EXHIBIT 10.13
MICROSOFT CORPORATION
PROMOTION AGREEMENT
This Microsoft Corporation Promotion Agreement (the
"Agreement") is made and entered as of the later of the three signature dates
below (the "Effective Date") by and between Next Big Star, LLC ("NBS"), a
Delaware corporation, and Microsoft Corporation ("Microsoft"), a Washington
corporation.
RECITALS
WHEREAS Next Big Star, LLC owns and operates a Web site
currently titled "Next Big Star" and located at xxxx://xxx.xxxxxxxxxxx.xxx or
such other replacement site owned and operated by Next Big Star, LLC (the "NBS
Site") which provides end-users with information relating to talent search and
other related information;
WHEREAS Microsoft owns and operates a Web site located at
XXXX://XXX.XXX.XXX currently titled MSN ("MSN"), and including a channel titled
"Entertainment" located at XXXX://XXXXXXXXXXXXX.XXX.XXX or such other
replacement site owned and operated by Microsoft (the "MSN Entertainment
Channel" or "Channel") which provides end-users with information related to
entertainment;
WHEREAS Microsoft and NBS desire to populate the MSN
Entertainment Channel, in part, with select content, information and other
materials created or licensed by, available on, and/or related to the NBS Site
("Content"), to provide various links between pages on the MSN Entertainment
Channel and pages located on the NBS Site; and
WHEREAS NBS agrees to include MSN in all NBS offline
promotions and to promote MSN on the NBS Site;
NOW THEREFORE, the parties agree as follows:
1. NBS CONTENT PLACEMENT ON MSN.
1.1 CONTENT. During the Term of this Agreement, NBS will provide
to Microsoft current and newsworthy content as defined in Exhibit A
(the "Content").
1.2 CONTENT PLACEMENT. Microsoft will place NBS's Content in the
Channel as follows:
a. ON THE CHANNEL HOME PAGE. Microsoft may, in it's sole
discretion, place NBS News Headlines and Feature Headlines (as defined in
Exhibit A), on the top-level
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page of the MSN Entertainment Channel (the "Channel Home Page"). News Headlines
and Feature Headlines appearing on the Channel Home Page will link to their
associated stories ("News Stories" and "Features") located on the Feature Pages,
as described below. NBS will receive a branded promo area (NBS Promo Box) on the
left-hand column of the Channel Home Page with three to five text links
(Microsoft may, in it's sole discretion, increase the number of text links in
the NBS Promo Box). The size and placement of the Promo Box will be in
Microsoft's sole discretion. Such links will link to NBS Content on MSN and from
time to time some links could link directly to co-branded pages on the NBS Site
("NBS Links"). The text of the NBS Links will be determined by NBS, subject to
approval by Microsoft. The NBS logo, placed at the top of the NBS Promo Box,
will be a hyperlink to the top page of the NBS Site
(XXXX://XXX.XXXXXXXXXXX.XXX). Such NBS logo shall be no greater than 139 pixels
by 45 pixels, shall be comparable in size with other third party logos within
promo boxes and Microsoft may update the logo size specifications from time to
time.
b. ON THE CATEGORY MENU PAGE. Microsoft may, in its sole
discretion, place-- Feature Headlines (as defined in Exhibit A) on the top-level
page of the Celebs category (the "Category Menu Page") and/or the Feature Pages.
