1
EXHIBIT 10.2
REALNETWORKS, INC.
XXXX.XXX GUIDE CO-BRANDED WEB PAGE AGREEMENT
This Xxxx.xxx Guide Co-Branded Web Page Agreement ("Agreement") dated
_____________, and ending on _______________ (the "Term"), between RealNetworks,
Inc., a Washington corporation located at 0000 Xxxxxxx Xxx., Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000 ("RN"), and Corpas Investments, Inc. ("Participant"),
located at the address set forth on Exhibit A sets forth the terms and
conditions under which RN agrees to promote and distribute links to a co-branded
RN and Participant web page that features Participant's multimedia content
("Content"), which, is more fully described herein and on Exhibit A.
For promotional value and other good and valuable consideration, the parties
agree as follows:
1. RN OBLIGATIONS
1.1 THE XXXX.XXX GUIDE. RN has developed, markets and distributes a streaming
and digital media "best of the web" Internet service currently known as the
"Xxxx.xxx Guide," which is organized by various genres of interest, such as
music, sports, or entertainment (each genre is a "Category"). As used herein,
Xxxx.xxx Guide means all versions of the service distributed during the Term,
however named or distributed. RN may, in its sole discretion, name, re-name,
modify, or change the branding, trademarks, user interface, functionality,
features or any other aspect of the Xxxx.xxx Guide at any time.
1.2 CO-BRANDED WEB PAGES. On certain web pages in each Category, RN displays
headlines that directly link to a co-branded web page containing multimedia
content specific to that Category (a "Co-Branded Web Page"). By way of example,
a music Category web page headline will directly link to a Co-Branded Web Page
that features music-related multimedia content. During the Term, RN shall
consult with Participant to create and host a Co-Branded Web Page that is
updated regularly, and features all of the following: (a) Participant logos, RN
logos, and aspects of Participant's web sites located at XXX.XXXXX.XXX /
xxx.xxxxxxxxxxxxx.xxx ("Participant's Site") and RN's web site located at
xxx.xxxx.xxx ("RN's Site");(b) at a minimum, three (3) links to Content; and (c)
up to seven (7) links from the Co-Branded Web Page directly to the Content or to
web pages on Participant's Site that contain Content. For the Term, RN agrees to
create a Co-Branded Web Page for Participant in the Category described on
Exhibit A.
1.3 MAINTENANCE OF THE PARTICIPANT'S CO-BRANDED WEB PAGE. As between RN and
Participant, and except as set forth in Section 2 below, RN is solely
responsible and liable for all costs and activities associated with the
creation, performance, maintenance, distribution of, licensing, use and
correction of the Co-Branded Web Page, excluding the Content.
1.4 PROMOTION OF PARTICIPANT'S CO-BRANDED WEB PAGE. RN will promote
Participant's Co-Branded Web Page, at its editorial discretion, in RN's
promotion services intended to promote Co-Branded Web Page, the Xxxx.xxx Guide
or the Category (the "Promotion Services"). Such Promotion Services may include,
without limitation, (a) promoting the Content and links to Participant's
Co-Branded Web Page from the Category, RN's Site and RN's products and services,
(b) featuring fifteen (15) second continous excerpts of the Content ("Excerpts")
and links to the Content in "Take 5," RN's proprietary, editorially-driven
streaming and digital media Internet promotion service; and (c) using
screenshots of Participant's RealChannel in marketing collateral for the
Xxxx.xxx Guide, or RN's products and services.
2. PARTICIPANT OBLIGATIONS
2.1 CO-BRANDED WEB PAGE OBLIGATIONS. Participant shall ensure the Content
complies with RN's Technical Specifications set forth on Exhibit C.
2
(a) NATURE OF CONTENT. Without limiting the foregoing, the Content
must be: (i) newsworthy, informational, educational or
produced for entertainment purposes, and not merely
promotional in nature; and (ii) encoded in RealMedia formats.
(b) AMOUNT OF CONTENT. Participant shall, within thirty (30) days
after the Agreement has been executed, provide RN with at
least three (3) clips of Content that total at least eight (8)
minutes in length. Thereafter, Participant shall always ensure
that at least three (3) clips of Content are available at any
given time. The Content may 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.
(c) MAINTENANCE OF THE CONTENT. Participant shall update the
Content at least three times per week and must notify RN of
any link updates at least four (4) times per month.
Participant will immediately notify RN of any outdated or
broken links. As between RN and Participant, Participant is
solely responsible and liable for all costs and activities
associated with the creation, performance, maintenance,
distribution of, licensing, use and correction of the Content.
RN assumes no responsibility for editing, reviewing,
controlling or any other activities associated 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.
