Exhibit 10.3
REAL BROADCAST NETWORK
STREAMING MEDIA SERVICES AGREEMENT
WITH
GLOBAL MEDIA CORP.
APRIL 19, 1999
PREPARED BY:
XXXXXXX EASTERN
SENIOR ACCOUNT EXECUTIVE
REALNETWORKS, INC.
0000 XXXXX XXXXXX
XXXXXXX, XX 00000
TEL: (000) 000-0000
FAX: (000) 000-0000
XXXXXXXX@XXXX.XXX
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This Streaming Media Services Agreement ("Agreement") is effective
as of the last date signed below, by and between GLOBAL MEDIA CORP., with its
principal place of business at 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0 ("Company"), and RealNetworks, Inc., a Washington
corporation with its principal place of business at 0000 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000 ("RN"). Company desires that RN supply
certain streaming media services in connection with the Internet products or
activities of Company, and RN desires to supply such services. In
consideration of the mutual promises and covenants contained herein, the
parties agree as follows:
1. DEFINITIONS
1.1 "Content" means all audio, video or other streaming materials
supplied by or for Company to RN in connection with the performance of
Services by RN pursuant to this Agreement.
1.2 "Services" means the services to be provided by RN to Company
pursuant to this Agreement, as more fully described in Exhibit 2 attached
hereto.
1.3 "Site" means the World Wide Web site located at XXX.XXXXXXX.XXX
and affiliated radio station sites.
1.4 "System" means the equipment and communication network via which
Services are provided, as more fully described in Exhibit 2.
2. COMPANY OBLIGATIONS
2.1 SUPPLY OF CONTENT. Company shall supply Content to RN via
telephone line, ISDN, frame relay, satellite feed or via FTP, according to
the schedule and specifications to be agreed to by the parties.
2.2 LICENSE GRANT. Company hereby grants RN, during the term of this
Agreement, the nonexclusive, worldwide, royalty-free right and license to:
2.2.1 use, reproduce, encode, transmit, publicly perform,
publicly display and distribute Content as necessary or desirable for RN's
performance of Services under this Agreement; and
2.2.2 use the trademarks, logos and trade names of Company and
any third-parties contained in the Content solely in connection with RN's
performance of Services.
2.3 RESPONSIBILITY FOR CONTENT AND THE SITE. Except for the Services
to be provided by RN hereunder, as between Company and RN, Company shall be
completely and solely responsible for all matters relating to Content and the
Site, including, without limitation, all costs, activities, obligations and
liabilities associated with the creation, production, editing, supply,
correction and maintenance of the Content and the Site. Company shall notify
RN when it desires to remove material from Content or the Site, which
material RN shall promptly remove. RN assumes no responsibility for editing,
reviewing, controlling or conducting any other activities associated with
publishing any Content, or (except for the Services) operating or maintaining
the Site, nor shall it have any liability to any third party in connection
with such activities. Company shall have the right to alter, modify or delete
Content under its control at any time, or, if RN's assistance is needed, upon
prior notice to RN.
2.4 SUPPORT. Company shall provide RN with reasonable support and
assistance, as set forth in Exhibit 1 hereto, in connection with RN's
provision of Services throughout the term of this Agreement.
2.5 CLEARANCE. Company shall be solely responsible for obtaining any
necessary rebroadcast or retransmission rights or permissions if it desires
RN to acquire any broadcast signals using DBS, and shall bear all costs,
obligations and liabilities associated therewith.
2.6 ATTRIBUTION. Company agrees to indicate on its Site that the
Content is being delivered on the Real Broadcast Network. Company must
indicate which publicly available files are in the RealAudio (.ra) or
RealVideo (.rm) format. RN hereby grants Company a non-exclusive, limited
license to use, and
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(.ra) or RealVideo (.rm) format. RN hereby grants Company a non-exclusive,
limited license to use, and Company agrees that Company shall always use,
RN's trademarks in accordance with RN's Trademark and Logo Usage Policy at
XXXX://XXX.XXXX.XXX/XXXXXXXXX/XXXXX/XXXXXX.XXXX., and for the sole purpose of
informing web page visitors that RealAudio or RealVideo content is available
at Company's web page. Company agrees that it shall not use any RN trademark
in a way that may imply that it is an agency or branch of RN, or that may
imply that RN endorses, is affiliated with, or sponsors Company or Company's
products, without RN's express written permission. Company also agrees that
Company may not link directly to any media file or .ram file made available
from the RN website.
2.7 EXCLUSIVITY. Company agrees that RN will be the exclusive
provider of streaming media services to Company during the Term.
