WEB SITE LICENSE AGREEMENT
This Web Site License Agreement, dated as of March 29, 2000, between
Xxxxx Xxxxxx at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("Xxxxxx"),
and PTN MEDIA, INC., a Delaware Corporation, with offices located at 000 X.
Xxxxxxxxxx Xxx Xxxxx, Xxxxxxxx 00000 ("PTN").
PTN desires to contract with Xxxxxx for an exclusive license for an area
of its on-line Xxxxxxxxxxxxx.xxx ("FW") Internet service and XXXXXX is
willing to grant such license and to render her services as hereinafter
provided. In consideration of the mutual agreements and covenants set
forth in this Agreement, the parties agree as follows:
1. Establishment of Service. PTN will design, produce and
maintain a designated area of approved content accessible to
users of the Internet at xxx.xxxxx.xxxxxxxxxxxxx.xxx. Access
to the service will be free of charge. Xxxxxx shall be the
sole country artist associated with the Service during the
term of the contract. PTN may also develop "premium features",
as well as a "boutique" that will permit visitors to the
service to purchase merchandise licensed, endorsed or selected
by XXXXXX ("Boutique Merchandise"); any such Boutique
Merchandise would contain such content and be offered at
prices and on terms, as may be mutually agreed by PTN and
XXXXXX. In connection with the service, PTN will, at its sole
cost and expense:
(a) Design and Maintenance. Maintain full responsibility
for the design, technical development, production,
maintenance (including customer phone support), and
fulfillment related to the Service.
(b) Marketing and Content. Coordinate all on-line
marketing efforts and work closely with XXXXXX and
her representatives regarding new content areas, and
other initiatives to ensure that XXXXXX maximizes its
association with PTN.
2. Use of Xxxxxx'x Name and Likeness. XXXXXX grants to PTN the
non-exclusive, nontransferable right to use her name and
likeness as reasonably necessary to create, distribute, and
promote the Service and to repackage and reformat information
contained in, or related to, the Service for promotional,
advertising and distribution-for-profit uses, in all media,
including but not limited to, print and electronic media. PTN
acknowledges that XXXXXX will not accept uses, which are in
conflict with XXXXXX'x existing or prospective agreements, and
shall notify XXXXXX of the intended use of her name and
likeness before they are used and any such use shall be
subject to XXXXXX'x prior written approval.
(a) For this purpose, upon execution by PTN, XXXXXX shall
provide to PTN with the use of then unpublished
photographs of herself, with respect to which XXXXXX
has full ownership rights. Xxxxxx shall be available
for a photo shoot (set up by PTN) for up to eight (8)
hours at a mutually agreed upon time. No payment is
owed by PTN to XXXXXX for this photo shoot or
resulting from the photo shoot, except that PTN will
bear all reasonable costs and expenses associated
with the photo shoot production, as agreed between
the parties. During the Contract Period, PTN shall
have the right to use photographs obtained through
this photo shoot for the promotion and advertising of
the Service as set forth above. All rights to use the
photos shall cease upon termination of this
Agreement.
(b) PTN shall have the right to use the Xxxxxx name, and
all approved images, on the Web and on-line networks
subject to Xxxxxx'x approval
(c) PTN shall have the right to use the Xxxxxx name and
approved likenesses on Internet access software.
(d) All rights of PTN to use the Xxxxxx name, likeness
and web address, xxx.xxxxx.xxxxxxxxxxxxx.xxx in
relation to the Service shall cease immediately upon
termination of this Agreement.
3. Services to be Provided. Xxxxxx shall provide access to PTN
staff to gather or Transmit information related to the
following aspects of her activities as they relate to fashion,
style or beauty: names of designers or brands of clothing worn
on prerecorded music products, names of designers or brands of
clothing worn on any and all music videos, details on a
touring wardrobe, personal styling data such as fitness or
beauty details, advance notice of wardrobe choices prior to
appearances or attendance at any awards shows or public
appearances, and other data that might be of interest to the
audience and is mutually agreed upon by PTN and XXXXXX.
(a) XXXXXX shall provide a voice recording of herself
welcoming persons to the Service.
(b) At least once per quarter, Xxxxxx shall be available
(by telephone or in-person, at her option) at
mutually agreed upon times (with no more than one
hour of actual time on-line per occasion), to conduct
exclusive interviews and/or chat sessions.
