EXHIBIT 10.39
WEBCAST DISTRIBUTION AGREEMENT
NO.___________________
This Webcast Distribution Agreement ("Agreement") is made on August 3, 1999
("Service Start Date"), by and between iBEAM Broadcasting Corporation-TM-, a
Delaware corporation ("iBEAM"), with offices at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, and Entertainment Boulevard, Inc., a Nevada corporation
("Content Provider"), with offices at 0000 Xxx Xxx Xxxxxx, Xxxxx 000, Xxxxxx Xxx
Xxx, XX 00000.
WHEREAS, Content Provider desires to have iBEAM-TM- distribute, and iBEAM
desires to distribute, certain portions of Content Provider's content and
Internet websites to providers of Internet access services.
NOW, THEREFORE, the parties hereto, for the below mentioned consideration and
other good and valuable consideration recognized by the parties, hereby agree as
follows:
1. DEFINITIONS.
(a) WEBCAST DISTRIBUTION SERVICE: a service incorporating the Edge
Distribution Service and Ancillary Service.
(b) EDGE DISTRIBUTION SERVICE: The service provided by iBEAM,
whereby iBEAM distributes Content through a system of satellite communications
and/or terrestrial communications equipment, one or more computer servers, and
appropriate software to iBEAM defined entities which may include entities which
provide access to the Internet to consumers, commercial entities, users of
private intranets, and other third parties, both domestic and international,
regardless of the means of access to the Internet offered thereby.
(c) CENTRALIZED DISTRIBUTION SERVICE: The service will generally
conform to a service which allows users of the Internet to connect to an iBEAM
operated server/servers which contains the Content. Such access by Internet
users will be effectuated through the use of an iBEAM specified metafile.
Amounts of streams to be served, amounts to be kept as static, on demand or
HTTP, and bit-rate at which such streams will be served will be as mutually
agreed between the Parties and as are reasonable.
(d) ANCILLARY SERVICE: Any service provided by iBEAM beyond that
covered in the Edge Distribution Service and Centralized Distribution Service.
(e) CONTENT: The Content Provider's Internet Web site (s) or other
media as agreed upon mutually by the parties and provided by Content Provider to
iBEAM. iBEAM will accept the Content in Windows Media Player format and Real
format on the Centralized Distribution Service and, as it becomes available on
the Edge Distribution Service, including streaming MPEG for the Real G2 player.
Bit rates for the aforementioned formats will be as mutually agreed between the
Parties.
(f) TELECOMMUNICATIONS PROVIDER: Any entity with which iBEAM
contracts for telecommunications services for the purpose of providing the
Webcast Distribution Service.
2. CONTENT PREPARATION, DISTRIBUTION, SERVICE, LICENSE AND OWNERSHIP.
(a) CONTENT PREPARATION: iBEAM shall prepare the Content for such
services as Content provider has elected to have iBEAM provide. Content Provider
shall provide iBEAM with the access, to Content Provider facilities and/or the
Content, needed for iBEAM to prepare said Content and provide services that
Content Provider has elected to use. Content Provider understands that certain
equipment may need to be installed at Content Provider facilities and that such
equipment is wholly owned by iBEAM or its assigns. Content Provider understands
that iBEAM's performance and completion of the foregoing activities is dependent
in part on Content Provider's assistance and actions. Accordingly, Content
Provider will use reasonable efforts to timely provide iBEAM with the items,
access and assistance required to complete such activities, and any dates or
time periods relevant to performance by a Party shall be appropriately and
equitably extended to account for any delays due to the other Party.
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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(b) WEBCAST DISTRIBUTION SERVICE: Subject to availability and the
terms and conditions hereto, iBEAM undertakes to provide such Services as are
elected by the Content Provider for the term of this Agreement and specified
below. However, in the event that Content Provider materially breaches any
provision of this Agreement, iBEAM shall not be under any obligation to provide
any service.
(i) Edge Distribution Service: iBEAM shall provide the
Edge Distribution Service subject to the terms herein
for payment as specified in Articles 5(a). Included
in the Edge Distribution Service is basic Content
acquisition, as defined by iBEAM, which shall not
exceed terrestrial connectivity to Content Provider
location and retrieval of pre-encoded streaming media
in a form and format mutually agreed by the Parties.
Content Provider and iBEAM will work in good faith to
agree on reasonable time limits for on demand file
storage at MaxCasters.