3. RN OBLIGATIONS
3.1 SERVICES. RN shall supply the Services to Company, and perform
such Services in a workmanlike manner in accordance with the standards
generally prevailing in the industry for similar services. RN shall use
commercially reasonable best efforts to maintain the System and provide the
Services in accordance with Exhibit 2, but shall not be liable to Company or
any third party for any failure to do so due to reasons: (i) beyond RN's
reasonable control, (ii) arising from other than RN's obligations as
expressly set forth in Exhibit 2, (iii) arising in connection with viewer and
listener use of Content in excess of the maximum burstable System capacity
level, and/or (iv) arising from or in connection with problems attributable
to Content. Company acknowledges that RN may use third-party service
providers to supply certain components of the System or the Services.
3.2 REPORTING. RN will generate daily on-line reports, accessible
via a web page, that include the total number of viewers and listeners
accessing the Content and the average time duration observed by RN with
respect to each Content piece.
4. FEES AND PAYMENT
4.1 FEES. Pricing for the Services ("Service Fees") shall be as set
forth in Exhibit 3 attached hereto.
4.2 PAYMENT. RN shall invoice Company for Service Fees performed on
a monthly basis. Company shall pay all taxes, duties and similar charges that
apply to or arise from this Agreement, excluding taxes on RN's income. All
invoices are due and payable in full within 30 calendar days of the invoice
date, to the account and in the manner designated by RN. Notwithstanding the
termination provisions of this Agreement, RN reserves the right to terminate
its Services and this Agreement immediately without further notice if payment
is not received in accordance with invoice terms. Invoiced amounts not paid
when due shall be subject to late fees equal to the lower of 1.5% per month
or the maximum amount allowed by applicable law. Termination of this
Agreement and/or payment of such late fees shall not prejudice any other
rights or remedies that may be available to RN with respect to any nonpayment
or late payment of applicable Service Fees. Service Fee payments are
nonrefundable and not subject to offset.
5. PROPRIETARY RIGHTS
5.1 COMPANY'S OWNERSHIP. As between RN and Company, Company shall be
the sole owner of all right, title and interest in and to Content and the
Site, and all copyrights and other intellectual property rights therein.
Company shall retain title to and ownership in information relating to
viewers and listeners; provided, however, that RN shall have the
nonexclusive, perpetual, irrevocable, royalty-free, worldwide right to use
viewer and listener data and statistics gathered by the System or obtained by
RN during the performance of the Services.
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5.2 RN'S OWNERSHIP. RN shall be the sole owner of all right, title
and interest in and to the System, computer programs, materials, processes
and other works of authorship developed or used by or for RN in connection
with the Content, the Site and/or the provision of Services hereunder, and
all copyrights, patents and other intellectual property rights therein.
6. WARRANTIES AND INDEMNIFICATION
6.1 CONTENT AND AUTHORIZATION WARRANTIES.
6.1.1 Company warrants and represents that: (i) the Content and
any portion thereof does not in any way violate any existing law, infringe
upon or misappropriate any copyright, patent, trademark, trade secret, right
of publicity, right or privacy or other proprietary rights of any third
party, either in whole or in part; (ii) the Content contains no matter which,
if published, will be libelous or defamatory; (iii) it has obtained or will
obtain all necessary consents, licenses, permissions and releases necessary
to xxxxx XX the rights granted hereunder; (iv) the Content complies with all
federal, state and local laws and regulations (including those governing
export and import) that are applicable to the transmission or use of the
Content as permitted or contemplated by this Agreement for each country in
which the Content is intended to be transmitted or delivered; (v) there exist
no outstanding obligations to accord credit to any third party with respect
to, or to respect any third party's rights against changes to, the Content;
(vi) it has the full power and authority to enter into this Agreement and to
perform its obligations hereunder; and (v) Company is solely responsible for,
and has paid or will promptly pay, all amounts due any third-party content
provider or other person or entity that has a right to receive any royalty or
other payment as a result of the transmission or other use of the Content as
contemplated by or provided under this Agreement. Notwithstanding the
foregoing, Company shall not be liable for any material inserted in the
Content by RN other than as supplied, permitted or instructed by Company.
6.1.2 RN warrants and represents that: (i) to the best of its
knowledge, the System does not in any way violate any existing law, infringe
upon or misappropriate any third party proprietary rights, either in whole or
in part; (ii) it has all necessary right, title and interest in and to the
System, including, without limitation, the right to grant Company the rights
granted hereunder; and (iii) it has the full power and authority to enter
into this Agreement and to perform its obligations hereunder.
