Exhibit 10.26
CONFIDENTIAL
WALL OF SOUND/VIDNET AGREEMENT
This is an agreement dated as of June 14, 1999, between Entertainment
Boulevard, Inc., a Nevada corporation located at 0000 Xxx Xxx Xxxxxx Xxxxx
000, Xxxxxx Xxx Xxx, XX 00000 d/b/a Vidnet ("Vidnet"), and ABC News/Starwave
Partners d/b/a ABC Internet Ventures ("AIV"), a New York general partnership
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000. In consideration of
the mutual premises and undertakings stated herein and Exhibit A attached
hereto and made a part hereof, the parties hereto agree as follows (the
"Agreement"):
1. TRADEMARKS
1.1 AIV IDENTITIES ON VIDNET SITE. AIV hereby grants to Vidnet a
non-exclusive, cost-free license (without the right of sublicense) throughout
the Term of this Agreement to use the Wall of Sound name and logo and other
proprietary identities of AIV (collectively, "AIV Xxxx(s)") in connection
with the Vidnet multimedia player (the "Player") which is displayed on Wall
of Sound (defined below), solely as stated in Exhibit A.
1.2 VIDNET IDENTITIES ON AIV SITE. Vidnet hereby grants a
non-exclusive cost-free license (without the right of sublicense) throughout
the Term of this Agreement to AIV to use the Vidnet name and logo and other
proprietary identities of Vidnet (collectively, "Vidnet Xxxx(s)") in
connection with AIV's website called "Wall of Sound" ("Wall of Sound")
currently located at xxxx://xxxxxxxxxxx.xx.xxx, solely as stated in Exhibit A.
2. CONTENT
2.1 LICENSE.
(a) AIV LICENSE. AIV hereby grants a non-exclusive cost-free
license (without the right of sublicense) throughout the Term of this
Agreement to Vidnet to use certain content owned and/or controlled by
AIV, as described on Exhibit A (collectively, "AIV Content") in
connection with the Player, solely as stated on Exhibit A.
(b) VIDNET CONTENT. Vidnet hereby grants a non-exclusive cost-free
license (without the right of sublicense) throughout the Term of this
Agreement to AIV to use the certain content owned and/or controlled by
Vidnet, as described on Exhibit A (collectively, "Vidnet Content") in
connection with Wall of Sound, solely as stated on Exhibit A.
2.2 CREATION OF CONTENT. Each party will be responsible for the
creation, development and publication of its respective Content. The parties
will consult regularly regarding creation of mutually beneficial Content.
Neither party will use the Content of each other's site in any way whatsoever
without the other party's prior approval.
2.3 QUALITY CONTROL. Each party agrees to maintain the quality of the
content of its site to at least the same level as has existed heretofore. If
either party, in its reasonable discretion, determines that the content of
the other party's site falls below this pre-existing standard of quality
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and does not otherwise meet the editorial standards and quality of its own
site, that party will notify the other party to that effect in writing giving
specific details of the failure to meet such standards and the party
receiving that notice 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 applicable site has not sufficiently
improved, the party that gave the original notice may terminate the Agreement
effective immediately upon the receipt by the other party of notice of
termination.
2.4 LIMITATION OF RIGHTS. Each party's use of the other party's Marks
and Content, as well as the use of the any links 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.
3. FINANCIAL
3.1 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.
3.2 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 and to retain all revenue it receives related
thereto. 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. Notwithstanding the foregoing, the parties
hereby acknowledge and agree that (i) AIV shall have the exclusive right
to transact advertising and promotional programs related to, to retain
all advertising inventory and set all packaging and pricing for any
advertising on and to retain all revenue it receives related to any
co-branded pages developed pursuant to this Agreement; and (ii) Vidnet
shall have the exclusive right to transact advertising and promotional
programs related to, to retain all advertising inventory and set all
packaging and pricing for any advertising on and to retain all revenue
it receives related to the Player.
(b) NO INTERSTITIALS. Neither party will transmit any so-called
"interstitial advertising" to users as they link from Wall of Sound to
the Player or vice-versa.
(c) ADVERTISING GUIDELINES.
(i) Vidnet agrees that any and all advertising included
on the Player shall comply with the AIV advertising
guidelines set forth on Exhibit B attached hereto.
(ii) Vidnet will not provide include any advertising on
the Player from the parties listed on Exhibit C attached
hereto. Further, in the event that, subsequent to the
execution hereof, AIV notifies Vidnet that any other
competitor(s) of AIV or competitors of AIV's exclusive
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partners should be added to Exhibit C, Vidnet agrees that
the foregoing restriction shall apply to such parties.
(d) CUSTOMER DATA. AIV shall own and retain all right, title
and interest in all names, addresses and other identifying information of
users of Wall of Sound, including, without limitation, any co-branded
pages developed hereunder and Vidnet will have no right to use any such
customer data.