4. XXXXXX'x Availability. XXXXXX agrees to devote such time as
deemed necessary in PTN's reasonable discretion toward
performances of her duties hereunder. Whenever XXXXXX is
available, PTN understands and agrees that any such occasion
is subject to XXXXXX'x personal and professional schedule. If
XXXXXX confirms her availability and subsequently is unable to
appear due to illness, injury, or other emergency, such
non-appearance shall not constitute a breach of this Agreement
and XXXXXX shall not be responsible for any losses or expenses
incurred from such non-appearance.
5. Payments by PTN.
Site Revenues. If paid advertising is sold on the area of FW
located at xxx.xxxxx.xxxxxxxxxxxxx.xxx, revenue will be
divided evenly between Xxxxxx and PTN.
PTN common stock. Immediately upon final signature, Xxxxxx
shall be granted fifteen thousand (15,000) shares of free
trading, registered common stock of PTN Media Inc. as payment
for services to be rendered during the contract period. Xxxxxx
will be granted an additional fifteen thousand (15,000) shares
of free trading, registered common stock of PTN Media Inc. on
the first anniversary of final signature of this agreement.
The certificates shall be issued as follows: 12,750 to XXXXXX
and 2,250 to Titley Spalding and Associates for each contract
year.
(a) PTN will make any payments due to XXXXXX under this
Agreement on a monthly basis, within fifteen (15)
days following the end of the applicable calendar
month. Each such payment shall be accompanied by a
statement showing in reasonable detail how such
payment was computed.
(b) PTN shall keep true and complete books and records in
which all information necessary to determine and
verify all fees and payments contemplated hereunder
shall be reflected along with the amounts payable to
XXXXXX under the terms of this Agreement. PTN shall
maintain such books and records for a period of at
least (2) years after the termination of the Contract
Period. During the contract Period, and for a period
of two (2) years after the Contract Period, XXXXXX
shall have the right, at its expense and upon
reasonable notice to PTN, to examine or have examined
by its authorized representative, PTN's books and
records, at PTN's principal place of business, in
order to determine or verify all amounts due, and the
accuracy of any reports furnished by PTN under this
Agreement. In the event that an error is discovered
in the calculation of the amounts payable by PTN to
XXXXXX, the party that received the benefit of the
error shall promptly thereafter pay to the other the
amount of overpayment. If any underpayment by PTN for
any period examined by XXXXXX is five percent (5%) or
more, PTN shall pay XXXXXX'x reasonable out-of-pocket
costs with respect to such examination and the next
subsequent re-examination. XXXXXX'x receipt of any
statement, or any payment does not preclude it from
challenging the correctness of that statement or
payment.
(c) PTN shall reimburse XXXXXX promptly upon receipt of
an invoice therefor of all reasonable out-of-pocket
expenses incurred by XXXXXX under this Agreement and
approved by PTN in advance.
6. Provisions of Content, Additional Responsibilities of PTN and
XXXXXX. For purposes of this Agreement, the term XXXXXX
information means all information created and/or delivered by
XXXXXX to PTN for inclusion in the Service, including any
trademark, service xxxx, trade name or logo, or other
intellectual property, whether or not registered, included in
such information. XXXXXX shall be solely responsible for the
content of all XXXXXX Information, and represents and warrants
to PTN that to the best of XXXXXX'x knowledge (i) all XXXXXX
Information: (A) will be accurate and XXXXXX'x own and
original creation, except for information validly licensed for
use by XXXXXX or in the public domain; (B) will consist only
of information that XXXXXX is authorized to use and to
authorize PTN to use as contemplated in this Agreement; (C) to
the best of XXXXXX'x knowledge, will not constitute a libel or
defamation or conflict with any copyright, right of privacy or
other rights of any third party; and (D) will conform to all
applicable federal, state and local laws and regulations; and
(ii) XXXXXX has the full right and authority to grant the
rights and consents set forth herein. PTN shall be entitled at
any time to bring any concerns it has regarding XXXXXX
Information to the attention of XXXXXX, whereupon the parties
will cooperate in good faith to address PTN's concerns.
Subject only to the next sentence, PTN shall distribute XXXXXX
Information only as transmitted by XXXXXX, and shall not
authorize any third party to modify or edit such Information
without Xxxxxx'x prior written consent. If PTN, in its
reasonable judgment, believes that immediate action is
required with regard to any XXXXXX Information, PTN may
delete, modify or revise such information, provided that PTN
shall notify XXXXXX of such action prior thereto, if
reasonably possible (or, if not, as soon thereafter as
practicable) and all representations, warranties,
indemnifications and other obligations of XXXXXX wherever with
respect to such XXXXXX Information shall immediately terminate
and be of no force and effect.
