AGREEMENT
This Agreement is dated as of December 3, 1999, between Entertainment
Boulevard, Inc., a Nevada corporation located at 00000 Xxxxxx Xxxxxxxxx,
Xxxxx X, Xxx Xxxxxxx, XX 00000 ("EBLD"), and Youthline USA, Inc., a Delaware
corporation, located at 0000 XX0, Xxxxxx, Xxx Xxxxxx 00000 ("YUSA"). In
consideration of the mutual premises and undertakings stated herein, the
parties hereto agree as follows:
1. TRADEMARKS
1.1 EBLD IDENTITIES ON YUSA SITE. EBLD hereby grants a
non-exclusive cost-free license (without the right of
sublicense other than to YUSA customers or Schools) throughout
the Term of this Agreement to YUSA to use the EBLD name and
logo and other proprietary identities of EBLD (collectively,
"EBLD Xxxx(s)") in connection with YUSA's website called
"Xxxxxxxxx-XXX.xxx" ("Xxxxxxxxx-XXX.xxx") currently located
at xxxx://xxx.xxxxxxxxx-xxx.xxx, solely as stated in Exhibit A.
2. DEVELOPMENT OF YUSA WEBSITE
2.1 RESPONSIBILITIES OF EBLD. EBLD shall be responsible for the
development and enhancement of the YUSA website, all in
accordance with the specifications, and to the satisfaction of
YUSA. All changes with respect to the YUSA website shall be
made by EBLD. EBLD acknowledges that the YUSA site must be
relaunched no later than January 3, 2000. After the YUSA site
is relaunched, EBLD shall be required to provide weekly
services (for no additional charges) of no less than 20 hours
nor more than 40 hours (as requested by YUSA).
2.2 EBLD SERVER. EBLD shall host the YUSA website ans shall provide
access through its server at a site agreed upon by YUSA. YUSA
may, at its sole discretion, decide to host the website and
provide an alternate server for same.
3. CONTENT
3.1 SITE PRODUCTION. EBLD shall build, serve, and produce the
Xxxxxxxxx-XXX.xxx website. EBLD shall give YUSA a pass code in
order for YUSA to upload content to the Xxxxxxxxx-XXX.xxx
website. All content contained on the Xxxxxxxxx-XXX.xxx will
be approved exclusively by YUSA.
3.2 MULTIMEDIA CONTENT. EBLD will provide YUSA the right to add
any of EBLD's content, products or services on the YUSA
website. YUSA will have sole and absolute authority to provide
such content, products or
services to the YUSA website. In addition, EBLD shall provide
new multimedia products as requested by YUSA.
3.3 LICENSE. (a) EBLD hereby grants a non-exclusive cost-free
license (without the right of sublicense other than to YUSA
customers or Schools) throughout the Term of this Agreement to
YUSA to use the certain content owned and/or controlled by
EBLD, as described on Exhibit A (collectively, "EBLD Content")
in connection with YUSA, solely as stated on Exhibit A. YUSA
will not establish any direct hypertext links between
Xxxxxxxxx-XXX.xxx and the site of an EBLD competitor as
outlined in Exhibit B.
(b) All content on the website as of the termination date of
this Agreement shall be the property of YUSA. All streaming
content (audio and video) shall continue to remain on the YUSA
website (for no charge) so long as same is still licensed
(including renewals thereof) to EBLD.
(c) EBLD may not publish any of the YUSA website content on
its own site but may only provide a hypertext link to the YUSA
site. Nor can EBLD license any of such content to any third
party. None of the EBLD sites may contain any educational
childrens programming (other than the reference to the YUSA
site), unless YUSA decides not to provide such specific
content on its own site. EBLD may not offer its services,
content or products to any other childrens
educational/entertainment company during the term of this
Agreement. EBLD may not establish hypertext links between EBLD
sites and the sites of any YUSA competitor as outlined on
Exhibit C (which may be updated from time to time by YUSA).
3.4 PROMOTION. EBLD shall actively promote the YUSA website within
its own site.
3.5 PUBLICATION OF CONTENT. Neither party will use the Content of
the other's site in any way without the consent of the other.
All content, technology, systems, etc. developed by EBLD on
behalf of YUSA, shall belong to YUSA at the termination of
this Agreement.
