REALNETWORKS, INC.
REALCHANNELS AGREEMENT
This Agreement is made as of March 1, 2000 ("Effective Date")
between RealNetworks, Inc., a Washington corporation located at 0000 Xxxxxxx
Xxx., Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 ("RN"), and Entertainment
Boulevard, Inc., d.b.a. Vidnet ("Participant"), with an address as set forth on
Exhibit A.
This Agreement sets forth the terms and conditions under which RN
agrees to promote and distribute links to Participant's RealMedia content
(RealAudio, RealVideo, and other RN media types) and content headlines
described on Exhibit A (collectively "Content") as part of RN's RealChannels
program. In consideration for the mutual promises and covenants contained
herein, the parties agree as follows:
1. DESCRIPTION OF REALCHANNELS PROGRAM
1.1 REALCHANNELS ON THE REALPLAYER. Current versions of RN's RealPlayer
G2 software include buttons that link directly to live or simulated live
streaming media content delivered via the Internet ("RealChannels"). In this
Agreement, "RealPlayer" means all versions of RN's proprietary RealPlayer G2
software or subsequent versions that RN may introduce and distribute during
the Term, and includes both free and pay versions. RN may, in its discretion,
name, re-name, or change the branding or trademarks associated with the
RealChannels program (including releasing a version of the RealPlayer that
does not include the RealChannels program), or any other aspect of the
RealPlayer, at any time without notice.
1.2 CONTENT DELIVERY CHANNELS. The RealChannels drive pointers to the
Content into Web sites and "push" applications delivering information
directly to PC desktops via the publicly accessible Internet and into
proprietary online services and other specialized services (collectively,
"Content Delivery Channels").
2. RN OBLIGATIONS
2.1 INCLUSION ON CUSTOMIZATION PAGE. RN's Customization Page
("Customization Page") is a publicly accessible Web site that includes a list
of RealChannels from various RN content partners. Currently, the
Customization Page can be found at
http://208.147.89.194//customizerxml?GU=9330211032a02&PV=6.0.3.143&os=Win95%
204.0.50240&category=0&tier=0&id=0&I=en&lid=0. RN may change the location of
the Customization Page at any time. End-users of the RealPlayer can customize
the RealChannels of the RealPlayer by selecting content providers from the
RealChannels Customization Page. RN will include Participant's RealChannel
on the Customization Page during the Term.
2.2 SOFT DEFAULT REALCHANNEL. A version of the RealPlayer in the
language set forth on Exhibit A, (the "Local Language" RealPlayer) is
distributed to end users with certain pre-installed "soft default"
RealChannels. A soft default RealChannel is a RealChannel that is
automatically installed on an end users RealPlayer when the end user selects
a particular category of interests. For example, a soft default sports
RealChannel will be automatically installed in an end user's RealPlayer when
the end user, during the RealPlayer installation process or otherwise,
selects sports as a category of interest. RN agrees to include Participant as
a soft default RealChannel, in the category identified on Exhibit A, in the
Local Language RealPlayers distributed by RN during the Term, subject to the
limitations herein. Participant's RealChannel will be available as a soft
default in all standard, non-custom Local Language RealPlayers downloaded
directly from RN Web sites to end users in the United States, or sold in
non-bundled and non-customized versions through retail distribution in the
United States; in addition to the foregoing, RN may also, in its discretion,
offer Participant's RealChannel as a soft default in any or all other
RealPlayers or to end users outside the United States. Participant
acknowledges that RealChannels may be customized by individual end-users and
that any RealChannel, including soft default RealChannels, may be removed or
repositioned by end-users.
2.3 DISTRIBUTION OF CONTENT HEADLINES AND POINTERS. RN may use and/or
distribute the Content Headlines or pointers to Participant's Content, but is
under no obligation to do so.
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3. PARTICIPANT OBLIGATIONS
3.1 CONTENT HEADLINE SPECIFICATIONS. Participant shall, on a daily
basis, provide Content Headlines and information about the foregoing to RN
in compliance with RN's Technical Specifications, currently available at
xxxx://xxxxxxx0.xxxx.xxx/xxxxxxxxxxxxxxxx/xxxxx.xxxx, which RN may revise
from time to time.