(a) Transmission of XXXXXX Information. XXXXXX shall
transmit to PTN all XXXXXX Information and updates
thereof necessary for inclusion in the Service.
Information and updates shall be transmitted by
telephone or electronically in a format to be agreed
upon by PTN and XXXXXX, on a pre-scheduled basis
and/or as such information and updates become
available, as the case may be. PTN shall provide
XXXXXX with a Service number or numbers that will
allow XXXXXX to gain access to the Service at no cost
or charge for purposes of electronically delivering
XXXXXX Information and content updates. All content
supplied by XXXXXX shall be consistent with the
editorial standards used by PTN for content displayed
on the Service (which standards PTN reserves the
right to amend from time to time) provided PTN timely
and accurately conveys such standards to XXXXXX.
(b) Right, Title and Interest to XXXXXX Information. All
right, title and interest in XXXXXX Information,
XXXXXX Information, and Xxxxxx'x name and likeness
are and shall remain Xxxxxx'x, subject to the right
and license granted to PTN herein. PTN shall have the
right, at no cost, to use, display (privately or
publicly) and distribute XXXXXX Information, or any
portion thereof, on the Service or in connection with
any demonstration, promotion or advertisement of the
Service in any medium; to enter XXXXXX Information
into PTN's computer database; and to store, process,
retrieve and transmit the same on the Service. Any
use of the XXXXXX name and likeness, or XXXXXX
Information, shall be subject to Xxxxxx'x prior
consent (which consent shall not be unreasonably
withheld). PTN's rights hereunder shall include the
right to offer subscribers the option of printing and
downloading XXXXXX Information or any portion thereof
as a function of the Service generally.
(c) Operation of Service: Non-XXXXXX Information, Charges
for Service. PTN will have sole discretion to
determine all aspects of the operation of the Service
and all matters relating to the content, structure
and sequence of material appearing on the Service.
PTN represents and warrants to XXXXXX that, to the
best of PTN's knowledge, all content on the Service
other than XXXXXX Information (to the extent not
revised, modified or deleted by PTN) ("Non-XXXXXX
Information"), (A) will be accurate and PTN's own and
original creation, except for information validly
licensed for use by PTN or in the public domain; (B)
will consist only of information that PTN is
authorized to use; (C) will not constitute a libel or
defamation or conflict with any copyright, right of
privacy or other rights of, any third party; and (D)
will conform to all applicable federal, state and
local laws and regulations.
(d) Non-XXXXXX Information. PTN has the full right and
authority to grant the rights and consents set forth
herein. XXXXXX shall be entitled at any time to bring
any concerns it has regarding Non-XXXXXX Information
to the attention of PTN, whereupon the parties will
cooperate in good faith to address Xxxxxx'x concerns.
Nothing in this Agreement shall limit PTN's rights
regarding charges for any aspect of the Service
(including any product or service offered by PTN,
whether alone or in conjunction with others, through
means of the Service). All right, title and interest
to PTN's name, trade name(s), trademark(s) and
service xxxx(s) ("PTN Trademarks") are and shall
remain PTN's. Nothing herein shall be deemed to xxxxx
XXXXXX any proprietary rights to any of PTN's trade
name(s), trademark(s) or service xxxx(s). XXXXXX
shall have the right to use PTN Trademarks in
connection with advertising and promoting the
Service, subject to PTN's prior written consent, not
to be unreasonably withheld.
(e) Compliance with Applicable Law. PTN will be solely
responsible to ensure that all aspects of the Service
(other than the XXXXXX Information, to the extent not
modified or revised by PTN), including the promotion
thereof, shall comply with applicable law.
(f) Subscriber Agreement. PTN will distribute a
subscriber agreement prohibiting republication,
redistribution, public broadcast, public display,
resale, offering for resale or other commercial
exploitation of copyrighted or trademarked materials
published in the Service without the copyright or
trademark owner's consent.
(g) Compliance with Industry Standards. PTN represents
and agrees that the Service will at all times during
the Agreement be a first-class service, in content
and technical quality, and that the Service will
comply with all on-line broadcasting industry
standards.
(h) Database from Service. PTN shall own all information
received through the Service, including all names,
addresses, mail, and other information relating to
users of the Service obtained by PTN through the
Service, except that XXXXXX shall have access to the
mailing list obtained through the Service to use for
her own purposes. PTN agrees not to use any
information obtained through the Service in any way
to imply an endorsement by XXXXXX of any product or
service following the termination of this Agreement.