News Headlines (as defined In Exhibit A) may, in Microsoft's sole discretion,
also appear on the Category Menu Page, and will link to their associated News
Stories located on the Feature Pages.
c. ON FEATURE PAGES. News Stories and Features (as defined in
Exhibit A) will be placed on Feature Pages only. "Feature Pages" shall mean the
various pages within the Category which are accessible via direct links from the
Channel Home Page and/or Category Menu Page. News Headlines and/or Feature
Headlines from NBS may also be placed on Feature Pages; these News Headlines
and/or Feature Headlines will link to their associated News Stories or Features
on other Feature Pages. Links embedded in News Stories or Features by NDS will
link to pages on the NBS Site such pages will include co-branding per Section
2.1 below. NBS will receive a NBS Promo Box (as described per Section 1.2a
above) on the left-hand column of all Feature Pages which contain NBS News
Stories or Features. The text of the NBS Links will be determined by NBS,
subject to approval by Microsoft.
d. MSN HOME PAGE. Microsoft may, in its sole discretion, place
NBS Headlines on the default MSN Home Page when the situation warrants (i.e. big
events, celebrity interviews, or breaking news). These Headlines will link to
their associated stories located on the Feature Pages.
e. OTHER PLACEMENT. Microsoft may, in its sole discretion,
also place NBS Headlines News Stories or Features on other MSN Entertainment
Channel pages or within Local Channel pages where appropriate (e.g., a bus tour
through New York City will be covered by the New York City Guide within the MSN
Local Channel). These Headlines will
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link to their associated stories located on the Feature Pages. Microsoft will
also make reasonable efforts to include NBS related promotion links in relevant
Entertainment Channel newsletters. Such links will link newsletter subscribers
to NBS Content hosted on MSN or on the NBS Site.
f. MSN COMMUNITIES AND CHAT. Microsoft will make commercial
reasonable efforts to work with NBS to (i) set up an official NBS community
(monitored and managed by NBS staff) that focuses primarily on discussion topics
relating to NBS, and (ii) set up online chat sessions hosted by celebrities
provided by NBS.
g. In connection with the placement of Content as described in
this Agreement, NBS hereby grants Microsoft (and the third parties with whom
Microsoft contracts to create and distribute MSN) the non-exclusive (except as
to the Content described in 2.2 below, in which NBS grants Microsoft an
exclusive right), royalty-free, worldwide right to use, display and distribute
all Content, including NBS's trademarks and logos. NBS further grants Microsoft
the right to make minor formatting changes to editorial content for presentation
purposes only (for example, truncating lengthy headlines, reformatting text to
fit within page space limitations) without the need for prior approval by NBS.
NBS shall retain all ownership rights to the Content and its trademarks and
logos. Microsoft shall retain all its ownership rights to its intellectual
property.
1.3 DELIVERY. NBS agrees to deliver Content to Microsoft according
to the specifications and delivery schedule set forth in Exhibit A. NBS shall
use its best efforts to deliver Content that is complete, acceptable in style
and quality, and free of errors, including without limitation, errors in
grammar, punctuation and spelling. It is understood, however, that any such
errors shall not constitute a material breach of this Agreement unless NBS fails
to correct such errors within 24 hours upon receiving notice of such error(s).
However, that the foregoing shall not apply to minor error(s) in spelling or
punctuation, which Microsoft, with NBS's permission, may itself correct, and
such errors shall not constitute a material breach of this Agreement. NBS
understands that there may be additions, deletions or other changes that may
affect the specifications, at any time during the term of this Agreement. Upon
notice of any such changes by Microsoft, NBS and Microsoft shall work together
to make any necessary changes to the specifications, and NBS shall use its best
efforts to alter delivery methods and/or Content in order to accommodate any
such chances to the specifications within one week following notice thereof.
Microsoft reserves the right, after consultation with NBS and after NBS has had
reasonable time to make corrections, not to post any Content that does not meet
the specifications.
1.4 CONTENT DEVELOPMENT. NBS agrees to regularly consult in good
faith with Microsoft on the topics, editorial quality and timeliness of Content,
and NBS will be respon-
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sible for ensuring that the Content is reflective of the overall commercial
quality of NBS's products and services as of the Effective Date.
1.5 COSTS AND REVENUES. All costs associated with the placement of
Content on the MSN Entertainment Channel as set forth in this Section shall be
the sole responsibility of Microsoft. Microsoft shall retain all revenues
(including all advertising revenues) that are generated from the MSN
Entertainment Channel and/or any other MSN pages on which NBS's Content receives
placement.