3.6 QUALITY CONTROL. EBLD agrees to maintain the quality of the
site of the Xxxxxxxxx-XXX.xxx site to a level satisfactory to
YUSA. If YUSA, in its reasonable discretion, determines that
the Xxxxxxxxx-XXX.xxx site falls below its expectations and
does not otherwise meet its editorial standards, YUSA will
notify EBLD to that effect in writing giving specific details
of the failure to meet such expectations or standards, and
EBLD will remedy the deficiencies specified in such notice
within 30 days after the date of its receipt of that notice.
If, following such 30-day period, the quality of the
Xxxxxxxxx-XXX.xxx site has not sufficiently improved, YUSA
may
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terminate the Agreement effective immediately upon the receipt by
the other party of notice of termination. EBLD shall be responsible
to cure any material malfunctions or problems with the site within
24 hours of notice of same.
3.7 LIMITATION OF RIGHTS. YUSA's use of the EBLD's Marks and Content
as well as the use of the any content described on Exhibit A, is
strictly limited to the uses stated in this Agreement. Neither
party acquires any rights in or to the other party's Marks
and/or the goodwill inherent therein by this Agreement or
otherwise. All rights granted under this Agreement, including
the right to use the other party's Marks or Content, or to link
to the other party's Content shall revert to the granting party
upon termination, other than as set forth herein.
4. FINANCIAL
4.1 PRODUCTION EXPENSES. Each party will be solely responsible for its
own expenses incurred in undertaking its rights and
responsibilities under this Agreement and otherwise in operating
its website.
4.2 PRODUCTION FEE. YUSA shall pay to EBLD a one-time fee of two
hundred thousand dollars ($200,000). One hundred thousand
dollars ($100,000) shall be due upon signature of this
Agreement, and the additional one hundred thousand dollars
($100,000) shall be due upon the re-launch of the
Xxxxxxxxx-XXX.xxx website. The relaunching of the YUSA site
shall be no later than January 3, 2000. If same is not completed
at such date, EBLD shall return the $100,000 payment referred to
above.
4.3 ADVERTISING.
(a) RETAINED RIGHTS. Each party will have the right to continue
to transact advertising and promotional programs for its own
website, to retain all advertising inventory and set all
packaging and pricing for any advertising thereon. No such
arrangements by a party can allow for any third-party use of the
other party's Marks or Content without the prior written
approval of that other party. The parties acknowledge that both
YUSA and EBLD are entitled to sell advertising on the YUSA site,
PROVIDED, HOWEVER, all such advertising is pre-approved by YUSA
to ensure appropriateness of same.
(b) ADVERTISING GUIDELINES. YUSA will not sell any advertising for
Xxxxxxxxx-XXX.xxx to the parties listed on Exhibit B attacthed
hereto. EBLD will not sell advertising for EBLD sites to the
parties listed on Exhibit C attached hereto.
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(c) PAYMENTS. Each party shall pay to the other with respect to all
advertising revenues generated a sum equal to that percent of the
gross revenues actually received on behalf of the Xxxxxxxxx-XXX.xxx
website hereunder. For the purposes hereof, the Revenue Split will
be as follows: EBLD 50%, YUSA 50%.
(d) PAYMENT SCHEDULE. Each party shall pay the other
its share of revenue within thirty (30) days after the end of each
month.
(e) AUDITS. EBLD or EBLD's designated representative shall have
the right, at YUSA's usual place of business, during business
hours and on reasonable notice to YUSA (but in no event more
than once annually), to examine and copy at EBLD's sole expense
(provided EBLD keeps such copies confidential and uses them
solely in connection with EBLD's audit rights hereunder, in any
proceeding hereunder, or in any necessary business disclosures
to a third party subject to such third party's agreement to
retain such confidentiality) YUSA's books and records to confirm
the accuracy of any such statmenets not otherwise deemed
accepted. In the event that such audit reveals a discrepancy in
the amounts owed EBLD from what was actually paid, YUSA shall
pay EBLD the amount of such discrepancy. If such discrepancy is
in excess of five percent (5%) of the amounts actually paid to
EBLD, YUSA shall reimburse EBLD for the cost of such audit. YUSA
or YUSA's designated representative shall have the right, at
EBLD's usual place of business, during business hours and on
reasonable notice to EBLD (but in no event more than once
annually), to examine and copy (provided YUSA keeps such copies
confidential and uses them solely in connection wtih YUSA's
audit rights hereunder, in any proceeding hereunder, or in any
necessary business disclosures to a third party subject to such
third party's agreement to retain such confidentiality) EBLD's
books and records to confirm the accuracy of any such statements
not otherwise deemed accepted. In the event that such audit
reveals a discrepancy in the amounts owed YUSA from what was
actually paid, EBLD shall pay YUSA the amount of such
discrepancy. If such discrepancy is in excess of five percent
(5%) of the amounts actually paid to YUSA, EBLD shall reimburse
YUSA for the cost of such audit.