3.2 NATURE OF CONTENT. Participant will provide Content for its
RealChannel in compliance with RN's Technical Specifications. Without
limiting the foregoing, the Content must be: (i) newsworthy, informational,
educational or produced for entertainment purposes, and not merely promotional
in nature; (ii) updated at least daily by Participant; and (iii) encoded in
the specified RN media formats available during the Term. Participant shall,
within thirty (30) days after the Agreement has been executed, provide RN
with at least three (3) clips of Content that are each at least ten (10)
minutes in length. Thereafter, Participant shall always ensure that at least
three ten-minute clips of Content are available at any given time. The
Content can be hosted by Participant or hosted by RN pursuant to the terms of
RN's standard Real Broadcast Network Services Agreement, if Participant has
signed such an agreement.
3.3 CONTENT QUALITY. RN reserves the right, in its sole discretion, to
terminate this Agreement if the quality of the Content does not meet RN's
standards concerning the RealChannels program in any way. In the event of
termination under this Section 3.3, RN will offer Participant a pro-rata
refund based on the Participation Fee as set forth in Section 5.1 and the
number of weeks left in the Term.
3.4 DOWNLOAD REALPLAYER BUTTON. Throughout the Term, Participant will
prominently display, on those pages of Participant's World Wide Web site
located at the URL set forth on Exhibit A ("Participant's Site") which
contain streaming media Content in RealMedia formats, an RN-approved standard
"Download RealPlayer" button, in the form provided by RN, the current form of
which is shown on Exhibit B. Such button will link to the download area of
RN's Web page from which end users may download free and/or pay (or "plus")
versions of the RealPlayer, in the Local Language version. Such button shall
be displayed either above the fold or at least as high and as prominently as
the most prominent streaming media link on each such page containing Content.
As used in this Section 3.4, "above the fold" means placement on a Web page
in a manner such that an end user viewing the page in a browser window of
640x480 pixels can view the entire button without scrolling.
3.5 REALGUIDE BUTTON. During the Term of this Agreement, Participant
will prominently display on Participant's Site, on those pages containing
content in RealMedia formats, an RN approved standard "RealGuide" button that
will directly link to RN's RealGuide. The current version of such button is
shown on Exhibit B.
3.6 USE OF REALMEDIA FORMATS ON PARTCIPANT'S WEB SITES. Participant
agrees that any media (including audio, video, animation or other content)
made available in streaming media formats on Participant's Site during the
Term will be made available in RealMedia formats (e.g., RealAudio, RealVideo,
or other RN proprietary media formats); such media may also be made available
in other streaming formats, provided that streaming media in non-RealMedia
formats shall not be made available on pages containing RealMedia Content.
Notwithstanding the foregoing, Participant may offer media in non-RealMedia
formats without offering such media in RealMedia formats if: (a) such media
was available on Participant's Site only in non-RealMedia formats prior to
the Effective Date; or (b) Participant is expressly precluded by written
agreement with a third party provider of such media from offering such media
in RealMedia formats. Participant will not promote any other streaming media
format on any page of Participant's Site containing RealMedia Content.
Participant shall link to its RealChannel from a relevant, prominent location
on Participant's Site. If Participant chooses to provide a link from its
RealChannel to Partcipant's Site, such link must be to a Web page containing
only RealMedia formatted content, if Participant includes streaming media
content on that Web page.
3.7 EXCLUSIVITY. Participant will not promote any other streaming media
player on any page of Participant's Site containing RealMedia Content. If
Participant chooses to provide a link from its RealChannel to Participant's
Site, or to any Web site, such link must be to a Web page that does not
provide the opportunity to download any software media player other than the
RealPlayer.
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3.8 MAINTENANCE OF CONTENT. As between RN and Participant, and except as
expressly provided herein, Participant is solely responsible and liable for
the Content, and RN assumes no responsibility for editing, reviewing,
controlling or any other activities with distributing any
of the Content and shall not be liable to any third party in connection with
such activities, whether or not RN undertakes such responsibilities.
Participant shall be solely responsible for all costs and activities
associated with the creation, maintenance, licensing, use and correction of
the Content.