(ii) Centralized Distribution Service: iBEAM shall provide
the Centralized Distribution Service subject to the
terms herein for payment as specified in Articles
5(b). Included in the Centralized Distribution
Service is live Content acquisition in a reasonable
and mutually agreeable manner, acquisition of Static,
on-demand or HTTP Content in a mutually agreeable
size and time of transfer over the Internet or by
physical transfer in an iBEAM specified format.
(iii) Ancillary Service: Subject to availability, iBEAM
shall provide such services as are mutually agreed by
the Parties at the then current negotiated price for
payment in a form and manner as set forth in Article
5(b).
(c) LICENSE: Content Provider hereby grants to iBEAM, solely for
distribution through iBEAM services that allow viewers to select the Content
from Content Provider web site and are redirected to iBEAM equipment, and iBEAM
accepts, a worldwide, non-exclusive, license to use, reproduce, market, promote,
host, distribute, display, perform, cache, and transmit Content in connection
with the Webcast Distribution Service for the purposes of this Agreement. This
license includes the right to allow Telecommunications Providers to perform the
same functions as iBEAM as part of the Webcast Distribution Service. iBEAM will
take reasonable precautions to prevent the unauthorized reception and use of the
Content, while being transported in the iBEAM network, and will take reasonable
security measures to prevent such unauthorized and unlawful use or copying by
third parties not intended under this Agreement to receive said Content.
(d) OWNERSHIP: Content Provider or its licensors retains all
right, title and interest to the Content. iBEAM or its assigns retains all
right, title and interest to all software, products, equipment, works, and other
intellectual property created, used or provided by iBEAM in connection with the
Webcast Distribution Service, and other activities performed by iBEAM pursuant
to this Agreement.
3. PROMOTION. Each Party shall have the right to make public announcements
and/or press releases using the other Party's name provided they have obtained
prior written approval, which shall not be unreasonably withheld.
4. TERM AND TERMINATION. This Agreement shall continue with full force and
effect for twelve (12) months from the Service Start Date (the "Initial Term")
and shall thereafter renew for successive one (1) year terms (each, a "Renewal
Term") unless terminated by either Party for any reason upon thirty (30) days
notice prior to the end of the Initial Term or any Renewal Term, as the case may
be, to the other party (the "Term"). In the event iBEAM changes its pricing or
services as set forth in Exhibit A, Content Provider may, prior to the effective
date of the new pricing, terminate, with thirty (30) days notice, during which
current pricing would apply, otherwise the Agreement will continue to the next
Renewal Term unless terminated pursuant to another provision of this Agreement.
Either Party may terminate this Agreement at any time, effective immediately,
upon written notice to the other Party, if such other Party: (i) breaches any of
its material obligations hereunder and fails to cure such breach (or to provide
evidence, to the other Party's reasonable satisfaction, that it is working
diligently towards curing and will have cured within an agreed-upon timeframe)
within sixty (60) days of receipt of written notice from the other party; (ii)
files a petition in bankruptcy; and/or (iv) makes an assignment for the benefit
of its creditors. Any such termination shall be without any liability to or
obligation of the terminating Party, other than with respect to any breach of
obligations under this Agreement prior to termination. In the event of
termination of this Agreement for any reason the following shall remain in full
force and effect: Article 2(d), and Articles 6, 7, and 8.
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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5. PAYMENT
a) iBEAM will provide the Edge Distribution Service at pricing
set forth within Schedule A. Payments shall be made in a manner consistent with
Articles 5(c), 5(d) and 5(e).
b) Any Centralized Distribution Service or Ancillary Service
elected by Content Provider and provided by iBEAM hereunder shall be at iBEAM's
then current negotiated rate for each service elected. Payments shall be made in
a manner consistent with Articles 5(c), 5(d) and 5(e).
c) Invoicing shall be on a monthly basis and all payments shall
be made net 30 days upon receipt of invoice to the address specified on each
invoice.
d) All prices set forth herein are exclusive of taxes with
regards to the Webcast Distribution Service. Content Provider is responsible for
any taxes associated with the Webcast Distribution Services.
e) Notwithstanding the above any Content Provider located outside
the United States must make payments via wire transfer to the account specified
within each invoice in US dollars.
6. WARRANTIES AND INDEMNIFICATION.
(a) Content Provider warrants and represents that: (i) it owns or
has properly licensed all rights in the Content necessary to grant the rights
and licensed granted hereunder; (ii) the Content is not obscene, infringing,
misappropriated, defamatory, or violates the privacy of a third party; and (iii)
all Content complies with all applicable federal, state and local laws and
regulations.