6.2 INDEMNITIES.
6.2.1 Company hereby agrees to indemnity, hold harmless and
defend RN, its affiliated companies and partners, and their respective
officers, directors, employees and agents from and against any and all
claims, damages, costs and expenses, including reasonable attorneys' fees and
litigation expenses, arising out of or in connection with any Content or the
Site, or act or failure to act of Company or any person or entity other than
RN, or act by RN pursuant to this Agreement or as otherwise instructed or
authorized by Company, including, without limitation: (i) infringement or
violation, or alleged infringement or violation, of any copyright, patent,
trademark, trade secret, right of publicity, right of privacy, or other
third-party proprietary rights; (ii) unfair trade practice, defamation or
misrepresentation; or (iii) Company's breach of the warranties and
representations in Section 6.1.1 and/or the obligations in Section 4.2.
6.2.2 RN hereby agrees to indemnify, hold harmless and defend
Company, its affiliated companies and partners, and their respective
officers, directors, employees and agents from and against any and all
claims, damages, costs and expenses, including reasonable attorneys' fees and
litigation expenses, arising out of or in connection with (i) RN's breach of
the warranties and representations in Section 6.1.2; (ii) any material
inserted in the Content by RN other than as supplied, permitted or instructed
by Company; or (iii) infringement or violation of any copyright, patent,
trademark or trade secret of any third party.
6.2.3 The parties' obligations of indemnification under this
Section 6.2 shall apply to any claims brought by one party against the other
with respect to the indemnified claims. The
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indemnifying party's obligations under this Section 6.2 shall be subject to
the indemnified party providing the indemnifying party (i) reasonably prompt
written notice of any such claim or action and permit the indemnifying party,
through its counsel, to answer and defend such claim or action, and (ii) with
all reasonably required information, assistance and authority to assist in
defending such claim or action. The indemnified party, at its own expense,
shall have the right to employ separate counsel and participate in the
defense thereof. The indemnifying party shall reimburse the indemnified party
upon demand for any payments made or loss suffered by it at any time after
the date hereof based on the judgment of any court of competent jurisdiction
or pursuant to a bona fide compromise or settlement of claims in respect to
any damages to which the foregoing relates and to which the indemnifying
party agrees in writing in advance.
7. CONFIDENTIALITY
"Confidential Information" means any term of this Agreement and any
proprietary information or data, either oral or written, received from and
designated as confidential by the disclosing party. It does not, however,
include information that (i) is already known by the recipient, (ii) becomes
publicly known through no wrongful act of the recipient, or (iii) is received
by the recipient from a third party without similar restriction and without
breach of this Agreement. Each party agrees that it will use the same care to
protect against the unauthorized duplication, use, publication or disclosure
of any such Confidential Information of the other party as it uses to protect
its own proprietary and confidential information, and will not use or
disclose such Confidential Information except in connection with and in
furtherance of the purposes of this Agreement, unless authorized in writing
by the other party. All materials, including copies and summaries, containing
the other party's Confidential Information shall be destroyed or returned to
such party, as instructed by such party, by the recipient promptly upon
termination of this Agreement.
8. TERM AND TERMINATION
8.1 TERM. Unless sooner terminated as provided herein, the initial
term of this Agreement shall commence on the last date signed and accepted by
both parties below and expire THREE YEARS thereafter. This Agreement will
renew automatically for successive terms of the same duration unless and
until Company provides written notification to RN that it desires to
terminate this Agreement, effective 30 days from the date that notice is
received by RN.
8.2 TERMINATION FOR BREACH. If either party breaches any material
provision of this Agreement and such breach has not been cured within 10 days
after the non-breaching party has given written notice to the breaching party
of such breach, then the non-breaching party may terminate this Agreement
effective upon three business days' written notice to the breaching party.
8.3 TERMINATION FOR INSOLVENCY. Either party may, at its option and
upon written notice, terminate this Agreement, effective immediately, should
the other party (i) admit in writing its inability to pay its debts generally
as they become due; (ii) make a general assignment for the benefit of its
creditors; (iii) institute proceedings to be adjudicated a voluntary
bankrupt, or consent to the filing of a petition of bankruptcy against it;
(iv) seek reorganization under any bankruptcy act, or consent to the filing
of a petition seeking such reorganization; or (v) have a decree entered
against it by a court of competent jurisdiction appointing a receiver,
liquidator, trustee or assignee in bankruptcy or in insolvency covering all
or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs, provided such
decree is not dismissed within 45 days.
