CONTENT PROVIDER AGREEMENT (SPECIAL LAUNCH AGREEMENT)
This Content Provider Agreement ("Agreement") is made this 2nd day of
February, 2000, by and between Channelseek Inc., an Indiana corporation
("Channelseek") located at 0000 Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
and Entertainment Boulevard, Inc., a Nevada corporation ("Content Provider")
located at 00000 Xxxxxx Xxxxxxxxx, Xxxxx 0, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
1. Channelseek is a global Internet distribution company that offers a
comprehensive guide to web-delivered broadcast media by offering two targeted
websites, one designed for low bandwidth users and the other for high
bandwidth users (collectively called "Program Guide"). Content Provider
produces and/or distributes broadcast media for delivery over the Internet
(the "Content"). Content shall mean all works of authorship in any form
including but not limited to video, slides, text, scripts, photographs, art,
illustrations, animation, graphics, interface designs, images, music, sound
effects, lyrics, narration, advertising and other audio, visual, audiovisual
and streaming media works in addition to text, information, data, images,
marks, graphics and media that are accessible through the Content Provider
website or websites.
2. Content Provider desires to include its Content in Channelseek's
Program Guide and to access certain other value-added services offered by
Channelseek, all in accordance with the terms and conditions of this
Agreement. Channelseek agrees to include Content Provider's Content in its
Program Guide and provide other value-added services, all in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereby agree as follows:
1. TERM. The term of this Agreement ("Term") shall commence on the date
hereof and continue for a period of twelve months, with automatic annual
renewals thereafter. Either party may terminate this Agreement by giving 90
days prior written notice.
2. AGREEMENT OF CONTENT PROVIDER: Content Provider agrees that, in
consideration of the value-added services to be provided by Channelseek as
described in Paragraph 3 and detailed in sections 3-a, 3-b, and 3-c below,
during the Term, it shall: (a) make its Content available to Channelseek; (b)
permit Channelseek to promote and exhibit the Content at other sites using
available technologies with advanced written permission by the content
provider; (c) provide information and feedback to Channelseek pertaining to
the Channelseek website or any of the value-added services provided by
Channelseek; and (d) not permit any Objectionable Materials to be included in
the Content. As used herein, the term "Objectionable Material" includes any
Content that: (i) is factually inaccurate, misleading, deceptive or otherwise
inappropriate; (ii) is not the most current version of such Content available
from Content Provider; (iii)
-1-
infringes or may be perceived as infringing any intellectual property rights
of third persons; and (iv) is or may be deemed to be libelous, defamatory,
racist, vulgar, abusive, obscene or pornographic or which may violate other
civil or criminal laws, including those regulated in the use and distribution
of content on the Internet and protection of personal privacy. With the
advanced written permission Channelseek may reproduce, distribute, display
and transmit the Content to promote and distribute the Content. Channelseek
may use Content Provider's Marks, (i) to identify Content Provider as the
source of Content as necessary; (ii) to identify and aid access to Content
Provider web site(s), content, links, streams, graphics, listing summaries,
including but not limited to all other marks if desired (iii) in a factual
manner in any promotional material, including but not limited to, press
releases, information guides and listings as well as any other medium for
promotion of said Content.
3. AGREEMENT OF CHANNELSEEK: During the Term, Channelseek and Content
Provider's relationship shall be as initialed below:
3-a PLATINUM CHANNEL SPONSORSHIP
Platinum Channel Partners: (a) will receive the most prominent placement and
treatment throughout the Xxxxxxxxxxx.xxx websites, and the "Channelseek
Guide" when compared to the other categories; (b) receive a non-exclusive,
non-assignable, license to use Channelseek's Event Notification Service
("Remind Me") service; and (c) must offer rich media Content throughout the
Term.