(d) 2.2 Linking Obligations. Participant shall link to
Participant's Co-Branded Web Page from a relevant, prominent
location on Participant's Site. Participant may include a link
from Participant's Co-Branded Web Page (either from the
Content or from a SMIL presentation) to any web page, subject
to the following restrictions: (a) such link, including the
http request and all aspects of the linking process, may not
launch any third party streaming or digital media player, and
may not launch streaming or digital media content that is
encoded in a non-RealMedia format and (b) such link shall not
directly link to a web page that: (i) contains streaming or
downloadable audio, video, or other content in formats not
supported by the RealPlayer; (ii) provides end users with an
opportunity to download any non-RN streaming or digital media
software applications; or (iii) displays promotion or
advertising of any non-RN streaming or digital media software
applications.
2.3 PROMOTIONAL OBLIGATIONS. Participant's promotional obligations are as
follows:
(a) RN FORMATS ON PARTICIPANT'S WEB SITES. Participant agrees
that, during the Term, it will use commercially reasonable
efforts to offer all streaming and digital media on
Participant's Site in RealMedia formats, on a non-exclusive
basis. Participant will not promote any other streaming or
digital media format more prominently than its promotion of
RealMedia formats. Participant will not promote any other
streaming or digital media player on Participant's Site more
prominently than its promotion of RN's streaming or digital
media players. As used in this Agreement, "promotion" means
all links to streaming or digital media, including
advertising, and "more prominent" refers to the size and/or
placement of the promotion on Participant's Site.
(b) DOWNLOAD BUTTONS. Throughout the Term, Participant will
prominently display above the fold on each page of
Participant's Site that contains Content: (a) RN's standard
"Download RealPlayer and RealJukebox" buttons, which directly
link to RN respective RealPlayer and RealJukebox download web
pages on RN's Site; and (b) RN's standard "xxxx.xxx Guide"
button that directly links to the Xxxx.xxx Guide web page on
RN's Site. As used in this Agreement, "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.
-2-
3
3. LICENSE
3.1 GRANT OF LICENSE. Participant hereby grants RN a non-transferable,
worldwide, royalty-free license to: (a) use, display, perform, transmit,
distribute and redistribute the Content (including links to the Content) from
Participant's Co-Branded Web Page and the Xxxx.xxx Guide; (b) use, display,
perform, transmit, promote, link to, distribute and redistribute the Content via
the Promotion Services; (c) encode, copy, and create Excerpts of the Content and
transmit, publicly perform, distribute, and redistribute such Excerpts to end
users via the Take 5; and (d) use Participant's trademarks and logos (together
"Participant's Marks"), in the style and manner currently used by Participant
and as communicated to RN, (including screenshots and other images of
Participant's Co-Branded Web Page) in the Promotion Services, solely to promote
and market the activities described in this Agreement. Subject to the style and
manner restrictions communicated to RN by Participant, RN may use Participant's
name, trademarks, logo, and Content in RN's marketing and advertising materials.
Nothing contained in this Agreement will give RN any right, title or interest in
or to Participant's Marks or intellectual property or the goodwill associated
therewith, except for the limited usage rights expressly provided above.
3.2 RN TRADEMARK LICENSE. RN grants Participant a non-exclusive,
nontransferable, worldwide, royalty-free license to use RN's trademarks and
logos (together, "XX Xxxxx") in the style and manner currently use by RN and as
communicated to Participant. Nothing contained in this Agreement will give
Participant any right, title or interest in or to the XX Xxxxx or intellectual
property or the goodwill associated therewith, except for the limited usage
rights expressly provided above.
4. ADVERTISING
4.1 INTRA-STREAM ADS AND OTHER PARTICIPANT ADS. Participant is solely
responsible for and shall retain one hundred percent (100%) of the revenue from
its sale of audio, video, multimedia, streaming, banner, or any other form of
advertising embedded in the content by Participant ("Intra-Stream Ads"), and all
advertising on Participant's Site. Participant shall at all times clearly
differentiate advertising, including Intra-Stream Ads, from Content.
4.2 OTHER ADS. RN will retain one hundred percent (100%) of the revenue from its
sale of any non-Intra-Stream Ads on the Xxxx.xxx Guide, RN's Site, the Promotion
Services, RN's products and services, and Participant's Co-Branded Web Page. RN
shall at all times clearly differentiate advertising from the Content.
4.3 RESTRICTIONS ON PARTICIPANT'S ADVERTISING. Participant shall not run or
display any advertising for streaming or digital media technology, streaming or
digital media software applications or streaming or digital media websites owned
or operated by Microsoft Corporation, Apple Computer or MusicMatch Corporation
in the Content (including intra-stream advertising), or on any web page to which
such Content directly links.
5. PROPRIETARY RIGHTS
5.1 PARTICIPANT'S OWNERSHIP. Except as provided in Section 5.2 below as between
Participant and RN, Participant remains the owner of all right, title and
interest in and to the Content, the Co-Branded Web Page, Participant's Site,
Participant Marks, the Excerpts, and all copyrights, trademarks, and other
intellectual property rights therein. Notwithstanding the foregoing, RN will
retain all right, title, and interest in and to the XX Xxxxx.
