009
|
$375,000
|
|
October
1, 2009
|
$500,000
|
|
January
1, 2010
|
$500,000
|
|
April
1, 2010
|
$500,000
|
|
July
1, 2010
|
$500,000
|
|
October
1, 2010
|
$500,000
|
|
January
1, 2011
|
$500,000
|
|
April
1, 2011
|
$500,000
|
|
July
1, 2011
|
$500,000
|
|
October
1, 2011
|
$1,000,000
|
|
January
1, 2012
|
$1,000,000
|
|
October
1, 2012
|
$1,000,000
|
|
January
1, 2013
|
$1,000,000
|
|
October
1, 2013
|
$1,000,000
|
|
January
1, 2014
|
$1,000,000
|
|
October
1, 2014
|
$1,000,000
|
|
January
1, 2015
|
$1,000,000
|
|
October
1, 2015
|
$1,000,000
|
|
January
1, 2016
|
$1,000,000
|
|
October
1, 2016
|
$1,000,000
|
|
January
1, 2017
|
$1,000,000
|
|
October
1, 2017
|
$1,250,000
|
|
January
1, 2018
|
$1,250,000
|
20