Platinum Channel Partners will receive the following non-exclusive benefits:
Magazine Benefits:
a. Logo featured on the front cover of the "Channelseek Guide" for the
Term.
b. Full-page ad in each issue of the "Channelseek Guide" at a minimum
circulation of 200,000 or 25% of the total, whichever is greater.
c. Platinum Channel Partners will be profiled once in the editorial
of the "Channelseek Guide" within the first 6 months of signing this
Agreement. The feature will include a graphic representation of the
Platinum Channel Partner such as a photo, screen capture, or logo.
d. Selected daily programs will be listed in the weekly webcasting guide
in boldface and with the Platinum Channel Partner's logo.
Website Benefits:
a. Platinum Channel Partners' logos will appear on the Channelseek
splash page.
b. Top navigational channel treatment on one associated main channel
category and each of the subchannels beneath that channel.
-2-
c. Each description associated with the Platinum Channel Partner
will include a small graphic logo within the text to further
brand the Platinum Channel Partner's channel.
d. Platinum Channel Partners will have a "Channel Profile" page that
is exclusive to their content and events. This "Channel Profile"
page will also include an editorial overview of the Platinum
Channel Partner complete with its logo or other graphic. Logos
within descriptions will also link to this "Channel Profile" page.
e. Channelseek will use its reasonable efforts to provide Channel
Partner 50,000 impressions per month.
f. Platinum Channel Partners will be given access to online traffic
and click-through statistics on all their content in the
database. Platinum Channel Partners will be able to change and
modify their descriptions or keywords based on user patterns.
Additional considerations:
a. Platinum Channel Partners will have a cross-promotional link on
their website and will utilize their best efforts to use the
"Remind Me" system whenever possible.
b. Platinum Channel Partners agree to provide timely, accurate
content information. To facilitate this, Platinum Channel
Partners agree to use their best efforts to incorporate the
automated system whereby a text file is spidered on their
server(s) that updates the Channelseek database in a timely
fashion and grants to Channelseek sole access to harvest data
files directly or indirectly created by this automated system.
c. Platinum Channel Partners agree to provide Channelseek at least
one direct link to a video clip to be highlighted in their
respective channel with a screen capture promoting their content.
Platinum Channel Partners agree to prominently display a Channelseek button
on their initial or splash page.
Platinum Channel Sponsorship Costs:
The cost for the Platinum Channel Sponsorship package is $12,000 per month.
Pricing and terms are subject to change by Channelseek with 90 days prior
written notice. Discounts are detailed below:
a. 15% gross discount--If an automated system is in place that
grants Channelseek access to spider and update Channelseek's
database.
b. 5% gross discount--If the Platinum Channel Partner uses the
Channelseek "Remind Me" system.
-3-
4. NO REVENUE SHARING/NO LIABILITY: The parties have not entered into
and there is no agreement regarding the sharing of revenues of any nature
whatsoever, including, without limitation, any advertising revenues.
Excepting only pursuant to Paragraph 7 of this Agreement, in no event will
either party be liable for any loss, damage, expense or damage of any kind
whatsoever, direct or indirect, including, without limitation any liability
for incidental consequential damages or lost profits. NEITHER PARTY MAKES ANY
WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESSED OR
IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND MERCHANTABILITY).