4. LICENSE
4.1 CONTENT HEADLINES AND POINTERS. Participant hereby grants RN a
non-transferable, worldwide, royalty-free license to: (i) link to the Content
from the Content Headlines and Participant's RealChannel button through the
Local Language RealPlayer; and (ii) use, transmit, distribute and redistribute
Content pointers and other Participant links and descriptions of Content or
Participant's RealChannel(s) to Content Delivery Channels in order to make
Participant's Content accessible to Content Delivery Channel's end-users. RN
shall have the right to include links to Participant's Content from all
versions of RN's RealGuide, including syndicated versions, however named
or distributed.
4.2 TRADEMARK LICENSE. Participant grants RN a non-exclusive,
nontransferable, worldwide, royalty-free license to use Participant's
trademarks and logos in connection with this Agreement, in the style and
manner currently used by Participant and as communicated to RN. Subject to
such style and manner restrictions, RN may use Participant's name,
trademarks, logo, and RealChannel graphics in RN's marketing and advertising
materials. Except as expressly provided herein, RN shall not be deemed by
anything contained in this Agreement to acquire any right, title or interest
in any trademark of Participant, and shall do nothing to prejudice the value
or validity of Participant's rights therein or ownership thereof.
5. PAYMENTS
5.1 PAYMENT TO RN. Participant shall pay to RN the Participation Fee set
forth on Exhibit A for participation throughout the initial Term as a soft
default RealChannel within the Local Language RealPlayer. The full payment
is due and payable in U.S. dollars within ten (10) days of execution of this
Agreement, and is non-refundable, except as set forth in Section 3.3.
5.2 EXCLUSIVE OF TAXES. All payments due hereunder are exclusive of any
applicable taxes. Participant shall be responsible for all applicable
national, state, and local taxes, value added or sales taxes, tariffs,
exchange, interest, banking, collection, and other charges and levies and
assessments pertaining to payments other than U.S. taxes based on RN's income.
5.3 NO WITHHOLDING. All payments by Participant to RN pursuant to this
Agreement shall be made without any withholding or deduction of any
withholding tax or other tax or mandatory payment to government agencies. If
Participant is legally required to make any such withholding or deduction
from any payment to RN under this Agreement, the sum payable by Participant
upon which such withholding or deduction is based shall be increased to the
extent necessary to ensure that, after such withholding or deduction, RN
receives and retains, fee from liability for such withholding or deduction, a
net amount equal to the amount RN would have received and retained in the
absence of such required withholding or deduction.
5.4 PROVIDE RECEIPTS. In order to assist RN in obtaining tax credits or
deductions, Participant shall provide to RN, in form acceptable to
RN, original or certified copies of all tax payment receipts or other
evidence of payment of taxes by Participant with respect to transactions or
payments under this Agreement.
6. ADVERTISING
6.1 INTRA-STREAM ADS. Participants shall retain one hundred percent (100%)
of the revenue from its sale of audio, video, multimedia, banner, or other
advertising embedded in the Content by Participant ("Intra-Stream Ads").
Participant shall at all times clearly differentiate advertising from Content.
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6.2 OTHER ADS. Participant agrees that RN may insert pointers to RN's own
media-based advertisements prior to pointers to the Content clips that RN
distributes to Content Delivery Channels. RN shall at all times clearly
differentiate advertising from Content. RN will retain one hundred percent
(100%) of the revenue from its sale of any non-Intra-Stream Ads.
6.3 NO "AMBUSH" ADVERTISING. Participant shall not run Intra-Stream Ads or
non-Intra-Stream Ads in Participant's Live Station for streaming media
technology, streaming media players or streaming media websites owned or
operated by Microsoft Corporation or Apple Computer.
7. PROPRIETARY RIGHTS
7.1 OWNERSHIP OF CONTENT. As between RN and Participant, Participant
remains the owner of all right, title and interest in and to the Content and
any Content Headlines, and all copyrights, trademarks, and other intellectual
property rights therein. Notwithstanding the foregoing, RN will retain all
right, title, and interest in and to any Content Headlines authored by RN if
Participant fails to provide a headline for Content as specified in the
Technical Specifications.