2. NBS OBLIGATIONS. In consideration of the foregoing, NBS agrees to
undertake the following obligations, respectively.
2.1 CO-BRANDING. All NBS Site pages accessed by end users via
hyperlinks from NBS Content on MSN, per this Agreement, shall conform to the
co-branding specifications defined in Exhibit A. Additionally, Microsoft will
use best efforts to assist NBS in the technical implementation of the
co-branding. Use of the Microsoft Logo, or any replacement logo Microsoft may
provide from time to time during the Term of this Agreement, shall be only in
accordance with the Guidelines attached as Exhibit B hereto and which is
incorporated herein by reference.
2.2 EXCLUSIVE AND UNIQUE CONTENT ON MSN.
a. NBS will provide Microsoft with unique content to be
promoted and featured exclusively on XXX.xxx on a weekly basis (e.g. the ability
for viewers to vote and view video tapes but not to the exclusion of viewers
viewing nonexclusive video tapes and voting in the context of NBS' regular
talent contests; special celebrity interviews; promotional contests; special
behind the scenes footage of NBS hosts, coverage of fourty-city bus tour launch
party, etc.). One week after delivery of unique content to Microsoft, NBS may
host and archive such unique content on XXX.xxx. Microsoft and NBS will
structure a detailed, mutually agreeable content arrangement (i.e. content
specifications) at a later date. NBS will not create similar unique content for
any other third party web site during the term of this Agreement.
b. Microsoft will get limited exclusivity (Content will not be
made available by NBS to other online portals) on breaking news, fresh talent
search coverage, access to feeds of performances and special events, like
information on semi-finals or finals of contest on a weekly basis. The foregoing
shall not restrict NBS from promoting its talent contest on television or
through newspaper and other entertainment related print or television. Microsoft
and NBS will structure a detailed, mutually agreeable content arrangement (i.e.
content specifications) at a later date.
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2.3 NBS PROMOTION OF MSN.
a. ONLINE PROMOTIONS. NBS will include prominent MSN text and
logo links throughout the NBS Site to direct users to the exclusive NBS content
hosted on MSN. The placement of these links will be subject to Microsoft's
approval.
b. OFF-LINE PROMOTIONS. Subject to Microsoft's prior approval,
NBS will include and/or mention MSN (brand, logo and url) in all off-line
promotion and marketing activities reasonably within the control of NBS to
increase MSN awareness. Such promotion and marketing activities include, but are
not limited to, bus tours, on-air interviews and appearances, radio interviews,
press kits, signage placement (in stores, t-shirts, tickets), industry
publications.
c. OTHER PROMOTIONS. NBS and Microsoft will work together to
offer promotional contests on MSN (e.g. winners receives free trip to quarterly
finals). NBS will provide some free tickets to quarterly finals as give aways or
promotions on MSN. Both parties agree to continue to work together to launch new
co-marketing initiatives during the term of the Agreement.
d. All uses of the Microsoft Logo, or any replacement logo
Microsoft may provide xxxxx time to time during the Term of this Agreement,
shall be only in accordance with the Guidelines attached as Exhibit B hereto and
which is incorporated herein by reference.
2.4 COSTS AND REVENUES. All production and other costs associated
with the foregoing co-branding and promotions on the NBS Site as set forth in
this Section 2 shall be the sole responsibility of NBS, respectively, accept as
provided elsewhere in this Agreement. NBS shall retain all respective revenues
(including all advertising revenues) that are generated from the NBS Site,
including the co-branded pages residing on NBS's servers.