7. Exclusivity. During the term of this Agreement and subject to
the remainder of this Section, XXXXXX shall not: (i) license
the use of the XXXXXX name or likeness for any web site
dedicated to fashion, style and beauty that could reasonably
be considered competitive with xxxxxxxxxxxxx.xxx or (ii) be
employed by, act as a consultant to or otherwise render
services similar in the aggregate to those provided hereunder
with respect to any on-line service. This Paragraph is not
intended to prohibit XXXXXX from advertising on other sites,
providing services for other sites or on-line services such as
acting in a program to be broadcast over the Internet,
maintaining her own web site or licensing The XXXXXX name or
the likeness on the web sites of Xxxxxx'x licensees or others,
or participating in on-line interviews or articles.
(a) XXXXXX is not responsible for initiating action
against, enjoining or otherwise attempting to
dissuade any person or entity not licensed by XXXXXX
which in contravention of this Agreement uses the
XXXXXX name or likeness in promoting or advertising
any products or services which are the same as or
similar to or directly competitive with the service.
XXXXXX shall not incur any liability to PTN or any
third party arising out of any such activity by any
such person or entity. XXXXXX agrees that at PTN's
sole cost and expense, XXXXXX shall give such
reasonable assistance to PTN as may be required to
cause any such person or entity to cease and desist
from such activities, or in connection with any
lawsuit or other proceeding by PTN against such
person or entity.
8. Contract Period. The Contract Period will begin on the date of
this Agreement and will continue until the second anniversary
of the date the Service was launched (the "Termination Date"),
and thereafter may be extended for up to two (2) additional
one year periods upon written notice from PTN to XXXXXX at
least 30 days in advance of the then-effective Termination
date.
(a) Morals. If at any time during the Contract Period the
commercial association of PTN with XXXXXX is
substantially impaired by reason of her conviction of
a felony or commission of an act, which offends a
demonstrable majority of the people in the U.S., PTN
shall have the right to terminate this Agreement on
written notice to XXXXXX. Xxxxxx shall have the right
to terminate this Agreement on written notice to PTN
if at any time PTN Media is convicted of a felony or
commits an act, which offends a demonstrable number
of people in the United States.
9. Confidentiality. All information disclosed by either party to
the other party, including but not limited to the terms and
conditions of this Agreement or any other agreement between
the parties, trade secrets of the party, any nonpublic
information relating to any party s product plans, designs,
ideas, concepts, costs, prices, finances, marketing plans,
business opportunities, personnel, research, development or
know-how and any other nonpublic technical or business
information of a party, that is marked "Confidential" or
identified by the disclosing party in writing as confidential
before or within thirty days after disclosure to the receiving
party, will be treated as confidential by the receiving party
and not disclosed to any third party without the disclosing
party's prior written consent. "Confidential Information" as
referred to in this Section does not include (a) information
that is generally available to the public other than as a
result of disclosure in violation of this Agreement, (b)
information already known or which becomes known to the
receiving party from a third party source which is not, to the
receiving party's knowledge, under an obligation of
confidentiality, (c) information independently developed by
the receiving party (as shown by competent documentation), and
(d) otherwise confidential information that is required to be
disclosed by law, including administrative or judicial action.
Any breach of these confidentiality provisions will entitle
the injured party to see injunctive relief and damages.
10. Insurance. PTN agrees to provide and maintain, at its own
expense, product liability insurance with limits of no less
than $1,000,000.00 and within thirty (30) days from the date
hereof, PTN will submit to Licensor a fully paid policy or
certificate of insurance naming Licensor and XXXXXX as insured
parties, requiring that the insurer shall not terminate or
materially modify such policy without written notice to
Licensor at least twenty (20) days in advance thereof.
11. Indemnification.
(a) PTN Indemnification. PTN hereby indemnifies and
agrees to defend and hold XXXXXX and XXXXXX free and
harmless from and against all claims, costs,
liabilities, judgments, expenses or damages
(including reasonable attorneys' fees) (collectively,
"Damages") arising out of or in connection with (i)
any information, other than XXXXXX Information (to
the extent not deleted, modified or revised by PTN),
displayed on the Service, (ii) any breach of any
representation, warranty or covenant of PTN hereunder
or (iii) any use of or reference to Xxxxxx'x name or
logo or Xxxxxx'x name or likeness not expressly
permitted hereunder or based upon PTN's use of any
intellectual property other than Xxxxxx'x name or
logo or Xxxxxx'x name or likeness; except to the
extent any such Damages arise from the gross
negligence or willful misconduct of XXXXXX or its
employees or XXXXXX.