4.4 PRODUCT SALES. EBLD and YUSA will offer users the opportunity to
purchase products through an online retail stor (the "Store") as
follows: (it being understood that EBLD shall be exclusively
responsible for development and build-out of the Store).
(a) LINKS. Xxxxxxxxx-XXX.xxx will include a button to link to the
Store in a mutually agreed upon design.
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(b) PRODUCTS. YUSA shall have sole and absolute discretion to
determine the products to be available from the Store.
(c) ORDER PROCESSING. The Store will process product orders
placed by customers who follow these links from
Xxxxxxxxx-XXX.xxx to the Store site. The Store reserves the
right to reject orders that do not comply with any requirements
that the Store periodically may establish. The Store will be
responsible for all aspects of order processing and fulfillment,
including without limitation: preparing order forms; processing
payments, cancellations, and returns; and handling customer
service. The Store will track sales made to customers who
purchase products using the links from Xxxxxxxxx-XXX.xxx and
will send EBLD and YUSA reports summarizing this sales activity.
(d) CUSTOMER DATA. EBLD and YUSA shall both own and retain all
right, title and interest in all names, addresses and other
identifying information of users of the Store. EBLD and YUSA
shall agree upon any future uses (and limitation to same) to
such data base.
(e) FEE SCHEDULE. EBLD and YUSA will share equally in the net
revenue of the Store. "Net Revenue" shall be defined as sales of
product less cost of product and costs for shipping, handling,
gift wrapping and taxes. All funds generated by the Store will
be deposited into a separate bank account of EBLD. The account
will require that all checks, wires, etc. will need two
signatures (one each from EBLD and YUSA).
(f) PRICING. EBLD and YUSA will determine the prices to be
charged for products sold in the Store, other than items
purchased through XXxxx.
(g) TERMINATION. Upon termination, the Store will be the exclusive
property of YUSA.
5. APPROVALS
5.1 PRIOR APPROVAL REQUIRED. All uses by either party of the other
party's Marks and Content must be submitted to and approved by
the other party prior to their use, with such approval not to be
unreasonably withheld. Failure to so seek and receive prior
approval will be grounds for immediate termination of this
Agreement, and such termination right will not constitute a
waiver of any other rights available to a party as a result
thereof.
5.2 NO PUBLICITY WITHOUT CONSENT. Neither party will issue or permit
issuance of any press release regarding the other party or this
Agreement without prior coordination with and approval by the
other party.
6. TERM
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6.1 TERM. This Agreement shall be effective as of the date of this
Agreement, and will continue for two (2) years (the "Term").
6.2 EARLY TERMINATION. Each party shall have the right to terminate
this Agreement immediately on notice: (a) upon a breach of any
material obligation hereunder by the other party other than
those specified in section 4.1, if such breach is not cured
within 30 days following the date the breaching party receives
notice from the non-breaching party describing in reasonable
detail the elements of such breach; (b) in the event the other
party becomes insolvent (i.e., unable to pay its debts in the
ordinary course as they come due); or (c) pursuant to sections
5.1 or 6.1 above.
6.3 EVENTS UPON TERMINATION. Upon the expiration or termination of
this Agreement for any reason, both parties shall immediately
remove all links to the other party's Content and website(s) and
cease all use of the other party's Marks and any and all use of
any kind whatsoever of the other party's Content, other than as
set forth herein.
5.4 SURVIVAL. Sections 3.7, 5.2, 8 and 9 will survive the
termination or expiration of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
Each party to this Agreement represents and warrants to the other that:
(a) such party has all necessary right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
(b) the execution of this Agreement by such party and its performance of
its obligations hereunder do not and will not violate any agreement by
which such party is bound; (c) such party has (and will have throughout
the Term) all necessary rights in an to its Marks, content links and
Content described in this Agreement to allow it to make those indicia and
materials available to the other party and users of that party's website
as contemplated by this Agreement without violating the rights of any
third party; and (d) it has (and will have throughout the Term) all
necessary rights in and to all underlying technology (including both
hardware and software) utilized in connection with its website and all
such underlying technology does not infringe on any patent, copyright,
trademark, trade secret or other intellectual property or proprietary
right of any third party.