8.4 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement for any reason, the licenses granted in Section 2.2 shall
terminate, and RN shall remove all Content from the System within 30 days
following such termination or expiration; provided, however, that Company
shall incur any Service Fees accrued during such 30-day period. Except as
provided in Section 8.3, the termination or expiration of this Agreement
shall have no effect on Company's obligation to pay for Services performed
prior to the effective date of such termination or expiration. The provisions
of Sections 5 through 11 shall survive the termination or expiration of this
Agreement.
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9. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY
9.1 WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH ABOVE,
NEITHER PARTY MAKES ANY WARRANTY, AND BOTH PARTIES HEREBY DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO CONTENT OR SERVICES TO BE PROVIDED HEREUNDER.
9.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER IN TORT, CONTRACT OR UNDER ANY OTHER LEGAL THEORY FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR DAMAGE ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF
SUCH DAMAGE OCCURRING.
10. NOTICE
Any notice to be given to either party shall be sufficiently given
on the date of mailing if sent to such party by facsimile, receipt of which
is confirmed by return facsimile, or if delivered personally with receipt
acknowledged, or sent by first-class registered or certified mail, overnight
courier, or the equivalent, return-receipt requested, postage or charges
prepaid, addressed to such party at the address set forth above, to the
attention of Xxxxx Xx XxxXxxxxx, VP and General Counsel of RN, and for
Company.
11. MISCELLANEOUS
This agreement and Exhibits 1-3 attached hereto, incorporated herein
by this reference, constitute the final agreement between the parties, and
supersede and cancel all prior negotiations, understandings, correspondence
and agreements, oral and written, express or implied, between the parties
relating to the subject matter hereof, and shall be binding only when
executed by both parties hereto. No waiver, amendment or modification of any
provision of this Agreement shall be effective unless it is in a document
that expressly refers to this Agreement and is signed by both parties.
Failure or delay by either party in exercising any rights or remedy under
this Agreement shall not operate as a waiver of any such right or remedy. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the legality, validity
and enforceability of the remaining provisions shall not, in any way, be
affected or impaired thereby. This Agreement shall be governed by the laws of
the State of Washington, excluding that body of law known as conflicts of
law. Any and all unresolved disputes arising under this Agreement shall be
submitted to arbitration in the State of Washington. The arbitration shall be
conducted under the rules then prevailing of the American Arbitration
Association. The award of the arbitrator shall be binding and may be entered
as a judgment in any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives the day and year first written below.
REALNETWORKS, INC. Company GLOBAL MEDIA CORP.
----------------------------
By: Xxx Xxxxx By: Xxxxxxx Xxxxxxxx
------------------------------- --------------------------------
Name
General Manager, RBN President
--------------------------------
/S/ XXX X. XXXXX Title
-------------------------------
Signature /S/ XXXXXXX XXXXXXXX
--------------------------------
4/20/99 Signature
-------------------------------
Date 20 APRIL 99
--------------------------------
Date
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XXXX TO INFORMATION:
--------------------
Name: _____________________________
Title: ____________________________
Address: __________________________
City: _____________________________
State: ____________________________
Zip Code: _________________________
Phone: ____________________________
Fax: ______________________________
Email: ____________________________
PO Number (if available): _________
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EXHIBIT 1
COMPANY SUPPORT
PREPARING AUDIO AND VIDEO
1. Company will provide all on-demand media files using the Encoding Software
(e.g., audio, video, animation and other media file types as they become
supported by the Real Broadcast Network and as Company may then elect to
provide) encoded in the file format appropriate for each stream type to the
Broadcast Operations Center (BOC) via the File Transfer Protocol (FTP).
2. Company agrees to utilize the virtual file name convention established by
RN for all streaming media files, including those encoded by RN and those
encoded by Company.
3. Company agrees to furnish RN with the URL for each live or simulated live
stream remotely encoded by Company. Using the conventions established by
RBN operations.
FEED ACQUISITION
4. Company shall take the appropriate measures to ensure that all live or
simulated live feeds will be delivered continuously to the BOC 24
hours/day, 7 days/week, except for scheduled maintenance. If feed is
provided to RN via satellite and Company intends to utilize transmission
methods which are proprietary or uncommon, Company agrees to provide the
receiver equipment to RN and to allow adequate time for setup and testing
of equipment prior to delivery of live content.
5. At Company's election, Company agrees to deliver live feeds to the BOC via
satellite, frame relay or ISDN.
6. Company will encode feeds to be delivered to BOC via ISDN and dedicated
frame relay. If program archive is desired, Company will be responsible for
archiving live broadcasts and delivering the files to the BOC via FTP.