3. EDITORIAL CONTROL. Subject to any express requirements set forth in
this Agreement, the placement and content mix, tone, style, wording and graphic
design of editorial content, including editorial promotions such as display copy
and highlights, and positioning of categorical content on navigation bars within
MSN and the MSN Entertainment Channel is at the sole discretion of Microsoft. In
the event Microsoft chooses to alter the Content provided by NBS (except as
allowed in Sec 1.2 and 1.3), per this Section 3, NBS shall retain the right to
review such alterations and require modifications to preserve the original
editorial intent of such Content. Should the parties fail to mutually agree on
Content modifications, the Content in dispute shall be removed and/or replaced
with other Content from the NBS Site. Subject to any express requirements set
forth in this Agreement, the placement and content mix, tone, style, wording and
graphic design of editorial content, including editorial promotions such as
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display copy and highlights, and positioning of categorical content on
navigation bars on the NBS Site is at the sole discretion of NBS.
4. PRESS RELEASES. None of the parties will issue any press release or
make any public announcement(s) relating in any way whatsoever to this Agreement
or the relationship established by this Agreement without the express prior
written consent of the other party(ies), which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, the parties may make factual
informational references to the MSN Entertainment Channel and the NBS's
participation in such MSN Entertainment Channel in other publicity and press
releases without obtaining the other party's consent.
5. CONFIDENTIALITY. Microsoft and NBS have entered into a Microsoft
Non-Disclosure Agreement, dated 1/18/00. The parties agree that the terms of
such agreements shall be deemed incorporated herein, and further, that all terms
and conditions of this Agreement shall be deemed Confidential Information as
defined therein.
6. REPRESENTATIONS, WARRANTIES AND INDEMNITY.
6.1 NBS. NBS hereby represents and warrants that: (i) NBS has
sufficient authority to enter into this Agreement; (ii) the Content delivered by
NBS to Microsoft pursuant to this Agreement does not and will at all times not
infringe any copyright, trade secret, trademark, or other personal or
proprietary right held by any third Party; (iii) NBS has the full and exclusive
right to grant or otherwise permit Microsoft to use the trademarks and logos set
forth in this Agreement, and that it is aware of no claims by third parties
adverse to any of such trademarks or logos; (iv) the NBS Site and all actions on
the NBS Site are in compliance with all applicable laws; (v) to the extent that
the Content contains third party materials, NBS has secured in writing all
necessary third party permissions so that no further permissions and/or payments
of any kind will be required by Microsoft for Microsoft's use of the Content as
contemplated herein; and (vi) the Content does not and will not contain any
messages, data, images or programs which are, by law, defamatory, obscene, or
pornographic or in any way violate any applicable law. NBS hereby agrees to
indemnify, pay the defense costs of, and hold MS harmless from any and all
claims, demands, costs, liabilities, losses, expenses and damages (including
attorneys' fees, costs, and expert witnesses' fees) arising out of or in
connection with (a) any claim that (i) the Content violates any copyright, trade
secret, trademark, or other proprietary right of any third party; (ii) third
party permissions or licenses are required for MS to exercise any of its license
rights with respect to the Content, including without limitation the use,
modification, distribution and licensing of the Content; (iii) the Content is
libelous, or violates any rights of privacy and/or publicity of any third party;
or (iv) any instruction, advice, or information contained in the Content was
inaccurate, false, misleading, or otherwise injurious to the end user; or (b)
any claim which, taking the claimant's allegations to
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be true, would result in a breach by NBS of any of NBS's warranties and
covenants set forth in this Agreement. Prompt notice shall be given to NBS of
any claim to which the foregoing indemnity relates. NBS is, or within 90 days
after the execution of this Agreement will become, a member in good standing in
the TRUST-E privacy program, and will remain such or be a member in good
standing of another industry-recognized online privacy organization during the
Term. To the extent NBS collects personally identifiable information from its
users on its own site, NBS will adhere to information gathering, dissemination,
privacy protection and other practices specified in the TRUST-E license
agreement available at xxxx://xxx.xxxxxx.xxx, as such agreement may be amended
from time to time or such other organization's license.