4. APPROVALS
4.1 PRIOR APPROVAL REQUIRED. All uses by either party of the other
party's Marks and Content and links to each other's 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.
4.2 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.
5. TERM
5.1 TERM. When executed by the parties, this Agreement is effective as
of the date specified above and will continue until June 15, 2000 (the
"Term"), provided, that AIV may terminate the Term hereof at any time, upon
thirty (30) days written notice to Vidnet.
5.2 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 section 4.1 above.
5.3 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.
5.4 SURVIVAL. SECTIONS 2.4, 4.2, 7 AND 8 WILL SURVIVE THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT.
6. 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 part and its
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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 and 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 (including, without limitation, the
Player) 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
(including, without limitation, the Player) 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.
7. INDEMNIFICATION
7.1 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 and 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 (including, without
limitation the Player) 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 website (including, without
limitation, the Player) violates any intellectual property rights of
any third party, any allegation that any content on its website
(including, without limitation, the Player) is defamatory or violates
any privacy or publicity rights of any third party, and/or any of its
other obligations under this Agreement.
7.2 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.
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8. GENERAL
8.1 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.
8.2 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.
8.3 RELATIONSHIP OF PARTIES. This Agreement does not create a joint
venture, partnership or principal/agent relationship between the 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.
8.4 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.
8.5 APPLICABLE LAW. This Agreement will be construed according to the
laws of the State of New York, without regard to principles of conflicts
of law.
8.6 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.
8.7 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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ACKNOWLEDGED AND AGREED ACKNOWLEDGED AND AGREED
ENTERTAINMENT BOULEVARD, INC. ABC NEWS/STARWAVE PARTNERS
D/B/A VIDNET D/B/A ABC NEWS INTERNET VENTURES
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- --------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxx X. Xxxxxx
--------------------------- --------------------------
Title: CEO Title: VP and General Counsel
--------------------------- --------------------------
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CONFIDENTIAL
EXHIBIT A -- DESCRIPTION OF LICENSED CONTENT
Co-branded Vidnet/Wall of Sound Music Video Index Page
1) This video index page would be promoted from the Wall of Sound homepage,
artist pages, and in the music center on xx.xxx. Will receive a weekly
feature homepage callout on Wall of Sound.
2) Hosted on the xxxxxxxxxxx.xx.xxx domain entertainment center on Xx.xxx at
Infoseek's discretion.
a) Branded as "Wall of Sound Top Ten Videos, presented by Vidnet".
b) Includes links to Wall of Sound's top ten music videos, updated weekly
or bi-weekly.
3) Includes image of No. 1 artist and others to be mutually agreed.
a) Links open co-branded Vidnet/Wall of Sound Video Player, with streaming
content and player pages served by Vidnet.
b) Page and/or player Includes links to Vidnet's video subsections: Videos
A-Z, New on Vidnet, Rock/Metal, Pop/Dance, Jazz/Swing, Christian, Country,
Reggae, Urban, Latin, and Live. Top 20 is omitted so as not to compete
with the Wall of Sound Top 10, which may be the same as the Vidnet Top 10
(how the Wall of Sound Top Ten is listed will be determined by mutual
consent of both parties). The videos will be available in 28k, 56k, 80k,
and 300k transfer rates.
4) Ad revenues from banners on this page belong to Wall of Sound.
5) Wall of Sound will be serving co-branded pages for Vidnet with music news
and reviews. Both parties to agree on co-branding, provided, however, that
the parties agree that Wall of Sound/GO Network shall be the dominant brand
on such co-branded pages.
a) The headlines and the individual articles will be co-branded.
b) Any additional links to Wall of Sound created content will be branded
Wall of Sound exclusively.
OTHER LINKS
Wall of Sound artist pages will contain links to respective videos by that
artist on Vidnet. Each link would launch the co-branded player described
above.
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EXHIBIT B
AIV ADVERTISING GUIDELINES
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CONFIDENTIAL
EXHIBIT C
COMPETITORS
1. Xxxxxx.xxx
2. XxxXX.Xxx/Xxxxx.Xxx/XxxxxxxXxxxx.xxx
3. Xxxxxxxx.xxx/xxx.xxx/xxx.xxx
4. xxxxxxx.xxx
5. xxx.xxx
6. xxxxx.xxx
7. xxxxxx.xxx
8. xxxxx.xxx
9. xxxx.xxx
10. xxxx.xxx
11. xxx.xxx
12. xxx.xxx
13. xxx.xxx
14. xxxxx.xxx
15. xxxxxxxxx.xxx, xx.xxx
16. xxxx.xxx
17. xx0xxx.xxx
18. xxxxxxxxxx.xxx
19. xxxx.xxx, xxxx.xxx
20. xxxxxxxx.xxx
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