(b) iBEAM warrants and represents that: (i) it owns or has
properly licensed all rights in all technology used to implement the Webcast
Distribution Service necessary to grant the rights and licensed granted
hereunder; (ii) none of the technology used to implement the Webcast
Distribution Service infringes or misappropriates any intellectual property
right of a third party; and (iii) operation of the Webcast Distribution Service
complies with all applicable federal, state and local laws and regulations.
(c) Each party ("Indemnifying party") shall indemnify and hold
harmless the other party ("Indemnified party") for any breach or claim arising
out of or related to the Indemnifying party's warranties, including payment of
all damages, losses, expenses, costs and attorney's fees; provided that: (i) the
Indemnified party promptly gives the Indemnifying party notice of a breach,
claim, or threatened claim; (ii) the Indemnified party provides all reasonable
assistance to the Indemnifying party in defending the claim, at the Indemnifying
party's expense; and (iii) the Indemnifying party shall have sole control over
the defense of the claim and all settlement negotiations. No settlement shall be
effective (or indemnified) unless it is approved in writing by the Indemnifying
party. The foregoing indemnity shall be a party's sole remedy for a breach of
any warranty given by such party hereunder.
(d) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS ARTICLE, NEITHER
PARTY MAKES ANY OTHER WARRANTIES IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT, AND DISCLAIMS ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. IBEAM SPECIFICALLY DISCLAIMS ALL WARRANTIES THAT THE WEBCAST
DISTRIBUTION SERVICE WILL MEET ANY STANDARD OF PERFORMANCE OR ACCURACY OR THAT
IT WILL BE ERROR-FREE.
7. LIMITATION OF LIABILITIES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER OR ANYONE ELSE FOR DAMAGES IN EXCESS OF $250,000.00, SPECIAL,
COLLATERAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES,
LOSS OF SAVINGS, LOSS OF USE, INTERRUPTIONS OF BUSINESS, AND CLAIMS OF
CUSTOMERS) WHETHER SUCH DAMAGES OCCUR
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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PRIOR OR SUBSEQUENT TO, OR ARE ALLEGED AS A RESULT OF, TORTIOUS CONDUCT OR
BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT, EVEN IF EITHER PARTY HAS
BEEN ADVISED BY THE OTHER OR ANY OTHER THIRD PARTY OF THE POSSIBILITY OF SUCH
DAMAGES.
8. NON DISCLOSURE. Each party acknowledges that during the term of this
Agreement it may receive Confidential Information of the other party.
"Confidential Information" shall mean all business, technical and financial
information, whether in tangible form or communicated orally, which is labeled
or stamped "confidential," "proprietary," or words to that effect.
Notwithstanding the foregoing, any technology used by iBEAM to provide the
Webcast Distribution Service shall be deemed to be Confidential Information of
iBEAM. Excluded from the foregoing definition is information which: (i) is or
becomes generally known or available to the public other than as a consequence
of a breach of this Agreement; (ii) was properly known or otherwise available to
the receiving party prior to its disclosure; (iii) was properly disclosed by a
third party to the receiving party without restriction; or (iv) is independently
developed by the receiving party without access to Confidential Information. The
party receiving Confidential Information shall not, during the term of this
Agreement and for three (3) years after the termination of this Agreement,
disclose any Confidential Information of the disclosing party to any third party
or use any Confidential Information for its benefit or for the benefit of any
third party except as permitted herein. The receiving party shall take
reasonable precautions to maintain the confidentiality of all Confidential
Information, and in no case lesser precautions than the receiving party takes
with its own similar Confidential Information. Upon termination of this
Agreement for any reason, each party shall immediately return or destroy all
Confidential Information of the other party in its possession or control.
9. MISCELLANEOUS.
Force Majeure: Neither Party shall be responsible for the effects of
events of force majeure, including, but not limited to, an act of God, strike,
lockout or other interference with work, war declared or undeclared, blockade,
disturbance, lightning, fire, earthquake, storm, flood, explosion, network
failures, error in the coding of electronic files, software limitations, or
inability to obtain telecommunications services, governmental or
quasi-governmental restraint expropriation prohibition intervention direction or
embargo, unavailability or delay in availability of equipment or transport,
inability or delay in obtaining governmental or quasi-governmental approvals
consents permits licenses authorities or allocations, and any other cause
whether of the kind specified above or otherwise which is not reasonably within
the control of the Party affected.