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8. INDEMNIFICATION
8.1 MUTUAL INDEMNIFICATION. Each party hereby agrees to indemnify
and hold harmless the other party, its parent and subsidiary
companies and their respective officers, agents, directors,
employees and authorized representatives from and against any
costs, losses, liabilities and expenses, including court costs,
reasonable expenses and reasonable attorney's fees that any of
them may suffer, incur or be subjected to by reason of any
legal action, arbitration or other claim by a third party
arising out of or as a result of a breach of the indemnifying
party's representations and warranties made hereunder, the
operations of the indemnifying party's website as authorized
by this Agreement or otherwise, any allegations that the use
of the indemnifying party's Marks, Content, links and/or
content on its violates any intellectual property rights of
any third party, any allegation that any content on its
website is defamatory or violates any privacy or publicity
rights of any third party, and/or any of its other obligations
under this Agreement.
8.2 INDEMNIFICATION PROCEDURES. If either party entitled to
indemnification hereunder (an "Indemnified Party") makes an
indemnification request to the other, the Indemnified Party
shall permit the other party (the "Indemnifying Party") to
control the defense, disposition or settlement of the matter
at its own expense; provided that the Indemnifying Party shall
not, without the consent of the Indemnified Party enter into
any settlement or agree to any disposition that imposes an
obligation on the Indemnified Party that is not wholly
discharged or dischargeable by the Indemnifying Party, or
imposes any conditions or obligations on the Indemnified Party
other than the payment of monies that are readily measurable
for purposes of determining the monetary indemnification or
reimbursement obligations of Indemnifying Party. The
Indemnified Party shall notify Indemnifying Party promptly of
any claim for which Indemnifying Party is responsible and
shall cooperate with Indemnifying Party in every commercially
reasonable way to facilitate defense of any such claim;
provided that the Indemnified Party's failure to notify
Indemnifying Party shall not diminish Indemnifying Party's
obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of
such failure. An Indemnified Party shall at all times have the
option to participate in any matter or litigation through
counsel of its own selection and at its own expense.
9. CONFIDENTIALITY. All information about the development of the EBLD
Site and the development and launch of Xxxxxxxxx-XXX.xxx disclosed to
YUSA, its officers, directors, employees and/or agents shall be
treated as confidential. All information about the development and
launch of Xxxxxxxxx-XXX.xxx disclosed to EBLD, its officers,
directors, employees and/or agents shall be treated as confidential.
Such confidentiality is of the essence to this Agreement.
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10. GENERAL
10.1 COSTS. Each party shall be responsible for all costs and
expenses incurred by it in connection with the performance of
its obligations under this Agreement.
10.2 ASSIGNMENT. None of the rights and obligations of the parties
to this Agreement may be assigned by either party, except (a)
to the transferee of substantially all of the business
operations of such party (whether by asset sale, stock sale,
merger or otherwise) or (b) to any entity that is controlled
by, or is under common control with, such party.
10.3 RELATIONSHIP OF PARTIES. This Agreement does not create a
joint venture, partnership or principal/agent relationship
between that parties hereto, nor imposes upon either party any
obligations for any losses, debts or other obligations incurred
by the other party except as expressly set forth herein.
10.4 ENTIRE AGREEMENT. This Agreement states the entire agreement
between the parties with respect to its subject matter and
supersedes any prior oral or written agreements. This Agreement
may not be amended except in writing signed by both parties.
10.5 APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New
Jersey, without regard to principles of conflicts of law. Each
of the parties hereto irrevocably consents to the jurisdiction
and venue of the federal and state courts located in the State
of New Jersey.
10.6 INVALIDITY OF PROVISIONS. If any provision of this Agreement
is declared or found to be illegal, unenforceable, or void, in
whole or in part, then the parties will be relieved of all
obligations arising under such provision, but only to the extent
that it is illegal, unenforceable, or void, it being the intent
and agreement of the parties that this Agreement be deemed
amended by modifying such provision to the extent necessary to
make it legal and enforceable while preserving its intent or,
if that is not possible, by substituting therefor another
provision that is legal and enforceable and achieves the same
objectives.
10.7 NOTICE. Any notice due by one party to the other will be given
to the address listed above and marked to the attention of the
signatory specified below, unless a party hereafter designates
a successor address or contact person. All notices will be
transmitted by private courier or facsimile transmission, and
will be deemed given as of the date of a written courier's
receipt or electronic facsimile confirmation report.
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ENTERTAINMENT BOULEVARD, INC. YOUTHLINE USA, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Saki Xxxxxxxx
------------------------- -------------------------
Name: Xxxxxxx Xxxxx Name: Saki Xxxxxxxx
Title: CEO Title: President
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