5. INDEMNIFICATION.
(a) BY CHANNELSEEK. Channelseek (referred to in this Section as the
"indemnifying party") agrees to indemnify, hold harmless, reimburse and
defend Content Partner and Content Partner's officers and directors (each
being referred to in this Section as the "indemnified party"), from and
against any claim, suit, action, or other proceeding brought against the
indemnified party arising out of or in connection with (i) the indemnifying
party's breach of any representation, warranty, covenant or obligation in this
Agreement; (ii) any grossly negligent or wrongful act or omission of the
indemnifying party with respect to the subject matter of this Agreement; or
(iii) a claim that any material, product, information or data or service
produced, distributed, offered or provided by the indemnifying party
(including, without limitation, any material presented on any site on the
Internet, produced, maintained or published by the indemnifying party, but
excluding Hypertext Links to sites on the Internet produced, maintained or
published by a third party) infringes in any manner, any copyright, patent,
trademark, trade secret or any intellectual property right of any third
party. The indemnifying party will pay any and all Damages awarded against or
otherwise incurred by the indemnified party in connection with or arising
from any such claim, suit, action or other proceeding;
(b) BY CONTENT PARTNER. Content Partner (referred to in this
Section as the "indemnifying party") agrees to indemnify, hold harmless,
reimburse and defend Channelseek, and Channelseek's officers and directors
(each being referred to in this Section as the "indemnified party"), from and
against any claim, suit, action, or other proceeding brought against the
indemnified party arising out of or in connection with (i) the indemnifying
party's breach of any representation, warranty, covenant or obligation in
this Agreement; (ii) any grossly negligent or wrongful act or omission of the
indemnifying party with respect to the subject matter of this Agreement; or
(iii) a claim that any material, product, information or data or service
produced, distributed, offered or provided by the indemnifying party
(including, without limitation, any material presented on any site on the
Internet, produced, maintained or published by the indemnifying party, but
excluding Hypertext Links to sites on the Internet produced, maintained or
published by a third party) infringes in any manner, any copyright, patent,
trademark, trade secret or any intellectual property right of any third
party. The indemnifying party will pay any and all Damages awarded against
or otherwise incurred
-4-
by the indemnified party in connection with or arising from any such claim,
suit, action or other proceeding;
6. SCOPE OF AGREEMENT AND DISCLAIMER OF WARRANTIES/LIMITATION OF
LIABILITY. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY,
WRITTEN, ORAL, EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ALL OF
WHICH ARE HEREBY EXPRESSLY DISCLAIMED). NOTHING IN THIS AGREEMENT SHALL BE
CONSTRUED AS PROHIBITING CHANNELSEEK FROM PROVIDING CONTENT TO ANY OTHER
PERSON VISITING THE CHANNELSEEK WEBSITE.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY OTHER AGREEMENT TO
THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR
ANY THIRD PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING FROM ANY ACTIONS OR OMISSIONS,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR
OTHER INTANGIBLE RIGHTS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES
ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF ACCESS TO ANY
WEBSITE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION,
SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL,
INADVERTENT OR ADVERTENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
PROVISIONS OF THE AGREEMENT ARE INTENDED TO REFLECT AN INFORMED, VOLUNTARY
ALLOCATION BETWEEN THE PARTIES OF ALL RISKS (BOTH KNOWN AND UNKNOWN)
CONTEMPLATED BY THIS AGREEMENT. EXCEPT FOR MONEY DUE UPON AN OPEN ACCOUNT, NO
ACTION SHALL BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT MORE THAN ONE (1)
YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
7. INTELLECTUAL PROPERTY OWNERSHIP: Both parties shall retain
ownership and control use of their respective marks, copyrights, logos and
other proprietary materials and Content.
8. PUBLICITY: Either party may make public announcement regarding the
fact of the establishment of the relationship described in this Agreement,
subject to the approval of the other party, which approval shall not be
unreasonably delayed or withheld.
9. NOTICES: All notices to be provided under this Agreement shall be
sent to:
-5-
IF TO CHANNELSEEK: IF TO CONTENT PROVIDER
Director of Channel Partnerships Xxxxxxx Xxxxx, CEO
Channelseek, Inc. Entertainment Boulevard, Inc.