Assignment: Neither Party may assign or transfer this Agreement or any
right, duty or obligation hereunder to any third party without prior written
consent of the other Party, and any such attempt shall be void and without
effect, except that a Party may assign this Agreement in its entirety to a third
Party that acquires all or substantially all of the business or assets of such
Party.
Choice of Law: This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of California, without regards
to its choice of law provisions. The exclusive jurisdiction for any legal
proceeding regarding this Agreement shall be in the courts of the State of
California and the Parties hereto expressly submit to the jurisdiction of said
courts.
Waiver: A waiver of a breach or default under this Agreement shall not
be a waiver of any subsequent default. Failure of either Party to enforce
compliance with any term or condition of this Agreement shall not constitute a
waiver of such term or condition.
Drafting: If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining portions shall not in any way be affected or
impaired thereby.
No Partnership: The Parties shall remain independent contractors to
each other, and neither Party shall have the right or authority to bind the
other Party to any obligation not expressly and unambiguously stated herein.
Notices: All notices hereunder shall be in writing, made via registered
mail or facsimile to the addresses first written above (or such replacement
addresses provided by proper notice), and shall be deemed to be received when:
(i) in the case of registered mail, on the date of registration or (ii) in the
case of facsimile, on the date indicated in the confirmation of transmission.
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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Integration: This Agreement supercedes and replaces any and all prior
agreements, understandings or arrangements, whether oral or written, heretofore
made between the Parties and relating to the subject matter hereof and
constitutes the entire understanding of the Parties with respect to the subject
matter of this Agreement. This Agreement may not be altered or amended except by
an express written agreement signed by both parties hereto.
IN WITNESS WHEREOF each party executes this Agreement by an officer duly
authorized to bind such party as of the date set forth below.
iBEAM Broadcasting Corporation Entertainment Boulevard, Inc.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx Xxxxx
--------------------------------- --------------------------------
Printed: Xxx Xxxxxx Printed: Xxxxxxx Xxxxx
---------------------------- ---------------------------
Title: Vice President Marketing Title: CEO
------------------------------ -----------------------------
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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SCHEDULE A PRICING
A: EDGE SERVING ON-DEMAND PRICING
------------------------- ------------------------
COMBINED VOLUME PRICE
------------------------- ------------------------
0-00 Xxxxxxx XX $0.0014 per Megabyte
transferred Transferred
------------------------- ------------------------
B: EDGE STORAGE CHARGES FOR ON-DEMAND CONTENT
------------------------- ---------------------- ---------------------- ----------------------
SPECIAL SPECIAL
ENTERTAINMENT ENTERTAINMENT
BOULEVARD PRICE BOULEVARD PRICE
------------------------- ---------------------- ---------------------- ----------------------
MB PASSED BASE STORAGE ADDITIONAL STORAGE ADDITIONAL STORAGE
(51 MB to 1000MB) (greater than 1000 MB)
------------------------- ---------------------- ---------------------- ----------------------
1-10 Million MB 50 MB $0.33 per MB Stored $1.10 per MB Stored
transferred
------------------------- ---------------------- ---------------------- ----------------------
C: REAL NETWORKS ADDITION
------------------------- ------------------------
COMBINED VOLUME PRICE
------------------------- ------------------------
ON DEMAND
------------------------- ------------------------
0-00 Xxxxxxx XX $0.0010 per Megabyte
transferred Transferred
------------------------- ------------------------
Pricing Evaluation: After the first ninety (90) day period pricing will be
subject to change at the end of each three month period as measured from ninety
(90) days from the Service Start Date. Notice of price change may be effectuated
anytime. In the event that Content Provider does not wish to continue the
Webcast Distribution Service at the new iBEAM proposed pricing they may
terminate this Agreement pursuant to Article 4.
Under no event will payments for any month be less than $500.00 per month for
Edge Distribution Service of On-Demand Content.
Total volume of Content Provider Content broadcast via satellite or stored will
be subject to iBEAM approval.
iBEAM hereby waives the first ninety (90) days of payment for the Edge
Distribution Service, thereafter pricing shall be as set forth above.
All information contained with this document is confidential to the Parties
hereto and shall not be reproduced or disclosed to any third party without
written consent of the Parties.
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