6.2 MICROSOFT. Microsoft hereby represents and warrants to that:
(i) it has sufficient authority to enter into this Agreement; (ii) it has the
full and exclusive right to grant or otherwise permit NBS to use the trademarks
and logos set forth in this Agreement, and that it is aware of no claims by
third parties adverse to any of such trademarks or logos; and (iii) Microsoft's
modifications of Content will not cause otherwise non-defamatory and
non-infringing Content to defame or infringe the intellectual property rights of
any third party or otherwise violate any third party's personal or proprietary
rights, and (iv) the Microsoft hosted MSN Entertainment Channel and Local
Channel pages which contain Content, MSN links and MSN promotions on the NBS
Site, and the elements of the online or offline Promotions do not and will not
contain any messages, data, images or programs which are, by law, defamatory,
obscene, or pornographic or in any way violate any applicable US law. Microsoft
will indemnify NBS from and against any loss, claim, liability, damage, action
or cause of action (including, without limitation, reasonable attorneys' fees)
brought against NBS by a third party and arising from or related to (1) any
content, including but not limited to the sweepstakes and/or other content
related to the promotions, supplied by Microsoft under this Agreement, (2) any
claim that the MSN Entertainment Channel (exclusive of Content) violates any
rights of any third party, including any copyright or trademark, or (3) any
breach by Microsoft of the foregoing warranties. Prompt notice shall be given to
Microsoft of any claim to which the foregoing indemnity relates. NBS reserves
the right to immediately discontinue the placement of any contested elements of
any Microsoft content (including links to the MSN Site) on NBS or elsewhere as
provided in this Agreement, pending the satisfactory resolution of such matter,
in the event that NBS receives written notice which makes a reasonable and valid
allegation that such contested elements delivered hereunder (a) violate any
applicable US laws, and/or (b) infringe the copyrights, trademarks, service
marks or any other proprietary right of any third party.
The warranties and representations in this Section 6 are continuous in nature
and shall be deemed to have been given by each party at execution of this
Agreement and at each stage of performance hereunder.
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6.3 DISCLAIMER. THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES MADE BY
THE PARTIES. EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR REPRESENTATION
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO PARTY WARRANTS THAT ACCESS TO OR USE OF
THE RESPECTIVE WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY
SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR
QUALITY.
7. LIMITATION OF LIABILITY. NO PARTY SHALL BE LIABLE TO THE OTHER(S) FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING
OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS SECTION SHALL NOT APPLY TO ANY PARTY'S (A) ABILITY TO OBTAIN
INJUNCTIVE OR OTHER EQUITABLE RELIEF; (B) CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 5; AND (C) WARRANTIES AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.
8. TERM AND TERMINATION.
8.1 TERM. The term of this Agreement ("Term") shall commence on
the Effective Date and end on the day before the first anniversary of the Start
Date, unless earlier terminated as provided in this Section 8. For purposes of
this Agreement, the term "Start Date" shall mean February 15, 2000.
8.2 RENEWAL. If any party(ies) desires to extend the Term, then
such party shall give written notice to the other party(ies) no later than sixty
(60) days prior to the expected expiration date. If no such notice is given,
this Agreement shall terminate as set forth in Section 8. 1.
8.3 TERMINATION BY EITHER PARTY FOR CAUSE. In addition to any
other rights and/or remedies that a party(ies) may have under the circumstances,
all of which are expressly reserved, any party(ies) may suspend performance
and/or terminate this Agreement immediately upon written notice at any time if,
(a) The other party(ies) is in material breach of any material
warranty, representation, term, or condition of this Agreement, other
than those contained in
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Section 5, and fails to cure that breach within thirty (30) days after
written notice thereof; or
(b) The other party(ies) is in material breach of Section 5.