(b) XXXXXX Indemnification. XXXXXX hereby indemnifies and
agrees to defend and hold PTN free and harmless from
and against all Damages arising out of or in
connection with (i) relating to any XXXXXX
Information displayed on the Service (to the extent
not deleted, modified or revised by PTN), (ii) any
breach of any representation or warranty of XXXXXX
hereunder, or (iii) any use of or references to PTN's
name or logos not expressly permitted hereunder,
except to the extent such Damages arise from the
gross negligence or willful misconduct of PTN or its
employees.
(c) No Liability for Punitive or Consequential Damages.
Notwithstanding anything stated or implied to the
contrary herein, in no event shall either party be
liable to the other for exemplary, punitive or
consequential damages, even if advised of the
possibility of such damages, in any manner arising
out to this Agreement or the breach of any term,
covenant, representation, warranty or obligation
contained herein.
(d) Notification. Each party shall notify the other as
soon as reasonably possible of any claim of which it
becomes aware.
12. Remedies.
(a) Injunctive Relief. In the event either party
materially breaches this Agreement, PTN and XXXXXX
agree that, in addition to any and all other remedies
available at law or in equity, the non-breaching
party shall be entitled to injunctive relief to the
extent permitted by law from further violation of
this Agreement, during any proceeding as well as on
final determination thereof, without prejudice to any
other right of either party.
(b) Xxxxxx'x Liability not to Exceed Remuneration Paid to
XXXXXX by PTN. Notwithstanding anything to the
contrary herein, in the event PTN incurs any
expenses, damages or other liabilities (including,
without limitation, reasonable attorneys' fees) in
connection with this Agreement or Xxxxxx'x services,
Xxxxxx'x liability to PTN hereunder shall not exceed
the remuneration, excluding reimbursement of
expenses, actually paid to XXXXXX by PTN hereunder.
13. Relationship of the Parties. The parties to this Agreement are
independent contractors, and this Agreement shall not be
construed to create a partnership, joint venture, employment
or principal agent relationship between the parties. Each
party shall be solely responsible to compensate any employees,
agents or representatives employed or engaged by it to perform
duties under this Agreement and for all taxes, imposts, duties
and all charges of any governmental authority arising from its
activities under this Agreement. Neither PTN nor XXXXXX, nor
any other person or entity employed by either PTN or XXXXXX,
are authorized to make any warranty concerning the other party
or incur or assume any obligation or liability for the other
party and nothing in this Agreement gives or is intended to
give any rights of any kind to any third party, except as
expressly set forth herein.
14. Amendment, Waiver. No amendment to this Agreement shall be
valid unless such amendment is in writing and is signed by
both of the parties to this Agreement. Any of the terms and
conditions of this Agreement may be waived at any time in
writing by the party entitled to the benefit thereof, but a
waiver in one instance shall not be deemed to constitute a
waiver in any other instance. A failure to enforce any
provision of this Agreement shall not operate as a waiver of
the provision or of any other provision hereof.
15. Severability. In the event that any provision of this
Agreement shall be held to be invalid, illegal or
unenforceable in any circumstances, the remaining provisions
shall nevertheless remain in full force and effect and shall
be construed as if the unenforceable portion or portions were
deleted.
16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of New York.
17. Jurisdiction. Any and all suits or actions, whether federal or
state, for any breach of this Agreement, or otherwise arising
out of this Agreement, shall be filed and prosecuted in any
court of competent jurisdiction in the City of New York. The
parties hereto hereby consent and submit to the jurisdiction
of the courts in the City of New York, State of New York.
18. Notices. All notices or other communications hereunder shall
be in writing and shall be deemed to be given or made: on the
same business day when sent by confirmed facsimile, on the
next business day after mailing when delivered by overnight
courier or on the fifth business day after mailing if sent by
first-class, registered or certified mail to the following
address or addresses or such other address or addresses as the
parties may designate in writing in accordance with this
Section:
If to PTN: PTN MEDIA INC.
0000 X. Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
with a copy to: Xxxxxx and Eilen
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Telephone No. 000-000-0000
If to XXXXXX: 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
19. Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and
permitted assigns. Neither party may assign its rights or
obligations hereunder without the prior written consent of the
other party.
20. Execution in Counterparts. This Agreement may be executed by
the parties in counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of
which when taken together shall constitute one and the same
agreement. This Agreement may be executed by facsimile, and
signatures on a facsimile copy hereof shall be deemed
authorized original signatures.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
XXXXX XXXXXX PTN MEDIA, INC.
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------- ------------------------------
Name: Xxxxx Xxxxxx
Title: President