5.2 RN'S OWNERSHIP. Except as provided in Section 5.1 above, RN shall be the
sole owner of all rights, title and interest in and to the Xxxx.xxx Guide, the
Promotion Services, RN's Site, RN's products and services, the XX Xxxxx, and all
non-Content made, created, developed or used by RN in connection with the
Co-Branded Web Page, the Xxxx.xxx Guide or the Promotion Services, and all
copyrights, trademarks, patents and other intellectual property rights therein.
-3-
4
6. WARRANTIES/INDEMNIFICATIONS
6.1 PARTICIPANT WARRANTIES. Participant warrants and represents that: (a) the
Content and Participant's advertising, do 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; (b) the Content and Participant's
advertising contains no matter which, if published, will be libelous or
defamatory; (c) Participant has the necessary rights to xxxxx XX the rights
granted hereunder; and (d) 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.
6.2 RN'S WARRANTIES. RN warrants and represents that: (a) the XX Xxxxx and any
content solely made, created, developed or used by RN for use in connection with
the Xxxx.xxx Guide, the Promotional Services, and Participant's Co-Branded Web
Page, excluding the Content and any third-party content, do not 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; and (b) it has the full power
and authority to enter into this Agreement and to perform its obligations
hereunder.
6.3 INDEMNITY. The parties hereby agree to indemnify, hold harmless, and defend
each other from all claims damages, costs and expenses, including reasonable
attorney's fees and litigation expenses arising out of or as a result of either
party's breach of any representation or warranty made in this Agreement. The
indemnifying party's obligations under this Section 6 shall be subject to the
indemnified party providing the indemnifying party: (a) reasonable 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 (b) 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 final non-appealable 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.
6.4 EXCLUSION OF CERTAIN DAMAGES. EXCEPT WITH RESPECT TO PARTICIPANT'S
OBLIGATIONS UNDER SECTION 6.1 ABOVE, 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.
7. TERMINATION
7.1 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 party
may terminate this Agreement upon fifteen (15) days' written notice to the
breaching party.
7.2 TERMINATION AND CONTENT QUALITY. RN reserves the right, at its sole
discretion, to terminate or temporarily suspend this Agreement immediately if
the quality of the Content detrimentally affects the quality of the Xxxx.xxx
Guide in any way ("Content Deficiency"), including, without limitation, the
quality of the Content or presentation of the Content, or the quality of the end
user experience. RN shall determine whether such Content Deficiency may be cured
by Participant, and, if so, RN shall use commercially reasonable efforts to work
with Participant to cure such Content Deficiency.
7.3 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 Content from the Xxxx.xxx
Guide and fifteen (15) business days to remove the Content from the Promotional
-4-
5
Services. Sections 5, 6, 7.3, and 8 shall survive the expiration or termination
of this Agreement for any reason.
8. MISCELLANEOUS
8.1 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: (a) if delivered personally with receipt acknowledged; or (b) sent by
Federal 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:
Xxxxx Xx XxxXxxxxx, Senior Vice President and General Counsel
ReaNetworks, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxxxxx 00000
X.X.X.
With a copy to:
Xxxx Xxxx
Vice President Media Publishing
At the same address
8.2 MISCELLANEOUS. 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. 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 exclusive
jurisdiction and venue of the state and federal courts sitting in the State of
Washington. Participant shall not issue any press releases relating to this
Agreement or the relationship between the parties without RN's review and prior
written consent to the press release. 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, understanding, 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
By: /s/ Xxxxx XxXxxxxx By: /s/ Xxxx Xxxx
------------------------ -----------------------
Name: Xxxxx XxXxxxxx Name: Xxxx Xxxx
Title: Dir/ Strategic Partnerships Title: President
Date: 7/17/00 Date: 6/26/00
-5-
6
EXHIBIT A
DESCRIPTION OF CONTENT
PARTICIPANT CONTACT INFORMATION:
FULL CORPORATE NAME: Corpas Investments, Inc.
Address: d/b/a MediaWebcast
City, State, Country Santa Monica, CA
Postal Code (if any): 90401
CONTACT PERSON: XXXX XXXX
Title: President
Phone: 000-000-0000
Fax: 000-000-0000
Email: XXXXX@XXXXXXXXXXXX.XXX
WITH COPY TO: Xxx Xxxxxx
Title: CTO
Phone: Same
Fax: Same
Email: XXXX@XXXXXXXXXXXX.XXX
Participant's Content will consist of the following: (insert short description):
PROVIDING EXTREME SPORT AND UFO CONTENT.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Xxxx.xxx Guide Category
---------------------------------------------------
Participant's URL: XXX.XXXXXXXXXXXXX.XXX and XXX.XXXXX.XXX
RN's URL: XXX.XXXX.XXX
7
EXHIBIT B
TECHNICAL OBLIGATIONS
All Content must be encoded exclusively in RealMedia formats (at least version
G2 and above)