8.4 TERMINATION FOR CHANGES IN BUSINESS. Microsoft may terminate
this Agreement sixty (60) days after Microsoft notifies NBS in writing that: (a)
Microsoft intends to cease the production and operation of MSN and/or the MSN
Entertainment Channel within ninety (90) days following such notice, or (b)
Microsoft intends to delegate primary responsibility for MSN Entertainment
Channel programming, production, content selection and/or editorial matters to a
third party not under the control of Microsoft within ninety (90) days following
such notice. NBS may terminate this Agreement sixty (60) days after NBS notifies
Microsoft in writing that: (a) NBS intends to cease the production and operation
of NBS Site within ninety (90) days following such notice, or (b) NBS intends to
delegate primary responsibility for NBS Site programming, production, content
selection and/or editorial matters to a third party not under the control of NBS
within ninety (90) days following such notice. Upon the effective date of any
such termination, neither party shall have any further contractual rights or
obligations to the other. For purposes of this paragraph, "control" shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, corporation, partnership,
association or other entity or organization, whether through ownership of voting
shares, by contract, or otherwise.
8.5 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Without limitation in
such parties' rights or remedies as a result of such default, either party may
terminate this Agreement immediately following written notice to the other party
if the other party: (i) ceases to do business in the normal course; (ii) becomes
or is declared insolvent or bankrupt; (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or involuntary)
which is not dismissed within ninety (90) calendar days or (iv) makes an
assignment for the benefit of creditors, each of which shall be considered a
material default.
8.6 EFFECT OF TERMINATION. Upon the expiration or termination of
this Agreement, Microsoft shall cease the publication of Content, including the
use of NBS logos and trademarks, except as otherwise specifically provided
hereunder, and NBS shall cease using the Microsoft Logo or other Microsoft
branding and shall, upon request by Microsoft, immediately remove any hyperlinks
from the NBS Site to MSN. In the event of termination or expiration of this
Agreement for any reason, Sections 5, 6, 7, 8 and 9 shall survive termination.
9. GENERAL.
9.1 NOTICES. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or in the
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Xxxxxx Xxxxxx xx Xxxxxxx mails, postage prepaid, certified or registered, return
receipt requested, and addressed as follows:
NOTICES TO NEXTBIG STAR, LLC: NOTICES TO MICROSOFT:
Next Big Star, LLC Microsoft Corporation
c/o Victory Entertainment Corporation ONE MICROSOFT WAY
1000 UNIVERSAL STUDIO FLORIDA, XXXXXXX, XX 00000-0000
BUILDING 22-A
XXXXXXX, XX 00000 Attn: MSN Business Development
Telephone: (000) 000-0000
ATTN: XXXXXXX X. XXXXXX, PRESIDENT/CEO Fax: (000) 000-0000
Telephone: (000) 000-0000 email/Internet address: XXXXXXXX@XXXXXXXXX.XXX or
Fax: (000) 000-0000 DONSENA(@XXXXXXXXX.XXX
email/Internet address: xxxxxxxxxx@xxx.xxx
Copy to: Xxxxxxx Xxxxxxx, Esq. Copy to: Microsoft Corporation Law & Corporate
Xxx Xxxxxxx & Xxxxx LLP Affairs
One Xxx Xxxxxxxxxxxx Plaza, Xxx Xxxxxxxxx Xxx
00xx Xxxxx Xxxxxxx, XX 00000-0000
Xxx Xxxx, XX 00000-0000 Attn: XXX.xxx Legal Unit
Telephone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000)000-0000
Email/Internet address: XXXXXXXX@XXXXX.XXX
or to such other address as a party may designate pursuant to this notice
provision.
9.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
merges all prior and contemporaneous communications. It shall not be modified
except by a written agreement dated subsequent to the date of this Agreement and
signed on behalf of NBS and Microsoft by their respective duly authorized
representatives.