7.2 RN'S OWNERSHIP. Except as provided in Section 7.1, RN shall be the sole
owner of all right, title and interest in and to any content made, created,
developed or used by RN in connection with the Content on RN's Web sites, the
RealChannels, and all copyrights, trademarks, patents and other intellectual
property rights therein. Participant represents and warrants that it has not
and shall not acquire any right or interest in any trademark or trade name
owned or used by RN, and that under no circumstances will it use, register
or attempt to register any trademark, service xxxx, trade name, domain name
or similar indicia containing the word "Real," or any other xxxx or domain
name used by or confusingly similar to a xxxx used by RN, regardless of
spelling or translation thereof.
8. WARRANTIES/INDEMNIFICATIONS
8.1 PARTICIPANT WARRANTIES. Participant warrants and represents that: (i)
the Content does not in any way violate any existing law, infringe upon or
misappropriate any copyright, patent, trademark, trade secret, right of
publicity, right of 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) Participant has the
necessary rights to xxxxx XX the rights granted hereunder; (iv) the Content
complies with all laws applicable to the transmission or use of the Content
as specified in this Agreement for each country is which the Content is
intended to be delivered; and (v) it is solely responsible for, and has
paid or will pay, all amounts due any person or entity that has a right
to receive any royalty or other payment as a result of RN's authorized
use of the Content pursuant to this Agreement. Participant acknowledges
that RN and its affiliates are the owners and/or licensees of the
trademarks, service marks, commercial symbols and trade names used by RN.
8.2 PARTICIPANT INDEMNITY. Participant hereby agrees to indemnify, hold
harmless and defend RN from all claims, damages, costs and expenses,
including reasonable attorneys' fees and litigation expenses, arising out of
or as a result of Participant's breach of the above warranties and
representations or this Agreement. Notwithstanding the foregoing,
Participant shall not be liable for any material not contained in or a part
of the Content Headlines and inserted in the Content Headlines by RN, whether
with or without the permission of Participant. Participant, at its own
expense, shall have the right to employ separate counsel and participate
in the defense thereof.
9. TERM AND TERMINATION
9.1 TERM. Unless sooner terminated as provided herein, the initial Term of
this Agreement shall commence as of the Effective Date and expire one year
thereafter. This Agreement will renew automatically for additional one year
periods, unless either party notifies the other party in writing of its
intent not to renew at least thirty (30) days prior to the end of the initial
Term or any subsequent renewal Term. As used herein, "Term" means the
initial Term and any renewal Term.
9.2 TERMINATION FOR BREACH. If either party materially breaches any
provision of this Agreement and such breach has not been cured within
fifteen (15) days after the other party has given written notice of such
breach, the non-breaching
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party may terminate this Agreement upon fifteen (15) days' written notice to
the breaching party. RN may terminate this Agreement immediately without
further notice if payment is not received in accordance with this Agreement.
9.3 TERMINATION FOR INSOLVENCY. RN may, at its option and upon written
notice, terminate this Agreement, effective immediately, should Participant:
(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
forty-five (45) days.
9.4 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement for any reason, all licenses granted herein shall terminate except
that RN shall have five (5) business days to remove Participant's RealChannel
and Content Headlines from Content Delivery Channels. Sections 5, 6, 7, 8,
9.4, and 10.4 shall survive the expiration or termination of this Agreement
for any reason.
10. MISCELLANEOUS
10.1 EXCLUSION OF CERTAIN DAMAGES. EXCEPT WITH RESPECT TO PARTICIPANT'S
OBLIGATIONS UNDER SECTION 8.2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY IN TORT, CONTRACT OR UNDER ANY OTHER LEGAL THEORY FOR ANY CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 NOTICES AND CONTACT INFORMATION. Any notice or payment to be made
or given to either party shall be sufficiently made or given on the date of
mailing if addressed to RN as set forth below or to Participant as set forth
on Exhibit A and (i) sent to such party by facsimile, the receipt of which is
confirmed by return facsimile specifically acknowledging receipt; (ii) if
delivered personally with receipt acknowledged; or (iii) sent by DHL
Worldwide Express or comparable international courier service for the soonest
possible delivery. Either party may change its notice and contact information
by providing notice, in the manner set forth above, to the other party.
RN:
Xxxxxxx Xxxxxxxx
Vice President, Media & Distribution
RealNetworks, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxxxxx 00000
X.X.X.
