LICENSE AGREEMENT
THIS AGREEMENT made and entered into this 29th day of October, 1998,
between MARATHON SPORTS GROUP, INC., 00 Xxxx 00xx Xx. 0xx Xxxxx, Xxx Xxxx, XX
00000; its sublicensees, designees, successors and permitted assigns
(Hereinafter individually and collectively referred to as "Licensor") of the
first part
and
INTERNATIONAL NET BROADCASTING, LLC., 0000 Xxx Xxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxx Xxx, XX 00000 XXX, its sublicensees, designees, successors and
permitted assigns (hereinafter individually and collectively referred to as
"Licensee"), of the second part
WHEREAS, Licensor is actually engaged in the Dominion of North America
in the production of The Xxx XxXxxxxx Show, AKA "XxXxxxxx One on One"; and
WHEREAS, Licensee agrees in accordance with the terms hereof, to
provide design, marketing and on-line service for Internet Programming/Content
in the Licensed Territory, as the same shall be hereinafter defined.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and subject always to the terms and provisions hereinafter set
forth, the parties hereto agree as follows:
1. Licensor hereby licenses to Licensee the exclusive license to use
the following Programming/Content in and for the Licensed Territory:
a) The Programming/Content listed on Exhibit "A" attached
hereto and incorporated herein by this reference embodying that
Programming/Content entitled "XxXxxxxx One on One" (hereinafter referred to as
the "First Content"). This Programming/Content will be available from the INB
"Pro Sports Net" front page, and/or any other mutually agreed upon location on
the Licensee's Internet domain.
2. The rights herein granted by Licensor to Licensee are the
following for the Licensed Territory during the Term hereof:
a) The Term of this License Agreement shall commence October
27, 1998, and expire on the date one (1) year from the date of Delivery to
Licensee of all Content for which Licensee exercises its option, pursuant to
Xxxxxxxxx 0.x)0) hereof (hereinafter, individually and collectively referred to
as "the Term").
1) "Delivery" or words of similar connotation - shall mean
delivery to Licensee by Licensor, for the purpose of digital conversion and
distribution via the Internet, of: three-quarter (3/4) inch master video tapes
and digital audio tapes (DAT) of the content listed on Exhibit "A" or a direct
satellite feed if Licensee is able to retrieve a satellite feed. If content is
not delivered via satellite, the cost of the tape and the delivery of the tape
to INB shall be at INB's sole expense. These tapes are to be technically
satisfactory to Licensee. Licensor shall also mean delivery to Licensee of all
consents, approvals, copyright information, credits corresponding to these
master tapes, all at Licensor's sole cost and expense. The Delivery may also
be made available to Licensee by Licensee's providing an Internet server at
the said location of the XxXxxxxx One on One show at Licensee's sole expense.
2) Options: Licensor further grants to Licensee one (1)
option to acquire the exclusive license for the Licensed Territory for a
period of one (1) year. Should Licensor elect to exercise this Option,
Licensor shall notify Licensee in writing within thirty (30) days prior to the
end of the Initial Term. Failure by Licensee to exercise this Option shall be
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deemed termination of this Agreement. Should Licensee exercise its option, all
of the same terms and conditions as the Initial Term hereunder shall apply.
b) The right to use the name of XxXxxxxx One on One, Licensor
and any other person rendering services in connection with the Content only in
connection with the marketing of Content; During the Term, Licensee may refer to
XxXxxxxx One on One as Licensee's Internet Content Provider, only in the
Licensed Territory.
c) The unfettered right to market, promote, exploit, use and
control the said Content or derivatives thereof, the Content produced therefrom
and embodied therein, throughout the Licensed Territory. All such Content and
derivatives, and any and all copyrights therein and other rights pertaining
thereto, are and shall remain the sole and exclusive property of Licensor.
Licensor acknowledges this ownership and undertakes to protect such ownership at
its sole cost and expense. Licensee shall give Licensor prompt written notice of
any apparent or alleged infringement of any of Licensee's rights hereunder, or
of Licensor's ownership rights in and to the Content. In this regard, Licensee
shall have the sole right, but not the obligation to take all reasonable and
practical steps necessary to protect the copyright and trademark of Content in
the Licensed Territory and, if applicable, to renew and extend such protection.
Licensor shall additionally have the sole and exclusive right, but not the
obligation, to take all reasonable legal steps necessary to protect said
interests and to obtain redress and/or restrain any third party from any
unauthorized use of the Content in the Licensed Territory or the doing of any
act which infringes upon any Content. Licensee shall be able to participate in
any such action, PARI PASSU with the repayment to Licensor of its expenses.