9.3 ASSIGNMENT. No party may assign this Agreement, or any portion
thereof, to any third party unless the other parties expressly consent to such
assignment in writing. Notwithstanding the preceding sentence, any party may
assign this Agreement or any portion thereof to any subsidiary, affiliate, joint
venture, partnership, or limited liability company in which such party owns or
controls fifty percent (50%) or more of the voting securities. The parties may
also assign this agreement without the other party's consent to any successor to
the
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party's business, whether by means of acquisition of assets, merger of the
party with another in which case it is not the survivor or sale of 50% of more
of the outstanding stock of the party. Any attempted assignment without such
consent shall give the non-assigning party the right to terminate this Agreement
effective upon written notice.
9.4 GOVERNING LAW. This Agreement shall be construed and governed
in accordance with the laws of the State of Washington. In any action or suit to
enforce any right or remedy under this Agreement or to interpret any provision
of this Agreement, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
9.5 CONSTRUCTION. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the remainder
of this Agreement will continue in full force and effect. Failure by any party
to enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against any party.
9.6 RELATIONSHIP OF PARTIES. Neither this Agreement, nor any terms
and conditions contained herein, shall be construed as creating a partnership,
joint venture, agency relationship or granting a franchise between the parties.
9.7 "Microsoft" shall mean Microsoft Corporation, its
subsidiaries, affiliates, and the joint ventures, partnerships, and limited
liability companies in which Microsoft participates with control of fifty
percent (50%) or more of the voting securities.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
MICROSOFT CORPORATION NEXT BIG STAR, LLC
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By (Sign) By (Sign)
------------------------------------- ---------------------------------------
Name (Print) Name (Print)
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Title Title
1/24/00 1/22/00
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Date Date
EXHIBIT A
SPECIFICATIONS AND SCHEDULE
1. GENERAL SPECIFICATIONS.
a. CONTENT SPECIFICATIONS.
i. "News Stories" (and their associated News Headlines) should
contain information about talent search in the entertainment
industry and tour and contest news that is current and appeals
to a general audience, and may include relevant photos,
images, graphics or other media. News Stories are not
advertisements; the News Stories must be high quality and the
standard of newsworthy must be applied to this Content. NBS
will make best efforts possible to provide Microsoft with at
least two News Stories per week during the course of this
Agreement.
ii. "Features" (and their associated Feature Headlines) shall
mean articles that don't necessarily conform to the narrower
"news" definition and might include artist profiles, star
interviews, Q&A, reports on events and trends. NBS will
provide Microsoft with at least two features (with photos or
other visuals) per week during the course of this Agreement.
Upon Microsoft's occasional request, NBS will provide
additional Features, such as special event coverage, seasonal
event reporting, or other content appearing on the NBS Site,
for publication on Feature Pages.
b. PERFORMANCE SPECIFICATIONS.
i. Microsoft and NBS will make best efforts to provide a
standard of performance to match any leading web site.
ii. The parties shall work together to implement the
procedures as reasonably necessary to ensure that Microsoft is
notified of all site failure(s) or significant decline(s) in
performance.
2. DELIVERY SCHEDULE. Content shall be delivered according to the
following:
NBS guarantees that all News Stories and News Headlines will be updated daily
within an area on an NBS server (see File Specifications below) by 12:00
midnight PST. However, the infrequent and unintentional failure to update News
Stories and News Headlines by 12:00 midnight PST by NBS will not constitute a
material breach of this Agreement. The Features and NBS Links will be provided
in the same area and will be updated each week. NBS agrees to work with
Microsoft to implement a mutually agreeable system to notify Microsoft after any
breaking News Story is published during the day.
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3. CO-BRANDING SPECIFICATIONS. The MSN Template includes the following
components
i. The Network headers and footers. It will be included on the
NBS page that receive MSN traffic in the manner provided by Microsoft.
ii. The Network Promotion Inventory. It will be included on
the first co-branded NBS page users arrive from MSN.