Fax: (000) 000-0000
With a copy to:
Xxxxx Xx XxxXxxxxx, VP & General Counsel
at the same address
Fax: (000) 000-0000
10.3 NON-ASSIGNMENT. This Agreement is personal to Participant.
Participant may not sublicense, assign, or otherwise transfer any of its
rights in this Agreement, without the express written consent of RN. If
Participant is acquired by or merges with a third party, or all or
substantially all of Participant's assets, or Participant's assets relating
to this Agreement, are acquired by a third party, RN may terminate this
Agreement, effective immediately upon written notice.
10.4 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by the laws of the State of Washington, United States of America,
without regard to conflicts of law provisions, and Participant consents to the
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exclusive jurisdiction and venue of the state and federal courts sitting in
the State of Washington. This Agreement shall not be governed by the United
Nations Convention of Contracts for the International Sale of Goods, the
application of which is hereby expressly excluded. Upon request by RN,
Participant shall execute any document or instrument, undertake any action, or
refrain from any action if such execution or action is reasonably necessary
to make the foregoing choice of law and choice of forum effective and
enforceable.
10.5 PRESS RELEASES. Neither party shall issue any press releases
relating to this Agreement or the relationship between the parties without the
other party's review of and written consent to the press release.
10.6 GENERAL. 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. Except as
specifically provided herein, 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. The parties are separate and independent legal
entities, and the relationship between the parties shall be that of
independent contractors. It is expressly understood that the parties do not
by this Agreement intend to form, nor shall this Agreement be construed to
constitute, a partnership or joint venture between them. 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 and the attached Exhibits, which are incorporated
herein by this reference, constitute the complete and entire 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.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
REALNETWORKS, INC. PARTICIPANT
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By: By: /s/ Xxxxxxx Xxxxx
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Name: Name: Xxxxxxx Xxxxx
-------------------------------- ------------------------------
Title: Title: CEO
------------------------------- -----------------------------
Date: Date: 3-9-00
-------------------------------- -----------------------------
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EXHIBIT A
DESCRIPTION OF CONTENT
PARTICIPANT CONTACT INFORMATION:
FULL CORPORATE NAME: Entertainment Boulevard, Inc. d.b.a.
Vidnet
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Address: 00000 Xxxxxx Xxxx. Xxxxx X
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City, State/Country, Los Angeles, CA
Postal Code (if any) 90066
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CONTACT PERSON: Xxxx Xxxxxxxx
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Title: VP Business Development
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Phone: 310-578-5404 x. 206
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Fax: 000-000-0000
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Email Xxxx@xxxx.xxxxxx.xxx
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WITH COPY TO: Xxxxxxx Xxxxx
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Title: President / CEO
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Phone: 000-000-0000
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Fax: 000-000-0000
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Email: Xxxxxxx@xxxx.xxxxxx.xxx
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PARTICIPANT'S CONTENT:
Participant's Content will consist of the following: (insert short
description): Streaming Entertainment-related media including Vidnet Music,
Vidnet Movies, Vidnet Sports
Participant's RealChannel Category: "Entertainment" Soft Default
Content to be hosted in the following datatypes (E.G., RealAudio, RealVideo,
RealPix): RealAudio, RealVideo
Local Language Version: English
Participant's URL: xxx.xxxxxx.xxx
Participation Fee: $175,000 "slotting" fee, $25,000 Creative and Launch Fee
+$0.10 per access, after a total number of 860,045
accesses to Vidnets' channel, capped at a maximum
additional charge to Vidnet of $100,000.
Payment of $95,000 Slotting Fee and $25,000 creative
and launch fee will be paid upon execution of contract,
remaining "slotting" fee shall be paid in two equal
payments of $40,000 each on June 1, 2000 and
September 1, 2000. After RN's
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minimum guarantee of $60,045 total accesses, Vidnet's
additional per access charges shall be billed monthly
EXHIBIT B
SPECIFICATIONS OF REALPLAYER BUTTON
RN GRAPHIC FOR RN SEARCH = 88 X 33-bitmap
[GRAPHIC]
SPECIFICATIONS OF REALGUIDE BUTTON
RN GRAPHIC FOR RN SEARCH = 128 X 67-bitmap
[GRAPHIC]
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