0000 Xxxx Xxxx, Xxxxx 000 00000 Xxxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Phone: 317-585-6111 x-_____ Phone: (000) 000-0000
Fax: 000-000-0000 Fax: (000) 000-0000
10. MISCELLANEOUS. In the course of performing under this Agreement,
each of the parties will operate as, and have the status of, an independent
contractor, and will not act as or be an agent, co-venturer, employer or
fiduciary of the other party. Neither party shall have the right to assign or
delegate any obligations under this Agreement without the prior consent of the
other. This Agreement shall be governed and construed under, and in
accordance with, the laws of the state of Indiana, and constitutes the entire
Agreement of the parties with respect to the subject matter hereof, and
supersedes any and all prior or contemporaneous, written or oral
negotiations, correspondence, understandings or agreements with respect to
the subject matter of this Agreement. The headings of the sections are for
convenience of reference only and will not affect the meaning or operation of
this Agreement. The terms and conditions of this Agreement are subject to all
applicable laws and regulations which are currently in effect or which may
become effective during the term of this Agreement. If any provision of this
Agreement is considered void, voidable, illegal, or invalid for any reason,
such provision will be of no force and effect only to the extent that it is
so declared void, voidable, illegal, or invalid. All of the provisions of
this Agreement not specifically found to be so deficient will remain in full
force and effect. NON-EXCLUSIVITY. Each party acknowledges that the
arrangements contemplated by this Agreement are non-exclusive and that each
party may enter into arrangements with third parties that are similar or
identical to those contemplated in this Agreement that are not in direct
conflict this Agreement. Any amendment or other modification of this Agreement
will be effective only if in writing and signed by both parties. No term or
provision of this Agreement may be waived except by a written instrument duly
executed by the party against whom such or waiver is sought to be enforced.
11. TERMINATION/SURVIVAL. Either party may terminate this Agreement
immediately and without obligation or liability to the other party upon the
occurrence of a breach of any provision or term of this Agreement. The terms
of Paragraph 7 of this Agreement shall survive the termination or expiration
of this Agreement.
12. FORCE MAJEURE. Neither party will be liable for any failure to
perform any obligation hereunder, or from any delay in the performance
thereof, due to causes beyond its reasonable control, including, without
limitation, industrial disputes of whatever nature, acts of God, public
enemy, acts of government, failure of telecommunications, fire or other
casualty. In the event that Channelseek is unable to provide Content Provider
all required banner ads during any month, Channelseek will provide Content
Provider a make good in additional banner advertisements or based
-6-
upon the CPM value of advertising in the guide times the number of guides
with Content Partner's advertising in excess of 200,000 copies.
13. CONFIDENTIAL INFORMATION. As a condition to receiving any
information which either party or any of its employees, representatives or
agents (the "Disclosing Party") may furnish to the other (the "Receiving
Party") or to which the Receiving Party is afforded access, directly or
indirectly, the Receiving Party covenants to hold and treat the Information
in strictest confidence and shall not, without the prior written consent of
the Disclosing Party, use or disclose the Information or any part thereof
except as necessary for the purpose of facilitating the business relationship
and undertakings of the parties described herein. Information shall not,
without the prior written consent of the Disclosing Party, be disclosed to
any Person other than employees or agents of Receiving Party who need to know
the Information and in those instances only to the extent justifiable by that
need. In further consideration of the disclosure to be made by the Disclosing
Party, Receiving Party agrees to promptly redeliver to the Disclosing Party
upon request and without relieving Receiving Party of any obligation of
confidentiality all written material containing or reflecting any Information
(including all copies, extracts or other reproductions) and further agrees
that the Disclosing Party shall have no liability to Receiving Party resulting
from use of the Information.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
CHANNELSEEK, INC. ENTERTAINMENT BOULEVARD, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxx
--------------------------- -----------------------------
Printed: Xxxxxx X. Xxxx Printed: Xxxxxxx Xxxxx
---------------------- ------------------------
Title: President Title: CEO
------------------------ --------------------------
("Channelseek") ("Content Provider")
-7-
ATTACHMENT A (LAUNCH ONLY)
Notwithstanding the foregoing and on a one-time basis in recognition of
Content Provider's participation during the launch of this program, payment
by Content Provider in Section 3 is will be satisfied by the following:
- Exclusive (486 x 60) banner advertisement in the Wall of
Sound/XxxxxxxxxxxxxXxxx.xxx pop-up player and will use reasonable
efforts to provide up to 250,000 impressions per month.
- 120 x 60 Sponsor Button rotation on XxxxxxxxxxxxxXxxx.xxx splash page
and use reasonable efforts to provide 100,000 impressions per month.
-8-