4. FILE SPECIFICATIONS. Content will be delivered in the following format:
NBS will provide Microsoft with access to an area on an NBS server which will
automatically harvest the appropriate content for distribution per this
Agreement. This dedicated area on an NBS server will contain only files for MS
per this Agreement. The content will update per the Delivery Schedule determined
by the parties.
5. NBS SUPPORT.
Key Contact. NBS will assign a member of their staff to be the main point of
contact for all issues related to NBS Site and NBS Content on MSN, including
editorial questions, request for fixes, technical problems, etc. Such main point
of contact should also have 24-hour backup should he/she be on vacation, sick or
otherwise out of the office. The NBS main point of contact will work within NBS
to ensure all MSN issues are addressed promptly.
a. SUPPORT CONTACTS. NBS's technical support contacts are:
Engineering Issues: Xxxx Xxxx. Phone: 000-000-0000; email:
xxxxx@xxxxxxxx.xxx.
Production Issues: Xxxx Xxxxxx. Phone: 000-000-0000; cell:
000-000-0000; email: xxxxxxxxxx@xxx.xxx.
b. ERROR CORRECTION. If Microsoft does not receive Content due to
transmission problems then NBS must follow the following process and
requirements:
Process for Corrections:
Timing (24 hours)
Format of corrections: html format
Method (Email)
Resubmit Transmission - If for any reason Microsoft does not
receive information due to transmission errors by either party
then NBS must follow the following process and requirements.
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Process for Corrections:
Timing (24 hours)
Format of corrections: html format
Method (Email)
c. ESCALATION PROCEDURES FOR TECHNICAL ISSUES
High priority 24 hr. phone support
Expected 2-4 hour resolution.
Xxxx Xxxx. Phone: 000-000-0000; email: xxxxx@xxxxxxxx.xxx
Less urgent, phone/mail support Expected 72 hour resolution.
Xxxx Xxxx. Phone: 000-000-0000; email: xxxxx@xxxxxxxx.xxx
EXHIBIT B
USING THE MICROSOFT LOGO
1. Microsoft Logo:
2. Usage Guidelines:
The following guidelines apply whenever NBS places a copy of the Microsoft Logo
on the NBS Site, or related collateral materials.
1. Except as Microsoft may authorize elsewhere, NBS may use only
the Microsoft Logo in accordance with the Agreement and guidelines set forth
below. By signing the Agreement, NBS agrees to be bound by these Guidelines.
2. NBS may only use the Microsoft Logo on the NBS Site pages
identified in this Agreement, and not in any other manner. It must always be an
active link to the MSN Entertainment Channel at xxxx://xxxxxxxxxxxxx.xxx.xxx or
other URL(s) as directed by Microsoft.
3. The Microsoft Logo may be used only on the NBS Site as set
forth in the Agreement. The NBS Site title must appear at least as prominent as
the Logo. NBS may not display the Microsoft Logo in any manner that implies
sponsorship, endorsement, or license by Microsoft.
4. The Microsoft Logo must appear by itself, with a minimum
spacing (half the height of the Microsoft Logo) between each side of the Logo
and other graphic or textual elements on NBS Site page other than background
images. The Logo may not be used as a feature or design element of any other
logo.
5. NBS may not alter the Microsoft Logo in any mannerincluding
size, proportions, colors, elements, etc., or animate, morph or otherwise
distort its perspective or two-dimensional appearance.
6. NBS may not use the Microsoft Logo on any site that disparages
Microsoft or its products or services, infringes any Microsoft intellectual
property or other rights, or violates any state, federal or international law.
7. These guidelines do not grant a license or any other right in
Microsoft' logos or trademarks. Microsoft reserves the right in its sole
discretion to terminate or modify permission to
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use the MSN Logo at any time. Microsoft reserves the right to take action
against any use that does not conform to these policies, infringes any Microsoft
intellectual property or other-right, or violates other applicable law.
8. Microsoft reserves the right to change, modify the logo at its
sole discretion.
9. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR
IMPLIED BY LAW REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