Should Licensor receive any judgment, settlement or action, after the
reimbursement therefrom to Licensor (and Licensee, if applicable) of their
respective legal fees and costs incurred therein, any remaining proceeds shall
be divided between the parties hereto in the following percentages: Licensor:
70%, Licensee: 30%. Notwithstanding the foregoing, should Licensor fail or
refuse to take any of the foregoing actions, then, in addition to any of the
rights which Licensee shall have hereunder, either at law or in equity, Licensee
may (but shall not be obligated to) take such action in Licensor's and/or
Licensee's name, in which event any recovery from such action undertaken by
Licensee shall be the sole property of Licensee.
d) All rights in and to the Content licensed hereunder which
are not specifically granted to Licensee hereunder, are reserved by Licensor.
3. Both Licensee and Licensor agree not to grant to any other
person, firm or corporation in the Licensed Territory, any rights in the
Content which are contrary to the grant of rights herein.
4. For the purpose of the Agreement, the term "Licensed Territory"
and/or "Territory" shall be defined as The Internet.
5. In consideration for the rights herein granted, and Licensor's
full and faithful performance of all material terms and conditions hereof,
Licensee shall pay to Licensor with respect to all advertising revenues
generated a sum equal to that percent of the gross revenues actually received
by or on behalf of the Content hereunder, less any fixed costs that are
approved by Licensor. For the purposes hereof, the Revenue Split will be as
follows: Licensor 70%, Licensee 30%.
6. Payments by Licensee to Licensor of revenues due hereunder shall
be made in currency of the United States of America. Each payment shall be made
monthly, within fifteen (15) days following the end of each month. Such
statement shall be forwarded to Licensor, regardless of whether or not any
monies are due and owing to Licensor. All statements and payments made by
Licensee shall be binding on Licensor and not subject to any objection for any
reason, unless specific objection is made by Licensor in writing to Licensee
stating the basis thereof within eighteen (18) months after the date of each
such statement. Licensor shall not maintain any action, claim or proceeding
against Licensee in any form with respect to any such
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statement or payment unless a written objection notice is made and such
action, claim or proceeding is commenced against Licensee in a court of
competent jurisdiction within two (2) years after the date of any such
statement. Licensor has the right, at its sole cost and expense, to appoint an
independent certified public accountant to audit only those books and records
of Licensee which pertain to the revenues generated hereunder and only for the
purposes of verifying accounting statements. Licensee will cooperate fully
with such audit, which shall be during ordinary business hours, after at least
thirty (30) days notice at the Licensee's regular place of business where
Licensee keeps said books and records and be conducted so as to minimize
disruption to the Licensee business. All information derived by Licensor
during such audit shall be kept confidential, as same constitutes trade
secrets of Licensee. Licensor may only conduct an audit once in any calendar
year and only once per statement.
7. In the event that:
Either party shall fail to perform any of the material
obligations required of it hereunder and should the allegedly failing party fail
to cure any such alleged failure within thirty (30) days after receiving written
notice from the other party detailing same, or, if not possible to cure within
such thirty (30) day period, not commence such cure during such thirty (30) day
period and continue do pursue same; the non-failing, non-bankrupt and/or
non-insolvent party shall have the right to terminate this Agreement forthwith,
by written notice to the other party. In the event of such termination, all
executory obligations contained in this Agreement shall cease. Any monies
collected and/or received by a party shall be deemed to be monies held in trust
on behalf of the other party. In the event of termination of the Agreement
pursuant to this Paragraph, the rights granted to the Licensee hereunder shall
cease and terminate and shall, without notice or process, revest in Licensor and
Licensor shall in no way waive any revenues due hereunder.
8. Each party represents and warrants as follows:
a) That each party has not made and does not contemplate
making an assignment for the benefit of creditors, that no bankruptcy or other
proceedings based upon insolvency are pending or threatened against it, and that
there are no impediments, against it and that there are no impediments,
agreements or litigation, actual or threatened, which would prevent or impair
that party from performing its duties hereunder.
b) That Licensee is now and will use its best efforts to
remain, during the Term hereof, an active Internet Content provider within the
Internet industry.
c) Licensor warrants and represents that none of the Content,
nor its exploitation by Licensee will violate or infringe any common or
statutory right of any person or entity.
d) Licensee's acceptance of Content or the materials related
to the Content will not constitute a waiver of any of Licensor's warranties,
representations or agreements hereunder.
e) Each party is free to enter into and perform this Agreement
and each party's warranties and representations shall be true and correct upon
execution hereof, upon Delivery of the Content and shall remain in effect for so
long as Licensee has any rights to the Content.
9. Each party hereto agrees to and does hereby indemnify, save and
hold harmless, the other, its permitted assigns, licensees and its directors,
officers, shareholders, agents and employees from any and all liabilities,
claims, demands, loss and damage (including reasonable attorneys' fees and
court costs) arising out of or connected with any claim by a third party which
is inconsistent with any of the warranties, representations, covenants or
agreements made by the Indemnitor herein and agrees to reimburse Indemnitee,
on demand, for any
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payment made by Indemnitor at any time after the date hereof with respect to
any liability or claim to which the foregoing indemnity applies.