7. Company agrees to provide the following to RN prior to the delivery of any
live feed to the BOC via frame relay:
- Dedicated point-to-point frame relay connection between Company's
encoder and BOC Exact date and time of frame relay activation.
- At least sixty (60) calendar days notice for before activation of
full-time (24 hrs/day, 7 days/week) feed delivery.
- At least 15 minutes of full system testing time at least five working
days before activation of full-time feed delivery. Working day is
defined as Monday - Friday, 9am - 6pm, Pacific Time.
- Company agrees to utilize frame relay equipment that has been certified
by Real Broadcast Network (RBN) Operations. Both parties shall be
responsible to ensure that Company's live feeds can interface with the
RBN frame relay system.
8. Company shall provide the following to RN prior to the delivery of any live
feed to the BOC via ISDN:
- Dedicated point-to-point ISDN connection between Company's encoder and
BOC
- Exact date, time and duration of ISDN call.
- At least five working days notice for single events, and seven working
days notice for multiple events
- Calling ISDN number. For Church pricing located in Exhibit 3, Individual
churches are responsible for calling into BOC at time of event.
- At least 15 minutes of full system testing time at least 2 working days
in advance of any event that uses a new or unique configuration. Full
system tests require Company to make content available via ISDN
utilizing the same telephone number which will be used for the actual
event. Working day is defined as Monday - Friday, 9am - 6pm, Pacific
Time.
- Company agrees to utilize ISDN equipment that has been certified by
Real Broadcast Network (RBN) Operations. Both parties shall be
responsible to ensure that Company's live feeds can interface with the
RBN ISDN system.
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9. Company shall provide the following to RN prior to the delivery of any live
feed to the BOC via satellite:
- Exact date & time of satellite transmission
- At least 5 working days notice for single events, and 7 working days
notice for multiple events
- Satellite name, coordinates, transponder number, required receiver
type, decoder type and decoder authorization (if required).
- At least 30 minutes of full system testing time at least 2 working days
in advance of any Event that uses a new or unique configuration. Full
system tests require company to uplink content to satellite utilizing
same transponder and encoding system as that which will be used for the
actual event.
GENERAL TERMS
10. Upon notification by RN, Company shall use commercially reasonable best
efforts to remove Content files from RBN system that meet either of the
following criteria:
- Content files that have not been accessed for 6 months.
- Content files for which no public URLs exist.
11. Company gives permission to RealNetworks to use sample media clip and
company logo for promotional purposes. RN will adhere to company trademark
and usage policies.
12. Company will be the first point of contact for all customer service issues
including but not limited to RBN installation, Real Player, and sales
questions. RBN technical support will be available if additional support is
needed for RBN related services.
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EXHIBIT 2
RN OBLIGATIONS
SERVICES
1. RN will use commercially reasonable means to serve as many simultaneous
streams as are required to meet the demand for live and on-demand content.
2. RN will provide setup support and provide 24x7 network management and
monitoring support.
3. RN will provide Company the URL for each live stream encoded by RN within
the Broadcast Operations Center.
4. RN will provide usage statistics for all Company content hosted on Real
Broadcast Network. RN will provide Company with daily online reports.
5. RN will provide storage up to the amount listed in Exhibit 3 for encoded
live and on-demand files.
6. RN will deliver the Broadcast Services in accordance with published
specifications and the provisions of Exhibit 3.
7. RN will serve live and stored content 24 hours per day, 7 days per week
except for at times of scheduled maintenance for the term of the agreement.
8. RN agrees to make commercially reasonable efforts to promote Company
programming on various RealNetworks web sites, including RealGuide and
others. RN agrees to list Company properties in all relevant categories in
all guide listings and searches including RealGuide. Additional promotion
is contingent on the nature of the Global Media programming; on available
space on RealGuide and future promotional vehicles; and on Global Media
notifying RN of programming Global Media wishes to promote at least one
week in advance for scheduled events and as quickly as possible for
breaking news. Global Media may notify RN of specific audio and video
programming by sending email to XXXXXXXXXX@XXXX.XXX.
9. RN and Company will treat the terms of this agreement as confidential
information.
10. RN will encode feeds acquired from satellite transmission.
11. RN will provide encoding software to Company for use in creating on-demand
files in accordance with the terms of RN's software licensing agreement.
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PRICING
GENERAL TERMS
Special charges may apply if RealNetworks needs to acquire special equipment to
serve Company's needs. These charges will be discussed with Company prior to
Company's performing any obligations under this Agreement.
1. Pricing as follows:
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[Omitted confidential information has been filed separately with the
Securities and Exchange Commission]
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[Omitted confidential information has been filed separately with the
Securities and Exchange Commission]
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