10. This Agreement is entire and sets forth the entire understanding
and agreement of the parties hereto, in respect of the matters herein contained.
This Agreement may not be altered, modified, canceled or terminated in any way
except upon agreement of the parties hereto in writing, and all rights and
remedies hereunder shall be cumulative and not limited by specification. All
signatures at the foot hereof shall make this a valid, binding and enforceable
Agreement between the parties hereto. In the event any payments due Licensor are
delayed or prohibited by currency restrictions or other government regulations,
Licensor shall be entitled to designate a local depository in the Licensed
Territory into which Licensee, at Licensor's expenses, shall deposit such
monies. In the event of any action, suit or proceeding hereunder, the prevailing
party shall be entitled to recover its attorneys' fees and costs from the
non-prevailing party. This Agreement does not create any partnership, joint
venture, agency or employment relationship between the parties hereto, their
relationship being that of independent contractors. No waiver of any breach,
conditions or covenants herein shall be deemed to be a waiver or consent to any
other breach, condition or covenant hereunder.
11. Any notice to be given under the terms of this Agreement will be
properly given if delivered in person to the addresses first given above, or if
mailed by prepaid postage, registered or certified mail, return receipt
requested or to such other addresses as any party may advise and if such notice
as aforesaid is delivered by mail, it shall be deemed to have been received at
noon on the fourth business day following posting. Notwithstanding the
immediately foregoing, in the event of the occurrence of a postal strike or
disruption of postal service occurring within six (6) days before or six (6)
days after the giving of any notice of as aforesaid, then and in that event such
notices shall be delivered in person and the option of giving notice by prepaid
registered mail or certified shall not be available to any party until the sixth
(6th) day following the termination of any such postal strike or disruption of
postal services.
12. This Agreement shall be construed only under the laws of the
State of California and the parties hereto irrevocably submit to the
jurisdiction of the Courts of the State of California, located in Los Angeles,
California. Any proceeding or action or process commenced in said Courts
arising out of any such claim, dispute or disagreement may, among other
methods, be served upon either by delivering or mailing same, via registered
or certified mail, addressed to that party at the address as set out above and
any such delivery or mail service shall be deemed to have the same force and
effect as personal service within the State of California. If any part of this
Agreement shall be invalid or unenforceable, it shall not affect the validity
of the balance of this Agreement.
13. This Agreement and the execution thereof shall inure to the
benefit of and be binding upon all of the parties hereto, and their respective
heirs, executors, administrator, successors and assigns, this Agreement to be
executed by their duly authorized officers on the day and date first above
written. Notwithstanding anything to the contrary foregoing, either party
shall have the right to assign this Agreement, in its good faith business
judgment, so long as the assigning party agrees to remain primarily liable for
its obligations hereunder to the non-assigning party and further so long as
any such assignee agrees in writing to be bound by the terms and conditions of
this Agreement.
Neither party shall be in breach or default hereunder if its performance becomes
impossible, impracticable or is hampered by reason of any act of God, war, fire,
earthquake, labor controversy, sickness, accident, civil commotion, epidemic,
act of Government, its agencies or officers, failure of technical or
transportation facilities or any other cause of a similar or dissimilar nature
not reasonably within that party's control or which that party could not, with
reasonable diligence, have avoided (hereinafter, individually and collectively
referred to as a "Force Majeure Event"). Upon the happening of any such Force
Majeure Event, Licensee, in addition to any other rights or remedies it may
have, including the right to terminate this Agreement, the non-breaching or
defaulting party may elect by notice to the other party to suspend the Term of
this
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Agreement for that period of time which any such Force Majeure Event
continues. In the event of any such suspension, the Term as applicable to any
Record, shall be automatically extended by adding a period of time equal to
the number of days of such suspension to the end of the applicable Term. In
such event, specific dates, periods and time requirements referred to herein
shall be postponed and extended accordingly. During any such suspension, all
agreements, covenants, and obligations of each party hereunder shall continue
in full force and effect. Notwithstanding anything to the contrary foregoing,
should any such Force Majeure Event continue for a consecutive period of time
equivalent to Two Hundred Seventy (270) days, then, in such event, either
party shall have the right to terminate this Agreement by notice to the other
party. However, in the event of any such termination, Licensee shall still be
entitled to a thirty (30) day shut-down period hereunder, once the Force
Majeure Event has ceased.
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The number of pages preceding this page is five (5).
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand and
seals on the day and date first above written.
MARATHON SPORTS GROUP
By: /s/ Xxx Xxxxxxxxx Dated: October 28, 1998
---------------------------------- ---------------------------------
Xxx Xxxxxxxxx, President
INTERNATIONAL NET BROADCASTING, LLC.
By: /s/ Xxxxxxx Xxxxx Dated: October 28, 1998
---------------------------------- ---------------------------------
Xxxxxxx Xxxxx, CEO
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Exhibit "A"
Four (4) hours of programming on a weekly basis of the "XxXxxxxx One on One"
show.
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